Maintenance under the DV Act

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Recently Kerala High Court in matter of Shilpa v K K Rajeevan the court emphasized that when Magistrates issue maintenance orders under Section 20(1)(d) of the Protection of Women from Domestic Violence Act,2005 (DV Act) they must clearly specify whether the maintenance is granted under Section 125 of the Code of Criminal Procedure 1973 (CrPC) or Section 20(3) of the Hindu Adoptions and Maintenance Act, 1956 (HAMA).

The father (Respondent) and daughter (Petitioner) both are Hindus.
At the age of 14, the daughter petitioned to the Additional Chief Judicial Magistrate (Economic Offence) Court in Ernakulam for maintenance.
- Under Section 20 (1) (d) of the DV Act, Magistrate has power to order the father to pay monthly maintenance of Rs. 2000 to the daughter.
When the daughter attended the majority, the respondent filed a petition to exempt himself from paying maintenance, citing her adulthood and income from employment abroad.
The daughter argued she was entitled to maintenance as she was unmarried and without income.
In 2015, the Magistrate granted the father's petition and exempted him from paying maintenance to the adult daughter.
The daughter appealed this decision in the Kerala High Court.
During the pendency of the revision petition in 2017, the daughter married.
The Revision Petition now focuses on determining the daughter's entitlement to maintenance from 2015 until her marriage in 2017.

Justice P G Ajithkumar addressed the necessity for Magistrates to clearly specify whether maintenance orders are issued under Section 125 CrPC or Section 20(3) HAMA.
The High Court clarified that maintenance under the DV Act could be ordered under either Section 125 of CrPC or Section 20(3) of HAMA, each entailing different conditions and durations.
- It emphasized that if maintenance were ordered under Section 20(3) of HAMA, the obligation continued until the daughter's marriage or until she became self-sufficient.
- Exemption from such maintenance required the father to prove the daughter's disqualification.
The Court highlighted that under Section 125 CrPC, maintenance ceases upon the daughter attaining majority unless she suffers from a physical or mental condition preventing self-sufficiency.
- It underscored the secular application of Section 125 CrPC, available to all irrespective of religion.

About:

It is a social beneficial legislation enacted to protect women from domestic violence of all kinds.
It was brought into force on 26^th October 2006.
It provides for effective protection of the rights of women who are victims of violence of any kind occurring within the family.
The preamble of this Act makes it clear that the reach of the Act is that violence, whether physical, sexual, verbal, emotional or economic, are all to be redressed by the statute

Section 20 of the Domestic Violence Act empowers the court to issue orders for monetary relief aimed at covering expenses and losses incurred by the aggrieved person and any children due to domestic violence.
This relief may encompass expenses associated with medical treatment, loss of earnings, damage to property, and other consequential costs arising from the violence.
Section 20(1)(d) state that the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

About

Section 125 of the Code of Criminal Procedure, 1973 (CrPC) provides that any person who has sufficient means to maintain himself cannot deny to maintain his wife, children and parents if they are not able to maintain themselves.
The provisions of maintenance of the Criminal Procedure Code,1973 are applicable to persons belonging to all religions and have no relationship with the personal laws of the parties.

Section 125(1)(b) provides for maintenance to a child unable to maintain itself. The child here can be legitimate or illegitimate, whether married or not.
Section 125 (1)(c) provides for maintenance to legitimate or illegitimate child (not being a married daughter) who has attained majority but due to physical or mental abnormality or injury is unable maintain itself.
The magistrate, on proof of neglect or refusal to maintain the child, passes an order to pay monthly allowance at such fixed rate as it deems fit to be paid from time to time and to such person as the magistrate directs.
However, the Magistrate may order the father of a minor female child referred to in Section 125(1)(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.
Here 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained his majority.
A Muslim minor girl would be entitled to get maintenance from her father even after the enforcement of Muslim Women (Protection of Rights on Divorce) Act, 1986.
The word child is not defined in the code. It means a male or female person who has not reached full age, i.e., 18 years as prescribed by the Indian Majority Act, 1875 and who is incompetent to enter into any contract or to enforce any claim under the law.

Section 20 of HAMA deals with Maintenance of children and aged parents.
Section 20 provides that Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
Section 20(3) state that the obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Savitaben Somabhai Bhatiya v. State of Gujarat (2005):
- The Supreme Court held that Section 125 of the Code of Criminal Procedure, 1973 has been enacted in the interest of a wife and one who wants to take the benefit under sub-section (1)(a) of Section 125 has to establish that she is the wife of the person concerned.
Sh Jagmohan kashyap v. Govt. of Nct of Delhi & Anr.(2022):
- The Delhi High Court has observed that the right to claim maintenance under the Domestic Violence Act, 2005 and under Section 125 of Code of Criminal Procedure are not mutually exclusive.