maintenance
chander mohan
(Querist) 27 June 2014
This query is : Resolved
Respected Expert, My wife is living separately from me since 1 year. She filed 125 for maintenance. Case u/s 498 A is also registered by her in April 2014 which is under trial. However till now she could not produce a single evidence/proof in her support. I has filed RCR before her filing of 498A. During RCR hearing, she could not produce any evidence whatever false allegation she leveled against me. We have a baby of 5 months. Now my question is -
1. After going through the above facts, still she can get maintenance ?
Devajyoti Barman
(Expert) 27 June 2014
Even if you get decree of RCR, maintenance can not be avoided.
chander mohan
(Querist) 27 June 2014
I am totally confused sir. I met to some lawyers. Some says if wife is living separately from husband without any specific reason and she has nothing to prove the reason for living separately then she will not get the maintenance but some lawyers says as u said that she will get the maintenance in any case.
I am totally confused. Pls help.
Nadeem Qureshi
(Expert) 27 June 2014
Dear Querist
read section 125 of Cr.P.C carefully.
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
(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.
chander mohan
(Querist) 27 June 2014
"No Wife shall be entitled to receive an allowance from her husband under this section if she is living without any sufficient reason, she refuses to live with her husband."
Respected Nadeem sir
According to 125 crpc as stated above, wife can not get allowance if she is living without sufficient reason refuses to live with her husband.
Then court considering the above facts may reject her application for maintenance as she could not produce any reason/proof for living separately. Am i right sir?
Sankaranarayanan
(Expert) 28 June 2014
It is in the hands of judge. You should produce sufficient proof for it too.
Devajyoti Barman
(Expert) 28 June 2014
There is no dearth of decisions tat decree of RCR is no impediment to claim maintenance.
It is a great misconception among lawyers about the benefit of RCR decree.
Rajendra K Goyal
(Expert) 28 June 2014
Agree with the expert Devajyoti Barman ji.
chander mohan
(Querist) 28 June 2014
Sir it means I have to pay her maintenance in any condition.
T. Kalaiselvan, Advocate
(Expert) 28 June 2014
first of all RCR case is different and maintenance case u/s 125 Cr.P.C is different. The provisions of Criminal law for maintenance clearly says that she will not be entitled claim maintenance from her husband if she voluntarily stays away from her husband without any or sufficient or valid cause. Desertion or abandonment of matrimonial house on her own will dis-entitle her from claiming the maintenance amount. However, you are liable to pay maintenance for your child. The proof that she abandoned the matrimonial house on her own without any valid reason lies on you.
chander mohan
(Querist) 29 June 2014
Respected Kalaiselvan Sir, she left matrimonial house by saying that she will come back after her Delivery. I agreed upon this. Six months have been passed to her delivery but she has not came and denying to leave me neither at my home town nor with me in my duty place. She put condition before me that she is ready to live with me if I shift to nearby her mother's house which I rejected and in the meantime filed RCR and wrote three letters to her as well as my concerned police station, ACP, Women Commission for counselling her and come back to me but all in vain. Sir, now my question to you that-
1. Is it sufficient reason to make her not eligible to get maintenance or not?
2. Will this type of her act toward me will be treated as mental cruelty?
ajay sethi
(Expert) 29 June 2014
the reason why your wife wants you to stay near her parents place is that baby is 6 months old . your wife apprehends if she returns to her matrimonial home she would not be able to look after the baby on her own .
rather than filing RCR better strategy would have been to visit her at her parents place . assure her that you will have 24 hours maid at her disposal if she returns to matrimonial home
you can also request her mother to come and stay with you both for 2 months or so .
continue sending her money for maintenance of herself and the child . handle situation tactfully
Biswanath Roy
(Expert) 29 June 2014
Your wife shall show the cogent reason for separate living other than matrimonial place was for 'Harassment and Cruelty' which led her to file the case u/s.498A IPC and as such she cannot live with the husband in response to RCR. She is entitle for maintenance for self and for her baby.
V R SHROFF
(Expert) 13 July 2014
u have to pay mtn in all case. . Woman oriented laws & courts. Don't expect or rely on justice to man. vote bank. judges have guidelines from top.
act as per mr sethy's advise. good for you.
Shri B Roy hinted her arg. i agree.
Facts in ur fvr , but of no use against a wife c child.. bye.
RCR is USELESS : cannot execute order..
