dinesh (Manager) 08 July 2014

Can my father ask monthly expanses from me from

My Father is a retired govt. employee and his he is withdrawing a pension around 20K from govt.We are Hindu by religion. He has two wives and I am his son from his first wife.We (me and my mother) have fought many cases with him including our ancestral property and my mother maintenance. At last we mutually agreed and case has been closed.( We drop our maintenance claim and he and his son from 2nd wife drop their case in which they were asking their part on ancestral property). Compromise was done out of court and only the statement that" we are mutually agreed and taking back our claim on property and pension was written into settlement record. Now after a year my father sent me a notice from SDM court seeking maintenance.My father having a good property worth around 1.5 CR but all he has transferred to his 2nd wife name a long time back.Please advise the legal aspects in this case.

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Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 08 July 2014

Dear Dinesh

as per section 125 of Cr.P.C. 125. Order for maintenance of wives, children and parents.

(1) If any person having 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

1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, 18- 12- 1978 ).

(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 not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-

(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

but when he is getting pension then he can not claim maintenance from you. he filed a petition before SDM under Maintenance and Walfare of senior citizen act.

no need to worry, file your reply.

Feel Free to Call

Renu Chaudhary (ADVOCATE AND CONSULTANT) 09 July 2014

I agree with Mr Qureshi,

dinesh (Manager) 18 August 2014

Thank you very much Mr. Nadeem for your valuable suggestion.I attended the first court hearing of SDM court and found my father has not claimed maintenance.As I briefed in my last conversation that my father has transfered his agriculture ( Ancestral Land) land on my name threw my uncle.Actually, He had given general power of attorney to my uncle name in 2004 provided all rights of ownership transfer,sale etc. Two year later my uncle transfered the same land on my name.So, I became the owner of that land in 2006.In 2008, The second wife of my father came to know that the land has been transferred on my name. She put all her pressure on my father and my father challenged that degree and cancel the general power of attorney in lower court.He also filled petition of IPC 420 against me and my uncle but was dismissed by court.My Father challenged my ownership on that land in lower and district court.All his application was rejected because the property was transferred on my name by legal process.After that he filled a petition asking the rights of his son and daughter (From his second wife) in ancestral property. in district court and High court. Both case was withdrawn on mutual compromise.Also, I have taken back my mother maintenance case(125).

Now he filed a application in SDM court challenged my ownership on ancestral land. The same land has been sale out in 2011.He put same charge on me and my uncle, which he claimed 6 years back in several courts ( Lower, District & High Court). Can A SDM hear case which had already been dismissed by lower and district courts.What are the prospectives in this case.

My Second Question:- My step mother is harassing us with the help of my father. My father and my step mother having good property. They are having a house property approx. value is 1 CR. They both have the ownership on that property jointly.Besides, most of the property she(My step mother ) converted into gold.Can I/My mother/My Son ( two year old) claim our right in that property (House built by my father).

can my mother fill any criminal case against my father and step mother, so that they stop harassing us unnecessarily.

Can my mother fill a maintenance case(125) again in Delhi tees Hajari court, as the previous case was withdrawn from karnal district court. We are leaving in Delhi for last three years and electricity meter of my apartment is on my mothers name.

Thanks in advance for your valuable suggestion.

Regards

Dinesh