RTI - LAW - Double maintenence - legal affair dept

Dt.
To,
M.K Sharma,
CPIO and Additional Legal Adviser
Ministry of Law & Justice, Deptt. of Legal Affairs
Room No. 417-A,
A-Wing, Shastri Bhawan,
New Delhi - 110001

Sub: A petition for information under “Right to information act–2005” regarding “Multiple provision of maintenance for wife in family dispute”

Enclosed a postal order no: of each Rs. 10-00 in favour of the accounts officer, Legal affairs, Ministry of Law & Justice, New Delhi.

Dear Sir,

ABOUT MYSELF: I am ______, a resident of_________, state:___________

ISSUE: This is a petition under “Right to information act–2005” regarding “Multiple provision of maintenance for wife in family dispute” I want to bring to your kind attention and notice a recent trend in the courts dealing with the family disputes between husband and wife. In case of dispute between husband and wife reaching courts the wife is seeking maintenance from the husband under various provisions of the law. In case the couple is Hindus then it is seen that the wife is seeking maintenance under atleast three provisions.

1. Domestic violence act:

I have reproduced the section 20(3) of the Domestic violence act below.

20(3) the Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

2. Code of Criminal Procedure 1973:

I have reproduced the section 125 of Code of Criminal Procedure 1973 below.
125. Order for maintenance of wives, children and parents.
(1) If any person leaving 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 as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

3. The Hindu Marriage Act , 1955:

I have reproduced the section 25 of Code of Criminal Procedure 1973 below.

25. Permanent alimony and maintenance.- (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.


It is seen as a trend in the courts dealing with the family disputes between husband and wife that in order to harass the husband, wifes are filing for maintenance under all the available sections, Acts and forums with identical petitions with identical relief. In turn the husbands are running around all the courts with defending all the cases wherein identical accusations are made. This amounts to “Double jeopardy” for husbands. Even in various acts and also in constitution of India it barred to put a person on trial for same offence twice.

1. Section 71, second Para, Indian Penal Code.
“Section 71. Limit of punishment of offence made up of several offences
Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
[Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or
Where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,
The offender shall not be punished with a more severe punishment then the Court which tries him could award for any one such offences.]”

2. Section 26, General Clauses Act, 1897.
“26. Provisions as to offences punishable under two or more enactments.- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

3. Article 20, Constitution of India.
20. Protection in respect of conviction for offences.—(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.

4. Section 300 of the Code of Criminal Procedure, 1973 lays down;
“300. Persons once convicted or acquitted not to be tried for same offence—
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof”.


SUGGESTIONS:

So it is clear that even though there is a bar on “Double jeopardy” in the constitution of India and in various other acts but still courts are allowing and accepting multiple maintenance petitions. Only way to solve this issue is by simplifying the maintenance laws in India i.e. by allowing maintenance just under one act and by abolishing all other maintenance under all other acts.

REQUEST FOR INFORMATION:

Dear Sir, please provide me the following information.

1. Is your department aware about the issues faced by lakhs of husbands facing maintenance cases under different sections of the Acts.

2. Is your department aware about loss of precious times of the various courts in deciding the same issue under various acts?

3. If the answers to the above questions are yes, then what steps are being taken by your department/ministry to address this issues.


Thanking you sir,
Yours truly,