This article has been written by Sonali Khatri. The author is practicing before the High Court of Rajasthan at Jaipur Bench. She appears in matters relating to planned development, land acquisition, constructions raised in violation of Building Bye-Laws, illegal occupation of Public Land etc. She can be reached at [email protected]. 

I am thankful to Mr. Rajendra Prasad, Senior Advocate and all the other advocates at Rajasthan High Court who gave their inputs for this article. 

A woman files a case for getting maintenance before the Trial Court under Section 12 of the Domestic Violence Act, 2005. The Court does grant her maintenance through an interim order. Later on, the husband files an application for modification of the already granted maintenance and the same gets allowed ex-parte (i.e. in the absence of the woman). As the woman could not be present on any of the subsequent dates when the matter was listed, the Trial Court dismissed the main case also (on the grounds of non-appearance and non-prosecution). In light of this, what should the woman do? 

Should she accept this to be her fate and end her fight for her rightful share? Should she not get any maintenance because of her failure to appear in the court? (Please note that she failed to appear in the court because of her severe medical condition. She did not engage any advocate because of past experiences wherein she lost legal battles owing to the casual attitude of her advocates.) Should she give up the dues accruing to her till the time dismissal happened?

These are practical questions. The problem can become more severe if neither she is aware of the answers nor she is able to afford the advice of the best lawyers (we all know the quality of the services offered by the rest, i.e. not-so-best lawyers). Hence, in this article, I would offer you the perfect answers to all the questions which would be arising in this factual scenario. 

These answers have been presented to you after collecting, examining and analyzing all the relevant information on the issue at hand. In fact, the gathered information was re-examined by the practicing advocates so that you do not hit the wrong ball and fall to the ground. 

Let’s now address every such question likely to come up if you would want (a) reopening of your case and (b) recovery of your due maintenance. 

What is the most appropriate legal remedy for you in this case?

The answer to this question would depend upon what do you actually want now. These are the possibilities: 

1. If you want that your main case should be reopened, then you should file an application for restoration and recalling before the trial court.
2. If you want that at least what is due to you should be given to you, then you should initiate recovery proceedings before the trial court. 

(Please note that the fate of your recovery proceedings is not dependent upon the status of your main case. Hence, if the trial court dismisses your recovery application on the ground that the main case is closed, then it is wrong. In such a case, you should definitely consider filing an appeal or revision against such order of the trial court. Appeal would be filed before the Court of Sessions. Revision Petition would be filed before the District Judge.)

Questions related to reopening of the case 

Would the restoration application be allowed by the Trial Court considering the fact that there is nothing in the Domestic Violence Act, 2005 [hereinafter, “DV Act”] which provides for allowing the restoration application?

It is true that there is nothing in the DV Act which provides for allowing or disallowing of the restoration application. However, there is Section 28 in the Act under which your restoration application can be allowed by the Trial Court. Section 28(2) provides that the court can lay down its own procedure. Generally, if the judge has a liberal mindset, then your application is likely to be allowed under this section as it happened in the case of Sh. Bhagat Ram vs Smt. Rekha.

In this case, the trial court allowed the restoration application by invoking Section 28(2) of the DV Act. 

What to do in case the restoration application is dismissed by the Trial Court?

Against the order of dismissal, an appeal can be filed u/s 29 of the DV Act before the Court of Session. If the appeal is also dismissed, then a criminal writ petition can be filed before the concerned High Court under Article 227 of the Constitution of India. Most probably, the High Court is likely to allow the petition and would direct the restoration of the main case before the Trial Court. The same happened in the case of Maria Mercy Suzana Fernandes vs Francisco Monte Piedade Cruz and Anr. 

In this case, the Trial Court dismissed the restoration application. Against this order of dismissal, an appeal was filed under Section 29 of the DV Act 2009. The appeal was also dismissed as being not maintainable under Section 29. Against this, a writ petition was filed before the High Court under Article 227 of the Constitution of India. The writ petition was allowed and the case was restored back on the file of the Magistrate for its disposal according to law. While doing the same, the High Court observed: 

1. The learned Magistrate had the power to restore back the case as the power to dismiss in default also includes the power to restore the case back to its file.
2. The appeal was also maintainable u/s 29 as the order by which restoration application was dismissed affected the rights and liabilities of the parties. 

What are the repercussions of a restoration application? What does it entail when a restoration application is being allowed by the Trial Court? 

If a restoration application is being allowed by the trial court, then the repercussions are as follows: 

1. If a restoration application is being allowed by the same court or superior court, then it means that the final order (i.e. the order by which your main case was dismissed in default) gets set aside. Further, all the previous orders (the orders which were passed prior to final order) would come into force. 
2. It would also mean that your original case is reopened now. Your case would start afresh from the stage where it was pending before the final order was passed by the trial court. 
3. The moment your restoration application was allowed by the trial court, the final order (by which dismissal in default happened) ceased to exist. 

If you want to read more on this, then please refer to Smt. Aparna Ghosh & Ors. vs Smt. Chitra Hore. 

Can the earlier orders (for example: interim order/s) be challenged by way of a writ petition or revision petition after the restoration application has been allowed by the trial court? 

As stated earlier, previously passed interim orders would come into force after the restoration application has been allowed by the trial court. If you have a problem with these interim orders, then you should challenge them in accordance with law. In my understanding, the appropriate remedy to challenge these interim orders would be filing an appeal before the Court of Session in accordance with Section 29 of the DV Act.

If multiple cases have been dismissed at one go through separate final orders, then there is need for filing separate restoration applications or one would suffice? 

You would have to file separate restoration applications against every final order. 

Questions related to recovery of the due maintenance

What to do in case the husband does not pay the maintenance despite the orders of the court? 

In such a situation, you should file a recovery petition under Section 125 of the Code of Criminal Procedure, 1973 [hereinafter, “CrPC”]. After considering your application, if the court finds that your husband is deliberately not paying maintenance to you, then the court may issue a recovery warrant under Section 125(3) of CrPC. In the said recovery warrant, the court can clarify that the amount which is due to the wife shall be recovered from the movable property of the husband. 

Please note that the movable property includes the salary of the husband. For more details on this, please refer to Naseera Begum and Others vs Syed Habibur Rehman and Another. 

What to do in case the husband does not pay the maintenance despite the issuance of recovery warrant?

Generally, in such cases, the Court issues arrest warrant. The maximum period for which a husband can be imprisoned is upto one month. Prior to issuing the arrest warrant, the Court has to issue notice to the husband. 

The purpose of this arrest is making the husband pay the due maintenance to the wife. In case the husband fails to pay despite being arrested, then the court can further extend the operation of the arrest warrant for a period of one month. This may go on till the total due amount from the husband is realized and credited to the wife. 

For instance, in one case (Rajlaxmi vs Dharmendra), the trial court had issued recovery warrant. Despite this, the husband failed to pay maintenance to the wife. Owing to this, the Trial Court ordered sending the husband to jail (civil imprisonment) for a period of one month. The same was challenged by the husband in a revision petition. The revision petition was allowed. Against this, a criminal miscellaneous petition was filed by the wife before the Rajasthan High Court. The Hon’ble High Court allowed the petition of the wife saying that the husband should be imprisoned for a period of 30 days as the recovery warrant and imprisonment are mutually exclusive of each other. 

Would it be appropriate to file a contempt petition before the High Court for execution of the recovery warrant?

No. Most likely, the High Court would not entertain the contempt petition. Section 125 read with Section 421 of the CrPC, very clearly, provides the methodology to be adopted by the Magistrate whenever the recovery warrant remains unexecuted. On account of this, the High Court would direct you to take the appropriate remedy before the Trial Court under the CrPC. 

What all legal provisions would come into picture if you want to recover your due maintenance from your husband?

These are the legal provisions which you should consult before initiating the proceedings for recovery: 

1. Domestic Violence Act 2005: Section 20(6). 
2. Domestic Violence Rules 2006: Rule 6(5).
3. Code of Criminal Procedure 1973: Section 125(3) and Section 421. 

Other questions

If there is a breach of protection order, can a writ petition be filed against that breach?

No. In the event of breach of protection order, a fresh criminal case has to be initiated against the accused (either by FIR or criminal complaint). Thereafter, looking at the facts of the case, the Magistrate will frame the charges if the facts disclose breach of protection order. In essence, if you feel that there has been breach of protection order, then proceed as per Section 31 and 32 of the DV Act. A writ petition will not lie in such case. 

If you want to get more information on this, then please read Ms. Nidhi Kaushik vs Union of India & Ors.

Disclaimer: This article is written in the backdrop of a specific factual scenario. It does not cover all the information which might be relevant for a woman intending to avail remedy when her case for maintenance has been dismissed in default. The readers of this article are advised to verify the information contained in this article before proceeding to act on the basis of the information in this article. The author shall not be responsible for any act or omission taken by the reader/s on the basis of information in this article.

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