Maintenance amt
INDIAN
(Querist) 27 April 2013
This query is : Resolved
Respected Experts, My sister has filed a case of 125 for maintenance with reason her husband and inlaws were demanding the dowry and kicked her out. In reply to our petition he has replied that he is earning 8k to 10 k where as we have filed that he is earning 40K. but we have nothing to proof like IT return extra. He is running a shop. He is not filing any ITR. Living on rent with his mother and elder son of 3 years they have kept forcibaly as my sister was pregnent and she is having a 3 nonths old . 4 hearing in the court has passed. My sister is not doing any.job and no mean to earn as 2nd son is too small for taking care. Now my query is in.these circumstances what amt we can expect that court will order as interim
INDIAN
(Querist) 27 April 2013
The above said proceedings are runing in Jalandhar
ajay sethi
(Expert) 27 April 2013
you have stated that husband is earning 10,000 per month . your contention is that he is earning Rs 40,000 a month . you have to show that the alleged earning s of rs 10,000 claimed by husband is misleading . mention the life style of husband , rentals he is paying to prove his story to be false .
your sister should also have filed case under DV act ,claim right to stay in shared household or alternative accomodation . if husband is earning 40,000 a month then your sister can abe awarded rs 15,000 a month .
INDIAN
(Querist) 27 April 2013
Sir , they r living on rent and elder 3 years son is with him. we have nothing to prove his income but he has accepted his income as Rs 10K. Can Honable Judge can decide himself that he is not speaking truth about his income and assume himself any figure between 10K to 40K as we have tried alot but could not get the success to prove 40 K income due to his shop. In salary case we can show his pay slip but in case of shop it seens difficult to prove. Incae case of income 10 K what we can expect as deffinately his lawyer will also show his expediture in comparison to his income and other liabilities. Is there any other way to prove his income as he is running a stationery and photocopy and book shop in a college with student strength of 3500.
ajay sethi
(Expert) 27 April 2013
in absence of any income tax returns the estimates of the income of husband is based on guess work . court is not bound to accept your contention that he is earning Rs 40,000 per month .
ajay sethi
(Expert) 27 April 2013
Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:
1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non applicant has to maintain.
5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.
8. Payment capacity of the non applicant.
9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed.
10. The non applicant to defray the cost of litigation.
11. The amount awarded under Section 125 Cr.PC is adjustable against the amount awarded under Section 24 of the Act."
ajay sethi
(Expert) 27 April 2013
he Supreme Court of India in the case of Jasbir Kaur (Smt.) (supra), has also recognized the fact that spouses in the proceedings for maintenance do not truthfully disclose their true income and therefore some guess work on the part of the Court is permissible. Further the CM(M) No.79/2011 Page 5 of 12 Supreme Court has also observed that "considering the diverse claims made by the parties one inflating the income and the other suppressing an element of conjecture and guess work does enter for arriving at the income of the husband. It cannot be done by any mathematical precision".
R.K Nanda
(Expert) 27 April 2013
no more to add.
