• DV maintenance vs Section 125 CrPC maintenance

Dear lawyers,

My wife has filed DV case in her native place at a distance of 250 kms against all my family members with false and immoral allegations. So I divorced her by pronouncing triple talaq in presence of two witness and sent the talaqnama and she acknowledged it. She also challenged Talaq by filing a civil suit in my native place with some untenable grounds and i submitted my statement for it and matter is pending trial.

During DV trial she has not proved any allegations except i failed to maintain her and children after she left the matrimonial home. Hon'ble Magistrate considered this as mental cruelty and awared maintenance of Rs 14,000 pm against my salary of 42,000 along with arrears of 3 lakh rupees and dischared my parents and sisters from the case as the allegations against them are baseless. 

In fact she has left my home during her 7th month of pregnancy by conducting ceremony and i provided photo proof for the same and she stayed at her own will and against my consent at her parents house for 1 year even after the child delivery with an intention to intimidate me to set up separate home away from my old aged parents.She also attended mediations prior to the filing of her DV case but no where she raised any allegations as stated in DV petition.

The Court has not considered the overall facts and circumstance of the case and stated that she was subjected to domestic violence because of non maintenance of her and children when she was staying at her parents house and stated that it is continuing offence even though no act of violence was proved when she was in my home. Also he told that talaq is under challenge so she is entitled to maintenance and further stated that it is the responsibility of the husband to maintain them and i failed to do it.

Though I prefer for appeal in DV case, I know she is also entitiled for maintenace under CRPC 125, where also she can get the same amount of maintenance. So the appeal will lead me to face another case for which i really fed up already because of DV case which ran for 2 years and also to fight the new case in her native  and my office work also spoling.

Please suggest me,

1.Is it good to go for appeal now and come out clean hands in DV case and pay maintenance only under 125 crpc if she file for the same?

2.Paying maintenance under DV act will have any negative impact in my future when compared to pay maintenance under 125 crpc?

3.Once my talaq got proved in civil court, Can i file petition to stop her maintenance under DV act. Or will it be applicable only for maintenance under 125 CRPC?

Kindly advice me.
 
Regards
Ibrahim
Asked 2 years ago in Criminal Law from Coimbatore, Tamil Nadu
1. Though she is and will be entitled to maintenance u/s 125 crpc since such case is not filed as yet it is prudent to prefer an appeal.
2. You should take the plea of dissolution of marriage as ground for challenging the DV Order. Since Triple Talaq is pronounced and it has not been set aside by any civil court as yet, PWDV Act does not apply to you anymore.
3. No need for final decision. As sated above consequences of Talaq applies now in PWDV Act though it will not make any effect in 125 crpc case but as long as it is not filed take the advantage of Talaq.
Devajyoti Barman
Advocate, Kolkata
5222 Answers
54 Consultations
4.9 on 5.0
The wife is entitled to claim maintenance under section 125 Cr.P.C. even if she doesn't file for the same because when a DV case is filed, the court may on its own motion grant such relief to the wife if proved that she cannot maintain herself. further, if the talaq is still pending, as per customary law, it is valid until it is set aside. has any stay been granted by the court where the talaq has been challenged? if not, the same is valid until any adverse order is passed against it. hence, it is advisable that you challenge the award passed by the court to the extent that it is unreasonable. 

further paying maintenance will not have any negative impact as compared to paying maintenance under 125 cr.pc.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
Hello,
1) You need to go ahead and prefer an appeal in the Domestic Violence case as domestic violence was not proved but a maintenance ordered as she and children have not been maintained. Regardless of the maintenance ordered it would be the best ploy to challenge the quantum of maintenance and the order as such.This can help reduce the amount of maintenance

2) As the triple talaq has been pronounced and accepted by  your wife and has not been set aside by a civil court, which it is unlikely, the wife will lose her right to claim maintenance, but you will be liable to pay maintenance for the children.

3) There will be no adverse effect on any future petition preferred under section 125 of CrPC as whenever such application comes before the court it will make reference to any pending litigation for maintenance and if such petition as been discharged it will take an independent view of the current case. As mentioned above your ex wife will not be able to seek maintenance; but can file for maintenance for children. You will need to provide maintenance till they turn majors.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1. It is always advisable to go for appeal challenging an advserse order,

2. If she files petition u/s125 of Cr.P.C., later on. contest it accordingly at that time,

3. You have been advised to file an appeal challenging the said DV order,

4.  Yes, if the case challenging the Talaq goes in your favoyr, you can file a petition for stopping payment of maintenance as per DV Act.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
Hi,
 .
1. you should file appeal for  as there is  a chance the quantum of maintenance can be reduced on the fact that your wife left the matrimonial home by her own will and no cruelty by  any of your family members are established
2.  Maintenance  for children shall be upheld as it is  right of the children under provisions different law.
3.  You should defend the civil case challenging the talaque.
 4. If the Talaque  is upheld by the court automatically the existing cases can be defended in your favour.
5. Did you try to settle the matter amicably as the present fight is time consuming and waste of money.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. Filing an appeal should be the next legal recourse in the scenario narrated by you. Since triple talaq pronounced by you has not been set aside by the court DV Act does not apply to you. Before a stay is ordered on triple talaq you may challenge the DV order.

2. Should you decide to pay maintenance to her in DV case it will not have a negative impact on the 125 crpc case. In 125 crpc the court is required to arrive at its own finding regardless of what has transpired in DV proceedings between the spouses.

3. You can file a petition to stop maintenance to her under DV Act in the event her case challenging triple talaq is dismissed, albeit it will have no effect on 125 crpc proceedings. 

4. It may also be mentioned that you are not required to appear personally in the court during appeal as the presence of your lawyer shall suffice.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
You must challenge DV order by way of an appeal.If she files 125 cr.p.c contest the same strongly. Paying maintenance under DV will have no effect on 125 petition.In case you get favourable orders in suit challenging Talaq, file petition for stopping payment of maintenance in DV orders.
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
You can file an appeal even after 30 days with a petition for condonation of delay giving reason for delay of each day.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. You can go for an appeal after 30 days, but the court may or may not accept the appeal if it is filed after 30 days. If the appeal is refused you will lose a valuable legal right. To avoid losing this right it is prudent to move the appeal within 30 days.

2. There is no hard and fast rule which lays down that first month's maintenance is to be paid. It is for the court to decide as to on what conditions the appeal is to be heard.

3. In addition to proceedings of appeal, you are also not required to be present in the lower court.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:


1.Is it good to go for appeal now and come out clean hands in DV case and pay maintenance only under 125 crpc if she file for the same?

Opinion: If she is unable to maintain herself then no need to file an appeal against this order but if there is any proof in your favour like, she is working, earning, liveing in adultry then you may file the appeal against the order, practically in appeal on maintenance matter, merely success because wife and child is the legal and social liability of Husband.


2.Paying maintenance under DV act will have any negative impact in my future when compared to pay maintenance under 125 crpc?

Opinion: She can claim in both case but entitled only one maintenance which one will be highest.

3.Once my talaq got proved in civil court, Can i file petition to stop her maintenance under DV act. Or will it be applicable only for maintenance under 125 CRPC?

Opinion: If you send the talaqnama with Iddat period maintenance and Mhar amount then only the Talaq is valid otherwise talaq is not valid in the light of Quran & law too. She will be entitle to get maintenance from you even after divorce.
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
the wife has parity with husband. you had a chance to escape from giving maintenance. but at this time you have given divorce and she is remain unmarried so it is your responsibility to maintain her throughout her life or till her remarriage. divorced wife has right to get maintenance throughout her divorced life but married wife living separate without any reasonable cause has no right to get maintenance.  amount of maintenance either ordered by the court in DV act or sec 125 or both it shall be treated one maintenance because in deciding alimony court shall take consideration of maintenance ordered in any prior proceeding so person entitled to get only one maintenance. prior maintenance order always corroborate and does not give negative impact.  it does not matter that civil suit, regarding talaq, will decided in your favour or not because in all conditions you are bound to maintain her.
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
4.9 on 5.0

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