Sudeep Gupta (Manager) 22 September 2014

Maintenance case

wife had filed maintenance u/s 125 in a court in 2007 and based on my income as 45,000/- (the salary proof submitted to the court) the court granted her Rs. 15,000/- maintenance. at the same time she files another case u/s 24 in other court and stated my income as 1,00,000/- (without any proof) and obtained order of rs. 35,000/- maintenance in 2010 (effective from 2007). she kept both the cases apart an didn't mention anything about the order in each other case. I came to know about 2nd case while I received an execution order from court in 2012. Now the total maintenance amount is more than my income and the court has issued execution order to recover from salary. though she is working with MNC but she did not disclosed her salary income of > Rs. 50,000/- in both cases.

Request your advise on what should be my action plan. Can I approach HC now for action against her for misleading teh courts despite having the correct infromation

1. misleading about my income while she was having certified copies submitted in other court.

2. hiding about her incoem in both the courts.

If I can ask for legal action, under what clause and what action. what should be my ground for delay condonation?

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2 Replies

Tajobsindia (Senior Partner ) 22 September 2014

@ Author,

1. Civil maintenance takes precedence over criminal maintenance. Civil maintenance is final. It is duty of aggrieved party to bring such facts to notice of Civil court and vice-versa so that one is set-off as per Law.

2. You should seek certified copies of maintenance Order(s) in respective cases and appeal to ‘set aside’ civil maintenance which I think was awarded ex-part.

3. For delay condonation you can state correct facts of not knowing about Civil case r/w time taken to seek certified Copy of maintenance order and generally they are condoned if properly plead.

4. You should also first pray for stay of Execution proceeding while approaching a higher forum.

5. Support your appeal grounds with ‘unclean hands’ of applicant and ‘hiding income’ r/w ‘she is highly educated and earning party’ and had she declared material facts neither Court would have allowed maintenance for a simple Law that a educated and earning wife is denied maintenance.

6. Thus consult locally with an seasoned Advocate found via reference with case papers and proceed at the earliest.

[Last reply]

Jimmy (Manager) 24 September 2014

Tajobji's statement that "Civil maintenance takes precedence over criminal maintenance. Civil maintenance is final." is wrong, wrong, wrong. At the minimum, one cannot generalize it. Maintenance can be filed again, again and again and all that the petitioner has to show is that there are circumstantial changes of any kind and that is easy to show. She can claim her maintenance expenses have increased and justify that, or a job she had earlier is no longer there. It does not matter whether Civil or Criminal maintenance (125 Cr.P.C.) was the basis of the earlier maintenance. When one Court grants maintenance the next Court must be made aware of the same and under the theory of "suppression of material facts" the case can be dismissed but can be refiled with all facts disclosed. When a court orders maintenance when another order exists, the second order works as extinguishing the first or the maintenance in the first is set as an offset in the latest order. If first order is for 20,000/- and second is for 30,000/- you are not expected to pay 50000/-. Of course, the precise wording in the judgement is important so I am not giving you a general guidance here.
Perjury is now taken seriously in maintenance cases where the wife suppresses her employment all together. So do explore that. File a perjury application after all maintenance cases are disposed of.
Her falsely stating your income is a matter for you to rectify. Come before the COurt and file an affidavit with proper proof. Then put the burden of proving its falsity on her. If she cannot, your proof prevails.
Condonation of delay is easy in Indian Courts. Not knowing of the case, health, death in family, etc. are all acceptable and delay is usually condoned.
Go to High Court and ask that the maintenance cases be consolidated into one case and sent back to one trial Court. Should be easy to do given the facts of your case.