Stay of recovery of maintenance
Vijay Kumar
(Querist) 08 April 2017
This query is : Resolved
1) In divorce proceedings filed by
husband u/s 13 HMA,District Judge
granted maintenance to wife and minor
child u/s 24 HMA.
2) Husband filed Revision before High
Court on the grounds:
a) Wife is getting salary
b) Wife has no locus standi to demand
maintenance on behalf of minor child
3) High adjourned matter for SIX MONTHS
for issuing notice to wife and
MEANWHILE RECOVERY OF MAINTENANCE
EXCEPT litigation expenses was ordered
to be STAYED.
Please suggest remedy for vacation of stay order for wife & child for getting maintenance pendente lite.
Dr J C Vashista
(Expert) 09 April 2017
Third point, inter alia, that, "High adjourned matter for six months for issuing notice to wife and meanwhile recovery of maintenance except litigation expenses was ordered to be stayed" is vague, discuss with a local prudent lawyer.
How you are concerned?
Vijay Kumar
(Querist) 09 April 2017
Respected Dr. Vashista, I am representing the lady before District Court in Divorce Proceedings.
Guest
(Expert) 09 April 2017
Refer the Supreme Court Orders by the Honorable Judges Bench J.Chelameswar and A.K.Sikri in the case of Shalu Ohja Vs Prashant Ohja dated 18 th Sep 2014 by typing it in Google.You could collect several points with sections which would suit your case.
Guest
(Expert) 09 April 2017
The Court can not place the entire burden of taking care of child on the mother for the simple reason she is earning.
Guest
(Expert) 09 April 2017
You could make a Pleading in the High Court for Urgent Hearing in Open Court before or after hearing and Honorable High Court Judge would provide you a Slip to be submitted in Registrar Office to Post the case and you could inform the Other side about the Date by submitting the Letter and could take acknowledgement.
Advocate/CS Sanjeev Kataria
(Expert) 09 April 2017
you have not reflected the amount of earning of both the parties, court can consider the earning of both the parties as a family cake and distribute it accordingly, minor can be represented through mother and entitled for maintenance even mother is earning more than husband
Vijay Kumar
(Querist) 09 April 2017
Thank you very much, Narasimha sir.When ex parte stay is granted, case is normally adjourned for about 15-20 days. But in this case, case has been adjourned for 201 days.
Vijay Kumar
(Querist) 09 April 2017
Kataria sir,you have correctly described the prevailing legal position.So, merit of case is hardly any problem.
It is taxing my mind why such a very adjournment of 201 days.
Vijay Kumar
(Querist) 09 April 2017
District judge has assessed husband's monthly income as 1,50,000/- and that of wife is 51,000/-.
Guest
(Expert) 09 April 2017
Dear Mr. Vijay,
Of course, due to high recurring income of husband, as compared to wife, she is entitled to get maintenance in proportion to her husband's income, but since wife is also earning 51000 pm, being more than sufficient to meet with the expenses of both the wife and child in a small town of Muktsar, you can hardly justify vacation of stay order for wife & child for getting maintenance. There are 90% chances of waste of your time and efforts to get a stay order.
So, better wait for the routine proceedings to take place in due course.
Guest
(Expert) 09 April 2017
You could Pre Pone the Case following the procedures suggested above.
Guest
(Expert) 09 April 2017
Rajendra ji,
Thanks for agreeing with me.
Vijay Kumar
(Querist) 09 April 2017
Sir, million dollar question is whether it is justified to grant Ex Parte stay and adjourn the case for 201 days?
Guest
(Expert) 10 April 2017
The" Consent Of Court" Can not be Questioned.Even for the Orders passed by the Courts Appeal would be the only Remedy.
Guest
(Expert) 10 April 2017
In the present scenario while ex parte stay can be said to be justified, adjournment for such a long period could only have been justified while the opposite party would have also been given appropriate representation during the hearing.
You may however not leave the chance to get vacation of stay as well as the period of stay to be scuttled down on merits of the case, if you can represent the case effectively and convincingly.
Dr J C Vashista
(Expert) 10 April 2017
I agree with experts Mr. NSJ Rajkumar@ Narasimha and Sh. PS Dhingra, get the stay vacated by moving an application for early hearing before High Court.
Conversely request High Court to call for trail court records so that there are "no" effective proceeding in the case, consequently amount of maintenance awarded is accumulating, which is bound to be in favour of your client i.e., wife and minor child.
Guest
(Expert) 10 April 2017
Dear Dr. JC Vashista,
Thanks for agreeing with me.
R.K Nanda
(Expert) 10 April 2017
file application in concerned court u/s 151 of cpc for early date of case instead of such a long date already given by court.
R.K Nanda
(Expert) 10 April 2017
answer to ur million dollar question is that it is not justified to give such a long date with grant of stay order by court.
Vijay Kumar
(Querist) 10 April 2017
Thank you very much, respected Nanda Sir.
I am searching desperately for case law where such a long adjournment is deprecated by the Hon'ble Supreme Court; but have not been able to lay my hands on such a case law.
