Maintenance under 125 crpc


Wife living seprately from last 2 years. I am willing to bring her back home. she is refusing to come back asking for a sum of 10lac for one time settlement.

maintenance of 10000 pm has been granted by family court (final order). my revision petition has been rejected in chandigarh high court.

498a,406 & DV already going on.

I dont want to give her divorce, 

can I challenege the order of high court in supereme court as I am unable to pay this much of maintenance per month. not getting this month of salary.

Please suggest

 
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Freedom

Originally posted by : sunil


Wife living seprately from last 2 years. I am willing to bring her back home. she is refusing to come back asking for a sum of 10lac for one time settlement.

maintenance of 10000 pm has been granted by family court (final order). my revision petition has been rejected in chandigarh high court.

 did you sumbit your salary slip as to how much you are earning per month ?? you have not mentioned if your wife is working or is she qualified ??


498a,406 & DV already going on.

okay this will take another 5-7 years and you will be drained out of your finincial resources further 

I dont want to give her divorce, 

If you dont want to give divorce than dont give who has stopped you from it but let your mind rule over your heart. Hence contest the Divorce case as and when she files  it  .You can take a horse to the water but you cant make it drink the water so stop thinking of getting your wife back although you can file Sec 9 of RCR 

can I challenege the order of high court in supereme court as I am unable to pay this much of maintenance per month. not getting this month of salary.

you can challenge the order in supreme court but you would be spending more on lawyers fees and  when you get the order from the supreme court it would only be a minimal reduction of the maintanence previously ordered . 

Please suggest


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Law Officer

Well advised by stanley.

 
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Was the maintanence ordered in DV or CRPC 125 and did you sumbit your salary slip as to how much you are earning per month ?? you have not mentioned if your wife is working or is she qualified ??

Yes maintanence ordered in crpc 125, no i have not submited my salary slips, i was earning 25000 pm which i have accepted in my statement I also mentioned in my statement that  It was in a small BPO that was shutdown due to non business & i was asked to leave. i have all the resignation & relieving letter with me.(but courts didn;t asked to submit that)

my wife has done BA & nursery teachr traing course, currently pursuing LLB. she was working somewhere before marriage but i dont have any clue.

wheras I am only Bcom graduate.

she only stayed 2 months at my home. now she is hurry to get it settled & get married again.

but i am unable to pay her 10 lac.

also 10000pm is also hurting me like anything. now i am earning 11300 pm in a pvt. company.

 

 
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executive

Mr.Stanley..ur reply is clear and informative.


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Freedom

 

Go through this judgement and talk to your lawyer and see if it suits your case .
 
Giving a new dimension to equality of s*xes in modern times, the Delhi High Court on Friday held that an unemployed man cannot be forced by the laws to “beg, borrow and steal” but pay alimony to his wife. 

“Under the prevalent laws, a husband is supposed to maintain his unearning spouse out of the income he earns. No law, however, provides a husband has to maintain his wife, living separately from him, irrespective of the fact whether he earns or not,” said Justice S N Dhingra. 

Interpretating the laws pertaining to maintenance in the wake of changing times, Justice Dhingra said, “Court cannot tell the husband that he should beg, borrow or steal but give maintenance to his wife, more so when the husband and wife are almost qualified and capable of earning and both of them claimed to be gainfully employed before marriage.” 

The court passed the order while setting aside the order of a family court which had directed the husband, who was unemployed, to pay a maintenance of Rs 5,000 per month to his wife. It noted that the wife, who was equally qualified as her husband and was working in an MNC, cannot ask for maintenance from her husband who lost his job.
 
 
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 1 of 6 

* IN THE HIGH COURT OF DELHI AT NEW DELHI 

Date of Reserve: 9th August, 2010 
Date of Order: 27th August, 2010 
+Crl.M.C.No. 491/2009 

27.08.2010 

Sanjay Bhardwaj & Ors. ... Petitioner 
Through: Dr. Naipal Singh, Advocate 

Versus 


The State & Anr. ... Respondents 
Through: Mr. O.P.Saxena, APP for the State 
With Mr. Gajraj Singh, SI 
Mr. K.C.Jain, Adv. for the Complainant/Wife 


JUSTICE SHIV NARAYAN DHINGRA 
1. Whether reporters of local papers may be allowed to see the judgment? Yes. 
2. To be referred to the reporter or not? Yes. 
3. Whether judgment should be reported in Digest? Yes. 
JUDGMENT 
The present petition under Section 482 Cr.P.C. 
assails an order of interim maintenance under The Protection 
of Women from Domestic Violence Act, 2005 (in short 
Domestic Violence Act) passed by the learned MM on 16th 
January, 2008 and confirmed by the learned Additional 
Sessions Judge in appeal by order dated 29th February, 2008. 
2. The petitioner was a Non-Resident Indian, working 
in Luanda, Angola in Africa as a Manager. He came to India 
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 2 of 6 

taking leave from his job for marriage. Marriage between the 
petitioner and respondent no.2/wife was settled through 
matrimonial advertisement. The respondent wife was MA 
(English) and MBA. As per her bio-data sent before marriage, 
she was doing job with a Multinational Company. The marriage 
between the parties was solemnized on 14th May, 2007 at a 
Farmhouse in Vasant Kunj and was got registered on 25th May, 
2007. The parties lived together for a limited period of 10 days 
i.e. from 15th May, 2007 to 19th May, 2007 and from 2nd June to 
6th June, 2007. While the allegations of husband are that 
marriage failed within 3 weeks since the wife was suffering 
from a chronic disease about which no information was given 
to him before marriage and a fraud was played. The 
allegations made by wife were as usual of dowry demand and 
harassment. Since the marriage did not succeed, the 
husband/petitioner filed a petition under Section 12 of Hindu 
Marriage Act for declaring the marriage as null and void and 
the wife first filed an FIR against the husband under Section 
498A/406 IPC and then filed an application under Section 12 of 
Domestic Violence Act. 
3. It is not relevant for the purpose of this petition to 
go into the details of allegations and counter allegations made 
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 3 of 6 

by each other. Suffice it to say that the learned MM passed an 
order dated 16th January, 2008 directing husband to pay an 
interim maintenance of ` 5000/- pm to the wife. He fixed this 
maintenance without considering the contentions raised by the 
husband (as is stated in the order) that the husband lost his 
job in Angola (Africa) where he was working before marriage 
because his passport was seized by police and he could not 
join his duties back. After marriage he remained in India, he 
was not employed. In the appeal, learned Additional Session 
Judge noted the contentions raised by the husband that he had 
become jobless because of the circumstances as stated by him 
and he had no source of income, he was not even able to 
maintain himself and had incurred loan, but observed that 
since the petitioner had earlier worked abroad as Sales 
Manager and in view of the provisions of Domestic Violence 
Act, he had the responsibility to maintain the wife and 
monetary relief was necessarily to be provided to the 
aggrieved person i.e. wife. He observed that the wife was not 
able to maintain herself therefore husband, who earned 
handsomely in past while working abroad, was liable to pay ` 
5000/- pm to the wife as fixed by the learned MM. 
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 4 of 6 

4. A perusal of Domestic Violence Act shows that 
Domestic Violence Act does not create any additional right in 
favour of wife regarding maintenance. It only enables the 
Magistrate to pass a maintenance order as per the rights 
available under existing laws. While, the Act specifies the 
duties and functions of protection officer, police officer, service 
providers, magistrate, medical facility providers and duties of 
Government, the Act is silent about the duties of husband or 
the duties of wife. Thus, maintenance can be fixed by the 
Court under Domestic Violence Act only as per prevalent law 
regarding providing of maintenance by husband to the wife. 
Under prevalent laws i.e. Hindu Adoption & Maintenance Act, 
Hindu Marriage Act, Section 125 Cr.P.C - a husband is 
supposed to maintain his un-earning spouse out of the income 
which he earns. No law provides that a husband has to 
maintain a wife, living separately from him, irrespective of the 
fact whether he earns or not. Court cannot tell the husband 
that he should beg, borrow or steal but give maintenance to 
the wife, more so when the husband and wife are almost 
equally qualified and almost equally capable of earning and 
both of them claimed to be gainfully employed before 
marriage. If the husband was BSc. and Masters in Marketing 
Management from Pondicherry University, the wife was MA 
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 5 of 6 

(English) & MBA. If the husband was working as a Manager 
abroad, the wife with MBA degree was also working in an MNC 
in India. Under these circumstances, fixing of maintenance by 
the Court without there being even a prima facie proof of the 
husband being employed in India and with clear proof of the 
fact that the passport of the husband was seized, he was not 
permitted to leave country, (the bail was given with a condition 
that he shall keep visiting Investigating Officer as and when 
called) is contrary to law and not warranted under provisions of 
Domestic Violence Act. 
5. We are living in an era of equality of s*xes. The 
Constitution provides equal treatment to be given irrespective 
of s*x, caste and creed. An unemployed husband, who is 
holding an MBA degree, cannot be treated differently to an 
unemployed wife, who is also holding an MBA degree. Since 
both are on equal footing one cannot be asked to maintain 
other unless one is employed and other is not employed. As 
far as dependency on parents is concerned, I consider that 
once a person is grown up, educated he cannot be asked to 
beg and borrow from the parents and maintain wife. The 
parents had done their duty of educating them and now they 
Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr. Page 6 of 6 

cannot be burdened to maintain husband and wife as both are 
grown up and must take care of themselves. 
6. It must be remembered that there is no legal 
presumption that behind every failed marriage there is either 
dowry demand or domestic violence. Marriages do fail for 
various other reasons. The difficulty is that real causes of 
failure of marriage are rarely admitted in Courts. Truth and 
honesty is becoming a rare commodity, in marriages and in 
averments made before the Courts. 
7. I therefore find that the order dated 16th January, 
2008 passed by the learned MM and order dated 29th February, 
2008 passed by the learned Additional Sessions Judge fixing 
maintenance without there being any prima facie proof of the 
husband being employed are not tenable under Domestic 
Violence Act. The petition is allowed. The orders passed by 
Metropolitan Magistrate and learned Additional Sessions Judge 
are hereby set aside. 

August 27, 2010 SHIV NARAYAN DHINGRA, J. 
vn
 
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Thanks for the advice Mr. Stanley..you are doing a good job...keep it up.

Regards

 
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Stanley,

Thanks for the valuable info.

Would you be able to share the link or details pertaining to court order as you referred -

"Giving a new dimension to equality of s*xes in modern times, the Delhi High Court on Friday held that an unemployed man cannot be forced by the laws to “beg, borrow and steal” but pay alimony to his wife. "

 
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No need to go to supreme court file an application under section 127 crpc in lower court itself on the basis of change in circumstances because you do not have a job now.

 
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And if she is in hurry why are you not dictating terms?

 
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