Kumar (nojob) 24 September 2013

Advise required - divorce proceeding

I have filed a divorce case against my wife under cruelty clause.

Brief history about the case.

About me: B.com., Graduate with CA Inter. Worked as a Asst. Manager at the time of marriage. Now jobless and pursuing my Course while attending for cases.

She is from kumbakonam – educated – Bsc. Computer science. (Worked in MNC, Chennai before and after marriage and left job to join me in between). I strongly believe she is working some where. She was LIC agent too. But i do not have any proper evidence to support my claim.

I have filed my case in My native in Tirunelveli Dist in Aug -2010.

As she has custody of a girl child born out of our wedlock (Marriage in Jan, 2008), she has applied in Madras High Court Bench in Madurai for transfer the case to her native place kumbakonam(District Head Quarters - Tanjavur). During that time i was working abroad.

Our marriage was proposed and mediated by her relative who was my boss(now ex-boss) as i left my job in June 2011. She has applied for interim maintenance in Nov-2011 seeking Rs.20000/per month for her and child and 10000 towards court expenses.

Documents filed/Status so far.

1. Petition filed by me

2. Her counter

3. Rejoinder filed by me

4. Her affidavit for IM claim & Petition – IA –

i. Seeking Rs.20000/pm for her and child

ii. 10000 for court expenses

iii. Claimed I am working in abroad and earning Rs.175000/per month.

5. Application (from my end) for accepting documentary evidence supporting pursuing education, passport details showing my exit from foreign court, relieve letter from my ex-employer.

6. My counter – Jobless and pursuing professional course – Distance education program – one Group pending. She is working. (No documentary proof to support my claim she is working)

7. Crossing her

8. Crossing me – admitted earned 80000/pm while working abroad. I have the responsibility to maintain wife and child (but I meant that if she has no earnings but did not say so as my lawyer advised to say ans in short)

9. No documentary evidence of what so ever submitted from her end to support her claim of me working/earning

10. Court gave judgment to pay Rs.5000/pm to her and Rs.3000/child and court expenses. Judgment order says – she claimed Rs.20000/pm to her and Rs.10000/pm to child which is wrong as she claimed Rs.20000/pm for both.

My Questions:

1. Appeal Vs Revision ( I do not understand properly)

2. Where I have to file appeal or revision for interim maintenance order

3. I have documentary evidence such as emails, letters from her admitting most of the mistakes which form part of my affidavit (last para. seeking apologies for her mistakes). At what stage I have to submit my evidences and how I have to present my evidences.

4. I have given 136gms of gold due to her demand which included Mangal Sutra Chain in Gold 56gms. Whether I can claim the jewel given by me which has been taken away by her. She also took away her jewelry which she got from their family for her marriage. I have mentioned about jewelry in My rejoinder which she has refused in her evidence in interim maintenance case. ( I have photos, bills, other documents supporting my claims)

5. What is the procedure to send her belonging still lying in my father’s house? (I do not have any property)

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5 Replies

HK_Jain... (498a Fighter) 24 September 2013

1. Appeal Vs Revision ( I do not understand properly)

Appeal is a proceeding taken before a superior court or authority for reversing or modifying decision of a lower court or authority on ground of error or omission in the justice process.

On the other hand, a Revsion entails an act of examining AGAIN in order to remove any defect or grant relief against the irregular or improper exercise or non-exercise of jurisdiction by a lower court may that be by the same or some other court.

2. Where I have to file appeal or revision for interim maintenance order

Appeal is on higher court and revision in same court

3. I have documentary evidence such as emails, letters from her admitting most of the mistakes which form part of my affidavit (last para. seeking apologies for her mistakes).At what stage I have to submit my evidences and how I have to present my evidences.

At the time of cross

Enjoy the proceedings.

5. What is the procedure to send her belonging still lying in my father’s house? (I do not have any property)

Wait for the right time.

I think , collect some information about her Job and then Appeal.

Kumar (nojob) 25 September 2013

Can any one explain me where i have to go for appeal in District court or high court?

Is it possible to reclaim the jewellery taken away by her which was from my earnings?

Laxmi Kant Joshi (Advocate ) 25 September 2013

1. Appeal vs revision is nothing.2. Mr. H.k.jain has explained very well about appeal and revision. 3. As you had written in your post that your wife is educated , she is B.Sc in computer science and was working before and after marriage in The MNC , hope you have some documentary proof of that if not then collect it from co. itself. 4. raise an high objection about intirim maintenance for your wife in your appeal petition that your wife is able for her maintenance because she is Bsc computbtoer science & befor..e and after marriage she was working and getting handso.me salary, still she can work & earn for herself therefore no question raises regarding her maintenance .5. You have to pay maintenance for your child either your wife is learning or not.

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HK_Jain... (498a Fighter) 25 September 2013

In DV, You can appeal in Session court in same district.

And the jwellery you have given her is now STRIDHAN, so forget that for a while.

I dont think legally you can claim those things, practically..

Hemant

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Samir N (General Queries) (Business) 25 September 2013

There is only one case going on and thats your divorce case. And there is an interim maintenance Order. I personally see that it is a VERY reasonable order considering your background and potential to earn. Merely not currently earning is insufficient basis to deny maintenance. Interim-maintenance does not depend on whose fault it was, who is good/bad, etc. Furthermore, the fault issue is relevant strictly to the basis for divorce and only after the basis for divorce is finalized, can that be used as a defense to refuse payment of permanent maintenance. For example, cruelty by her or desertion by her, if decided in your favor for granting divorce, are all basis for denial of permanent maintenance. However Interim maintenance can be denied only if she refuses to stay with you for unacceptable reasons. She can refuse to stay with you for valid reasons and still seek maintenance. Total payment of Rs. 8000 per months is VERY reasonable. If you appeal, and if I am her advocate, I would cross-appeal and seek even more. If she appeals, then you do the same - Cross-appeal (or whatever it is called here) to lower the maintenance granted. If your advocate is advising you to file an appeal, it is only to get more fees. Think thoroughly before you file an appeal.

Regarding return of her property, make sure you have witnesses and signatures of receipt from her along with the witnesses' signature, item by item...

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