Restitution by husband & 125 crpc by wife - need help
DNJ
(Querist) 02 September 2012
This query is : Resolved
Dear Sir / madam,
Below are my details:
Marriage : Dec 2008 (Nasik)
Matrimonial home : Mumbai
Staying separately : May 2009
Issue Baby Boy : end 2009
Wife's relatives taking back Stridhan : June 2010 (written and signed on Rs. 100 stamp paper)
Sent Money order by myself : 3 times Apr, May and June 2011. Refused by wife with no reasons.
Despite several attempts, wife doesn't come up nor is she ready to give divorce.
Both Parents not keeping well but wife wants to stay separately.
I filed for Restitution of Conjugal rights : March 2012 in Mumbai
2 hearings so far and wife does not turn up.
Wife files for 125 CrPC in Nasik in Aug 2012 in Nasik (Malegaon).
Queries:
1) Can wife file for 125? I have received only Summons from Nashik, Malegaon Court via local police station and not the details of the case / accusations.
2) Is Malegaon in Nashik?
3) Do I have to pay for monthly alimoney?
4) Can i transfer the Nashik case to Mumbai? Can this not be clubbed with my RCR case in Mumbai?
5) Do i need to remain present for the hearings?
6) How much time it takes for ex-Parte in my case of Restitution that i filed in Mumbai?
7) Can Court consider my application of ill parents and expedite judgement for RCR?
I would really appreciate your kind and expert advise on my matter.
I am also looking out for a Lawyer in Nashik who can help me solve transfering the case in Nashik.
Thanking you,
DNJ
R.K Nanda
(Expert) 02 September 2012
Search google for local lawyer and take his help.
ajay sethi
(Expert) 02 September 2012
you ought not to have filed RCR . as counter blast wife has filed 125 CR PC .
you have to engage a local lawyer and appear in court in malegoan . the case wont be transferred to Mumbai . it is wife convenience which is taken into account .
dont waste time and money in applying for transfer of case to Mumbai . court will direct you to pay maintenace . you have not stated whether your wife is in position to maintain herself . whether she si working or not? if wife is working you may not have to pay any mainteance .
ajay sethi
(Expert) 02 September 2012
Under the law, the burden is placed in the first place upon the wife to
show that the means of her husband are sufficient. In the instant case, there is
no dispute that the appellant has the requisite means. But there is an
inseparable condition which has also to be satisfied that the wife was unable to
maintain herself. These two conditions are in addition to the requirement that
the husband must have neglected or refused to maintain his wife. The appellant
has placed material to show that the respondent-wife was earning some income.
That is not sufficient to rule out application of s.125 Cr.P.C. It has to be
established that with the amount she earned the respondent-wife was able to
maintain herself. Whether the deserted wife was unable to maintain herself, has
to be decided on the basis of the material placed on record. Where the personal
income of the wife is insufficient she can claim maintenance under s.125 Cr.P.C.
The test is whether the wife
is in a position to maintain herself in the way she was used to at the place of
her husband.
ajay sethi
(Expert) 02 September 2012
you have to contend that your wife is without sufficent reason refusing to stay with you
section 125
No wife shall be entitled to receive an 4 [allowance
for the maintenance or the interim maintenance and
expenses of proceeding , as the case may be] 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 coconsent, the Magistrate
shall cancel the order."
Adv Archana Deshmukh
(Expert) 02 September 2012
Appear in the case at Malegaon and contest it properly otherwise you will be saddled with some good amount of maintainance. No point in going for transfer of the case u/s.125, contest it at Malegaon only and show that it is your wife who has deserted you.
prabhakar singh
(Expert) 02 September 2012
1)yes!she can.
2)the distance between two places is 588k.m. via NH50
3)Yes!Unless you successfully prove her to be living in adulterous life or having means to maintain her or that she has withdrawn from your company without any legal justification.
4)No! you can not.
5)YES!OF COURSE.
6)Only lawyer engaged there can make a guess.
7)Yes!Only when you have proof.
