exparte by court + interim maintenance order against husband
SATINDER
(Querist) 13 November 2014
This query is : Resolved
In our case, Principal Judge Family Court, Delhi passed interim maintenance in favour of wife in 125 case. Thereafter in another DV court denied interim maintenance to wife on the ground of parity, being equally qualified and both being unemployed. In connivance with court reader of PJ, family court (125 case) by counsel of wife, husband was misguided about passing of order and next of hearing fixed for payment of money. period to appeal against interim maintenance order expiredl husband is exparte by PJ, family court for non appearance and non payment of interim maintenance on next of passing of order. Wife filed execution petition, husband appeared and paid some money. Now wife has also file criminal appeal against the DV order where maintenence is denied. my query is as under:
1. Remedy for husband in 125 cpc. case after exparte order passed against hi. Can file setting side appl. before same court or before HC.
2. Can wife file criminal appeal against DV Court order even after passing of interim maintenance order in her favour in 125 case.
3. wife case is based on false ground and sufficient proved that she is palying fraud upon court. wife has also filed affidavit by way of evidence in 125 matter and stated lie. what remedy for husband under the circumstance when court made him exparte.
4. mental state of husband is not good. undergoing treatment from govt. hospital for last 1 1/2 year.This fact not disclosed to wife and court. Can this be used in court as defence.
5. husband was unemployed for last 2 years due to his mental state and some other reasons and recently take up job of 7000 salary due to passing of intrrim maintenance order by court oherwise will go jail. husband was earning 18000 salary in previous job 2 years back.accepted job of 7000 because of above reason. what remedy available yo husband.
pl, help.
Devajyoti Barman
(Expert) 13 November 2014
1. He can either go for revision in sessions court/high court or try for setting aside in the same court.
2.Yes she can,
3. Mere lie is not enough . if you could that lies were material like concealing her employment etc then you can file petition u/s 340 Crpc in the same court.
4.Yes but it would not make much difference.
5.He can cite his salary to determine maintenance on this.
Rajendra K Goyal
(Expert) 13 November 2014
Agree with the expert Devajyoti Barman ji.
SATINDER
(Querist) 13 November 2014
thanks a lot.
now first we have to file exparte setting aside appli. before same court. do not understand what excuse may be given in appl. giving the actual fact could irritate judge.
other side counsel are using unfair tactics and we do not belief in such tactics. not easy to stand under these situation. why other side do not act fairly. is that mean everthing is fair in such battle. really frustrating.
ajay sethi
(Expert) 13 November 2014
you will always find unscrupulous litigants . court will set aside exparte order in interests of justice and on imposition of nominal costs .
Devajyoti Barman
(Expert) 13 November 2014
Court battle is not a fair game anyway.
Do not except saints in courtroom.
Nadeem Qureshi
(Expert) 13 November 2014
Dear Querist
my opinion on your queries are as under:
1. Remedy for husband in 125 cpc. case after exparte order passed against hi. Can file setting side appl. before same court or before HC.
Opinion: the set aside application can be filed before family court who passed the order under section 126(2) of Cr.P.C.
126. Procedure.
(1) Proceedings under section 125 may be taken against any person in any district-
(a) where he is, or
(b) where he or his wife, resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proceed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons- cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.
2. Can wife file criminal appeal against DV Court order even after passing of interim maintenance order in her favour in 125 case.
Opinion: yes, she can file an appeal within 30 days from order as per section 29 of D.V. Act.
29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. tc "29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."
3. wife case is based on false ground and sufficient proved that she is palying fraud upon court. wife has also filed affidavit by way of evidence in 125 matter and stated lie. what remedy for husband under the circumstance when court made him exparte.
Opinion: first of all file an application u/s 126(2) of Cr.P.C for set-aside the order then file a complaint u/s 340 of Cr.P.C
340. Procedure in cases mentioned in section 195.
(1) When upon an application made to it in this behalf or otherwise any court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) Record a finding to that effect;
(b) Make a complaint thereof in writing;
(c) Send it to a Magistrate of the first class having jurisdiction;
(d) Take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate; and
(e) Bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a court by sub-section (1) in respect of an offence may, in any case where that court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed, –
(a) where the court making the complaint is a High Court, by such officer of the court as the court may appoint;
1[(b) in any other case, by the presiding officer of the court or by such officer of the Court as the Court may authorise in writing in this behalf.]
(4) In this section, “court” has the same meaning as in section 195.
4. mental state of husband is not good. undergoing treatment from govt. hospital for last 1 1/2 year.This fact not disclosed to wife and court. Can this be used in court as defence.
opinion: it may be, based on the allegation.
5. husband was unemployed for last 2 years due to his mental state and some other reasons and recently take up job of 7000 salary due to passing of intrrim maintenance order by court oherwise will go jail. husband was earning 18000 salary in previous job 2 years back.accepted job of 7000 because of above reason. what remedy available yo husband.
Opinion: first of all file an application u/s 126(2) of crpc then fight the case on merit.
feel free to call
SATINDER
(Querist) 13 November 2014
Many thanks
