Maintenance and property right
kehar singh
(Querist) 04 September 2015
This query is : Resolved
(MOST URGENT)
Sir,
My so called brother in law who is a Hindu and working as ASI in Police recently got re married with wife of another person at the age of 57. He is going to retire in Feb 2016. His first wife and two major son are still alive. His sons are living with their mother in a house (3 storeyed building), whose right title iS in the name of his first wife. No doubt it was built up out of the income of brother in law.
Out of the 3 storeyed building, 2 storeyed is let out on rent and his first wife is now receiving the rent but she wants maintenance allowance from her husband to the extent of 50% of present Salary (excluding the rent that she is collecting from the building ) as the rent so collected is insufficient for her maintenance. She further wants at least 50 % of all pension benefits receivable by her husband after the retirement.
The brother in law also holds substantial landed property at another place in his own name. The first wife do not want to claim over the landed property but do not want her husband to intervene on the building.
Though her husband has verbally agreed to provide 50 % of his Salary and pensionary benfits to his first wife excluding the building and its rent but he do not wants any kind of stake over the landed property situated at another place even from his two son.
under this circumstances is it beneficial (I repeat the word beneficial) for the sister to approach family court or to settle the dispute as mutually agreed at this moment and allow her major sons to stake claim over the landed property separately in the days to come by not including anything about the landed property in the written agreement like to be drawn.
Further kindly suggest whether the family court give decision on maintenance matter only or also decide on the fate of the property held by both husband and wife.
Your suggestion in this regard is highly accepted.
Anirudh
(Expert) 04 September 2015
If you really are planning to safeguard the interests of your sister's sons (since your sister is quite secured as she has the three storied building in her name and her husband cannot do anything now), then you have to act smart.
1. If you have irrefutable proof that he has already married another lady, then your sister should threaten him that she is going to make a complaint (i) to the police and (ii) his Department about violation of Hindu Marriage Act where he has married another lady while first wife is still alive. IF THIS IS DONE, HE WILL GET SUSPENDED IMMEDIATELY, HIS PENSION ETC., WILL BE WITHHELD. HE MAY EVEN GET DISMISSED FROM SERVICE. ULTIMATELY HIS PENSION WILL BE REJECTED. APART FROM THIS, HE WILL ALSO END UP GOING TO JAIL FOR THE OFFENCE.
By showing this threat, get as much landed property transferred in the name of the sons as possible. (The question of his promising to share 50% of his pension after retirement etc., is not implementable, even if you get any kind of agreement from him.)
Rest is your decision.
SAINATH DEVALLA
(Expert) 04 September 2015
The act committed by UR brother in law is nothing but bigamy.Whats the husband of the second wife doing? So his second marriage is void in the eyes of law.Better concentrate on the rights of UR nephews in securing their share in father's property.After their mother they would be receiving their share in her property.
Do U want to go for legal action against UR BIL for his second marriage or leave him to his fate?
kehar singh
(Querist) 04 September 2015
Respected Anirudh Sir,
Thanks for your reply, But the apprehension of his first wife is that if his service is dismissed or he is put behind the bar she may loose even the 50% Salary and pension benefits.This is because the moment a persons' service is dismissed he ceases to get any monetary benefits as entire service will be treated as dies non which will also effect even the expected 50 % income arising out of Salary and pension benefits to be receivable. Some one tried to act as a mediator of the case but as reported by the mediator the husband is not worried even if his service is dismissed. This shows that the husband is fully aware that if he is put behind the bar even his first wife and children will suffer.
So kindly suggest so that SAAP BHI MARE AUR LAATHI BHI NA TUTE.
kehar singh
(Querist) 04 September 2015
@ SAINATH DEVALLA
The second wife does nothing.
Anirudh
(Expert) 04 September 2015
Dear Mr. Kehar,
The question of his first wife getting any part of the pension or salary, when the man is alive simply does not arise.
2. Once he retires, he need not abide by any agreement that he may sign for this purpose. That agreement is simply not enforceable for the reason that you are trying to get something out of the man by compromising some illegality committed by him - that may not be protected by Courts of Law.
3. You may argue with me that the same can be said in case you give a threat to him about complaining about his second marriage, and trying to get the land in favour of his sons. But, there is a big difference - in the case of agreement that is to be implemented - in case the land is already transferred it stands implemented. He cannot go to Court and say that it was obtained by fraud or threat - especially when he is an ASI and he would not have gone to the Registrar's office to sign the transfer deed!
If you feel that you should get something from him without hurting him, try only the agreement as you originally proposed. But I am highly doubtful about its efficacy.
You asked regarding the following points:
1. to receive at least 50 % of salary untill he remain in service. - As already told to you, the agreement may or may not work. If it works good.
2. to receive pension benefits like Gratuity, encashment of unutilised leave, and Pension payable to him. - If the husband is alive, it is he who will receive these items. The family will not receive. Therefore, legally it cannot be claimed by the family.
3. 100 % family pension which is paid to the wife in the event of death of pensioner. - As the Govt. will recognise only the legally wedded wife, your sister will get the family pension. For this no agreement is required at all.
4. Share of landed property to his two sons only. - He may agree to give or may not. Nobody can legally lay a claim on this during his life time.
I have nothing more to suggest.
SAINATH DEVALLA
(Expert) 04 September 2015
U have not answered the status and stand of the other woman's husband?Now as it is UR sister cannot demand any monetary benefit from UR BIL for his desertion and remarriage,unless she approaches the court of law regarding his second marriage.When she is not bent upon dragging into legal hurdles its better to wait till he retires which is just 5 months away.
As far as salary,pension and other things I think Mr.Anirudh has given the apt suggestion.Nothing more to add in that aspect.
kehar singh
(Querist) 04 September 2015
Anirudh Sir is absolutely right. I suppose. how can two party make compromise on the issue which is legally a crime. It is just like killing some one and compromising with his relatives. After all crime has taken place.
But sir, there is still 6 months left to retire her husband. In view of this, is there any harm in drawing an agreement on the above issue and give it to concerned authority of Police Department for deduction of Salary, pension etc and wait for their action for next 1-2 months. If the deptt denies to take any action on the agreement then let her wife go to Family Court before he gets retire and not for restoration of the agreement but for maintenance allowance.
Once more your views pl
kehar singh
(Querist) 04 September 2015
For Learned SAINATH DEVALLA
The second wife does nothing. She was just a house wife of previous husband. No income and nothing.
Anirudh
(Expert) 04 September 2015
The Department is not bound by your private Agreement.
The Department is bound to pay to its employee and not to the employee's family.
kehar singh
(Querist) 04 September 2015
The most important thing which I forgot to mention is that the landed property which is in the name of my BIL is inherited property. So my nephew will have the right on the landed property being Grand Son from whom their father got it.
It means if BIL turns back from the agreement in the days to come then his son can also file case against their father for their share on Landed property.
Anirudh
(Expert) 04 September 2015
Just because it is an inherited property from his father, it does not mean that your nephews will definitely get any share. Your nephews will definitely get a share only when the property is 'Ancestral'. Ancestral and inherited property are two different things and are not the same.
If the property is that of your BIL, then during his life time, nobody (whether it is your sister or your nephews) can make any claim over the property. They just do not have any legal right to claim so.
SAINATH DEVALLA
(Expert) 04 September 2015
So the second wife is divorced woman?
Rajendra K Goyal
(Expert) 04 September 2015
Well advised by the expert Anirudh.
However consult local lawyer and discuss how to legalize the claim without damage.
kehar singh
(Querist) 04 September 2015
@ sainath devallla - No she is second wife of another retired Havildaar. My BIL is her fourth husband as reported.
kehar singh
(Querist) 04 September 2015
The landed property of BIL is not purchased by him but he being only son of his father he got it transferred in his name after the death of his father. So is it ancestral or inherited ?
