When it is a "do or die" situation, one must put your best fight diligently and leave the rest to Almighty...
You may use the below points to fight the interim maintenance in your DV case which have been raised by me as well(fate and affect is unknown as application not yet decided):
1. That having capacity to work and not working falls under the maxim of Anglo-Saxon jurisprudence that is "no person can be allowed to incapacitate himself". When the complainant is an able bodied person having capacity to earn, is earning presently and, in her own admission, has actually been earning income during the last 6/7 years by taking tuitions and working in a school, she is not entitled to receive any maintenance.
2.You may use the suitable citations from the list below:
a. Daman Reet Kaur vs. Indermeet Singh the Hon'ble Court of Ms. Pooja Talwar Metropolitan Magistrate, (Mahila Court – South East District), Saket Courts Complex. New Delhi, Ccinoi 352/3, on 18.11.2010
b. The Hon'ble Delhi High Court in the case of Damanreet Kaur Vs. Indermeet Juneja & And + Crl.Rev.P. 344/2011 on 14.05.2012 also dismissed the petition of the wife holding that she was capable to work.
c. The Hon'ble Delhi High Court in the case of Sanjay Bhardwaj & Ors. vs. The State & Anr. +Crl.M.C.No. 491/2009 on 27th August, 2010 held that where the parties have equal educational qualification, both must take care of themselves and dismissed the revision of the wife.
d. In Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3) MPLJ 100 CRL.REV.P. 344/2011, the Hon'ble High Court of Madhya Pradesh while dealing with identical situation observed that well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress.
e. The Hon'ble Supreme Court on 13/08/1996 in the case of DR. BUDDHI KOTA SUBBARAO V. K. PARASARAN &; ORS. AIR 1996 SC 2687, observed "No litigant has a right to unlimited drought on the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived or frivolous petitions."
f. In Abdul Rahman Vs. Prasony Bai & Anr. AIR 2003 SC 718; S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors. (2004) 7 SCC 166; and Oswal Fats & Oils Ltd. Vs. Addl. Commissioner (Admn), Bareily Division, Bareily & Ors. JT 2010 (3) SC 510, the Hon'ble Supreme Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it.
g. 06th August 2014 the Hon'ble High Court Of Punjab And Haryana while deciding the case of Arjun Kumar Loomba vs. Shakuntla Rani CRR (F) NO. 146 OF 2014 (O&M), held "It is further contended that under the Domestic Violence Act, another sum of 2000/- has been granted as interim maintenance to the wife…… However, it is clarified that the wife can get maintenance only at one forum i.e in proceedings under Section 125 Cr.P.C and she cannot claim maintenance from two forums.
h. In the case of Sushil Kumar Sharma vs Union Of India And Ors on 19 July, 2005 CASE NO. Writ Petition (civil) 141 of 2005 on 19/07/2005, the Hon'ble Supreme Court held, "Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment.
i. In a recent case of Kiran Dutta vs State & Anr. on 11 February, 2014 IN the Hon'ble High Court of Delhi in + (i) CRL.M.C.3106/2008 held "No doubt, Section 28 of the DV Act does permit the Court dealing with cases under DV Act to lay down its own procedure for deciding applications under Section 12 or sub-Section 2 of Section 23 of DV Act but the procedure so evolved has to be fair and reasonable."
3. You may highlight the contradictions, if any.
4. You may also state, if applicable to your circumstances and proving possibility, That undoubtedly, the Protection of Women from Domestic Violence Act, 2005 has been enacted with a noble intention to provide effective protection of the rights of women guaranteed under the Constitution who are "genuinely" the victims of domestic violence but the Hon'ble Courts must warrant that unmerited protection of an unscrupulous complainant must not result in harassment of innocent respondents. The benevolence of the Hon'ble Courts must not result in "miscarriage of justice".
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Posted by: frivolous498a@yahoo.com
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