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Setting aside Interim Maintenance.

(Querist) 06 September 2009 This query is : Resolved 
Respected Experts,

Mine is a divorce case and Iam the petitioner (party in person). The court had granted me Interim Maintenace in 2004.

My husband paid the Interim Maintenance for 4 years and later in since 2008 till date he did not pay me the Interim Maintenance. I filed a Recovery petition in the court for the same, so my husbands lawyer has now in 2009 after one year pleaded that the had Interim Maintenance be Set aside as my husband has retired from his company and therefore has no income.

Therefore:

1) Can I claim my arrears of maintenance to be paid from the Provident Fund of my husband which he recived on retirement ?

2)Would the court be justified in setting aside the Interim Maintenance when I do not have any other source of income ?


Please advice.
Ria (Querist) 06 September 2009
Please advice.
Guest (Expert) 06 September 2009
1. You are entitled to interim maintenance. You need not to say that is coming out of his provident fund or pension fund, because superannuation benefits are not attachable. He was liable to pay maintenance and he abdicated his responsibility while in service and when he was in paying capacity and court would not take it lightly.

2. The order for Interim maintenance arrears cannot be set aside.
Adinath@Avinash Patil (Expert) 06 September 2009
1]You can't attach provident funds of you husband.
2] The Intrium maintrnance arrears can't set aside.riven
Raj Kumar Makkad (Expert) 06 September 2009
Rightly opined that the order of the interim maintenance cannot be revoked simply becs ur husband has now retired. Your husband can file another petition under section 127 of Cr. P. C. pleading to reduce the amount of maintenance on that ground but in the given facts, the order shall remain intact, dont worry.riven
Ria (Querist) 06 September 2009
Respected experts,

My husband now in 2009 has filed a petition to set aside interim maintenance after non payment for one year, stating that he did not pay from July 2008 to Ausgust 2009 i.e. till date, as he had already retired in 2008.

Is it legally right on his part to give an application for setting aside interim maintenance after failing to notify the court about the change in circumstances for one year and presented the application only when a recovery petition was filed by me, stating that he has no money to pay ?

Howvever the judge seems to be in favour of my husband even after so many mistakes on his part and has decided to set aside the interim maintenance order.

This case has been set to proceed exparte as my husband did not appear in the court for the said one year.riven
PALNITKAR V.V. (Expert) 12 September 2009
The magistrate can not set aside the order in toto. It is settled law that even a beggar has to maintain his wife ! At the most the quantum can be reduced if husband files application u/s 127. Even if the quantum is reduced, that becomes effective from the date of order and not from any earlier date. You should apply for warrant of arrest or attachment of property, movable and immovable.riven
Sachin Bhatia (Expert) 08 October 2009
You are entitled to interim maintenance. The order for Interim maintenance arrears cannot be set aside. Court can also order attach provident funds of you husband.


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