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Family law - Divorce

(Querist) 13 March 2008 This query is : Resolved 
"X" married with "Y" in May'90. "X" was tfd to elsewhere after marriage which is not liked by his wife "Y" & told "X" totake back the tfr & insisted to stay with her parents & left her in-law's house in Feb. 91. Inspite of "X"'s request "Y" refused to come back. In August'91, "X" sent a notice for restitution of conjugal rights & in 1993 filed petition for dissolution of marriage on the ground of desertion before family court. During the pendancy of the divorce petition, before the same court, "Y" filed an application for maint under Sec.125 of Code of Criminal Procedure. The court allowed the application by granting maintenance. "X" preferred a revision petition before Hon'ble High Court on the ground that once the Family Court passed the decreee of divorce on the ground of desertion by "Y", an order of maint could not have been passed.

How to argue the case pl
R Murali (Querist) 13 March 2008
"X" married with "Y" in May'90. "X" was tfd to elsewhere after marriage which is not liked by his wife "Y" & told "X" totake back the tfr & insisted to stay with her parents & left her in-law's house in Feb. 91. Inspite of "X"'s request "Y" refused to come back. In August'91, "X" sent a notice for restitution of conjugal rights & in 1993 filed petition for dissolution of marriage on the ground of desertion before family court. During the pendancy of the divorce petition, before the same court, "Y" filed an application for maint under Sec.125 of Code of Criminal Procedure. The court allowed the application by granting maintenance. "X" preferred a revision petition before Hon'ble High Court on the ground that once the Family Court passed the decreee of divorce on the ground of desertion by "Y", an order of maint could not have been passed.

How to argue the case pl
Prakash Yedhula (Expert) 13 March 2008
Yes, Y can claim maintenance from her ex-husband under law provided that she does not get remarried after divorce. If she remarries, then Y has to forego maintenance.

The Supreme Court has held that a woman deserted or divorced by her husband is entitled to alimony if she is unable to maintain herself out of her own income.

While deciding maintenance claims, it has to be examined whether the wife is in a position to maintain herself in the same way as she used to be at her husband's house before their separation, the apex court held.

Under Section 125 CrPC, the wife should be in a position to maintain a standard of living, which is neither luxurious, nor penurious; but what is consistent with the status of a family, the apex court said. Section 125 CrPC, mandates payment of maintenance of allowance by a husband to his wife/parents/ minor children, if either of them is unable to maintain herself/himself out of their own income.

The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125Cr.PC, the bench observed.

Section 125 is extracted below:

Section 125 Cr.P.C. reads as follows:

"125. (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) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.";]

(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 port of each month's allowance 4 [allowance for the maintenance or the interim maintenance and expenses of proceeding , as the case may be] 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 a
R Murali (Querist) 14 March 2008
Thanks
Srinivas.B.S.S.T (Expert) 20 June 2008
well said sir
SANJAY DIXIT (Expert) 27 July 2008
Detailed reply by Mr Yedul. Nothing left to say.


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