Wife can't file sec 125 CrPC & DV on same grievances

S. Suriya Devi vs Thilip Kumar

Madras HC

26/06/2018

Crl.O.P.Nos.27507 & 10089 of 2017 and Crl.M.P.Nos.6680 & 6681 of 2017

About/from the judgment:

If the wife wants to modify an order made under Section 125 of the Code, seeking enhancement of the maintenance amount, the only option available for her is to file a petition under Section 127 of the Code before the same Magistrate, who passed the order. In other words, the order made under Section 125 of the Code can be modified or varied only by the same Magistrate, who passed the earlier order. An order made under Section 125 of the Code for maintenance by one Magistrate cannot be varied or modified by a Magistrate acting under Section 20 of the Act. Therefore, it should be noted that a monetary relief granted towards maintenance passed under Section 125 of the Code. If an order has already been made under Section 125 of the Code for maintenance, there can be no doubt that the wife had proved either neglect or refusal on the part of the husband. If the wife wants an order under Section 20 of the Act, in addition to the order under Section 125 of the Code, she has to prove fresh acts of the husband constituting the domestic violence subsequent to the passing of the earlier order under Section 125 of the Code. She cannot rely on the acts of the husband constituting domestic violence, which happened prior to the 16 passing of the order under Section 125 of the Code. For getting an order under Section 20 of the Act, in addition to the earlier order under Section 125 of the Code, the wife should plead and prove that subsequent to the said order made under Section 125 of the Code, the husband had caused domestic violence and on account of the same, she had suffered loss and thus, she is entitled for additional amount as maintenance. Thus, it is manifestly clear that a previous order made under Section 125 of the Code is not a bar for an aggrieved wife to approach a Magistrate under Section 20 of the Act, for monetary relief as an additional relief of maintenance, provided subsequent to the passing of the earlier order under under Section 125 of the Code, the husband has committed domestic violence resulting loss to the wife.

 

In the present case in hand, I have perused the pleadings in the petition filed under Domestic Violence Act for monetary relief as well as the petition under Section 125 of Cr.P.C., seeking for maintenance. The grievance of the respondent and the cause of action alleged in both these petitions are one and the same. The respondent herein had already invoked the provisions of the Domestic Violence Act seeking for monetary reliefs among other reliefs on 25.05.2016. Subsequently, she had invoked the provisions under Section 125 Cr.P.C., on 08.02.2017. In the petition under Domestic Violence Act, the respondent herein had sought for a direction to pay a sum of Rs.50,000/- for maintenance under Section 20(3) of the Domestic Violence Act. In the subsequent maintenance case filed under Section 125 Cr.P.C., the respondent herein had sought for a monthly maintenance of Rs.1 lakh.

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