• 125 petition for maintenance

Hello , I want to ask question regarding my sister who has recently suffered from Domestic Voilence & left the husband house due consistant pressure from him after 15 year of stay , she has a child of 14 year at the moment looking for only for MAINTANCE for her & child because she is not having any source of income . So kindly guide how to take this case forward
Asked 3 years ago in Family Law from Karnal, Haryana
Religion: Hindu
She can file a case under the provisions of protection of women from domestic violence act, 2005 seeking maintenance, residential rights and other reliefs.She can file a case seeking monthly maintenance for herself and for her minor child under section 125 c.p.c. along with the above case too or separately this alone. 
T Kalaiselvan
Advocate, Vellore
37091 Answers
403 Consultations

5.0 on 5.0

1) your sister can make application for maintenance under section 125 CR Pc for herself and the child 

2) since your  sister is not working court would award her maintenance The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.

3)it should be mentioned in application that your sister had been forced to stay separate on account of acts of domestic violence from her husband 

4) your sister can also file application under domestic violence act and seek maintenance under said act . the courts have held that DV act provides additional remedy to aggrieved wife . she can also seek alternative accommodation from her husband 

5) contact a local lawyer 
Ajay Sethi
Advocate, Mumbai
46891 Answers
2772 Consultations

5.0 on 5.0

Section 125 reads as under :

"125. (1) If any person having sufficient means neglects or refuses to maintain

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself.

A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct;

Provided that the Magistrate may order the father of a minor female child referred to in Clause (b) to make such allowance, until she attains her majority if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation:- For the purpose of this chapter.

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained majority :

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due :

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation:---If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refused to live with him.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

5)(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

In Baburao Akaram Kalaskar v. Kusum Baburao Kalaskar, 1980 Mh.L.J 871 the spouses were married on 12th May, 1965 and lived together till August 1969 when the wife left the husband's house and went to her parents house. She lived there for about two and half years and filed a petition under section 10 of the Hindu Marriage Act alleging cruel treatment meted out to her by her husband and desertion by the husband who was alleged to have married a second wife. Pending the petition under section 10, the wife filed an application under section 125 of the Code. Pending her application under section 125 her petition under section 10 was dismissed on 28th September, 1977. The Magistrate, however, granted her maintenance in the proceedings under section 125. Revision filed by the husband was dismissed by the Sessions Court and the husband approached the High Court under section 482 of Criminal Procedure Code contending that in view of the earlier order passed in a petition under section 10 of the Hindu Marriage Act, the application under section 125 was liable to be dismissed. The learned Single Judge S.W. Puranik, J., took the view that on the same set of facts as were alleged in the two proceedings one under the Hindu Marriage Act and the other under section 125 of the Code, there was no change of circumstance from 1969. The earlier decision of the Civil Court showed that the husband had ill-treated the wife and that he had not remarried and further that he had not driven the wife out of the matrimonial house or withdrawn himself from her society. It was implicit in this decision of the Civil Court that it was the wife who was living away from the husband without a valid cause. In this view of the matter, this Court allowed the husband's petition and dismissed the wife's application for maintenance under section 125.
Ajay Sethi
Advocate, Mumbai
46891 Answers
2772 Consultations

5.0 on 5.0

1. If your sister is a victim of domestic violence and is not earning she can file a case for maintenance for herself and also her son. It is the duty of her husband to compensate her for the violence which she has suffered.

2. Your sister  should engage a lawyer and set the process in motion.
Ashish Davessar
Advocate, Jaipur
23176 Answers
641 Consultations

5.0 on 5.0

Dear Querist
your sister may file a maintenance case against her husband before the family court u/s 125 of Cr.P.C. and claim maintenance for herself and for the child.

she may also file a domestic violence case against husband and claim protection, residence, maintenance, child custody & compensation under section 12/18/19/20/21 & 22 of Protection of Women from Domestic Violence Act-2005
Nadeem Qureshi
Advocate, New Delhi
4880 Answers
226 Consultations

4.9 on 5.0

Your sister can file complaint before first class magistrate for maintenance under section 125 crpc for herself and her child. 

Domestic violence act also provide monetary relief for the victim but this is not additional relief. its maintenance order becomes set off in proceeding under section 125. 

So it is good for you to proceed with the provision provided in section 125 crpc. 

contact a lawyer, prepare a complaint and file such complaint before concerned magistrate. It is mandatory for the court to pass order of interim maintenance order within 60 days from the date of filing of complaint if husband is trying to linger on this issue. 
Shivendra Pratap Singh
Advocate, Lucknow
5066 Answers
78 Consultations

4.9 on 5.0

 your sister has options to file for maintenance under different provisions of law
1. she can file under sec.125 Cr.P.C  for maintenance for herself and child. 
2. She can file petition under protection of women from Domestic violence act 2005, under sections 18 to 22 .in this she can ask for a seperate accommodation, maintenance for herself and child , child's educational expenses, you can also ask for protection orders if her husband physically assault her and is a danger to her health and life.
Your sister can ask for prohibitory orders from her husband along with the protection order.
Your sister's husband is supposed to provide her his wife and child a place to stay and expenses to maintain them .
3. Under the above act sec.23 gives you a provision to move an interim application along with the main application , so that court will order an interim relief of all prayers what you ask in the petition like maintenance and other relief according to her individual need. 
4. Your sister can also file petition for maintenance for herself and child in a district/family court .
It is better to start immediately a legal step so that order will come before the child turns 18.
Consult an Advocate locally  and proceed further 
Thresiamma G. Mathew
Advocate, Mumbai
1515 Answers
139 Consultations

5.0 on 5.0

1. First let your sister decide what does she want. Does she want to continue with her husband?

2. If she does not want to continue with her husband, then let her file a DV case and a divorce suit also claimning adequate alimony,

3. She can also negotiate with her husband for mutual consent divorce (with adequate compensation) wwhich is faster.
Krishna Kishore Ganguly
Advocate, Kolkata
18818 Answers
454 Consultations

5.0 on 5.0

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