Need advice in my divorce case
sansh
(Querist) 13 August 2015
This query is : Resolved
Respected experts,
my divorce case(filed by husband) is in counselling stage. we have filed for transfer which is pending, still the case is ongoing and the stay application is just ignored and the dates are being given every 5 to 6 days once.
i want to file for maintenance but my lawyer says since i'm highly educated i wont get it. but i want to challenge on the fact that it is harming my right to food and shelter. is it possible and where would i have to file it as a fundamental right?
secondly, i want to file dv but my lawyer says since 1 year we are not living together it will be time barred but the fact remains that my husband has threw me out of the house.
is there anything i can do about the above?
P. Venu
(Expert) 13 August 2015
You can file petition for maintenance. Let it be decided on merits.
Is there any cause of action for filing DV?
sansh
(Querist) 13 August 2015
thankyou for your reply sir. what is 'cause of action'?
i was iltreated for money and thrown out by my husband who threatened to file false theft and abatement to suicide cases if me or my dad ever showed up near his house. thereafter under a false complaint which was not shown to me the police called us and harassed us to write what ever they said(please see my earlier thread). i did not still know what to do because mahila organizations are absolute waste. by the time i came to know he had already sent the divorce summons and since then i asked my lawyer but he is not filing. sometimes he says that it is time barred or counter blast or disadvantageous against me in divorce. i also changed lawyer for transfer.
K.S.Srinivas
(Expert) 13 August 2015
1) You can file a petition formaintenance.
2) There is no time limit for filing a dv. However, belated filing impair the chances of success.
Dr J C Vashista
(Expert) 14 August 2015
If you are not satisfied with the performance of your lawyer you should seek advise from some other prudent local lawyer and/or change him.
No one can stop you from filing case(s), let the case(s) be decided on its merit.
Even if you are highly educated, working/ earning your case shall be considered for maintenance.
SAINATH DEVALLA
(Expert) 14 August 2015
Is there any chance of reconciliation between the two with proper counselling?
As long as both of U are husband and wife in the eyes of law,U can file dv or 498A any time during that period.
But one thing is U R mentioned that U R highly educated,if that is proved by UR husband then there could be problem in granting maintenance to U.
GO THROUGH THIS BOMBAY HC JUDGEMENT:
QUALIFIED WIFE CANNOT SIT IDLE AND CLAIM MAINTENANCE,BOMBAY HIGH COURT:
A well qualified wife is not entitled to remain idle and harass her husband by claiming maintenance when she is capable to earn; she is not entitled to take advantage when she is in the wrong. This is what a family court said while rejecting the plea for maintenance from her estranged husband.
From the evidence placed before it, the court held, "It is clear that the wife has a good capacity to earn, thus she is not liable to get maintenance from her husband."
What were wife's grounds for demanding maintenance?
The woman had recently approached the court, seeking maintenance. Her application claimed that she was tortured at the hands of her in-laws, so she was staying separately in her maternal house since 2011. Her parents had to bear her additional expenses, the application claimed, and demanded maintenance from her husband.
What did she say to establish husband's riches?
She further claimed that her husband and his family had an affluent, business background, and makes profits of Rs15 lakh per month. She said that he owns several properties across the country and also in Dubai. "The husband has six companies, and 20 bank accounts in Mumbai, Bangalore and Dubai. His younger brother is working in London, his two siblings are into family business. He frequently travels abroad for his garment business. Considering the husband's status, the woman has demanded a monthly maintenance of Rs 2 lakh," reads the copy.
How did the husband counter her arguments?
The husband, however, claimed that in the first place, the woman is not his lawfully wedded wife, since the marriage was dissolved by way of talaq on September 2014. He also stated in his reply that she is a dietician and conducts private sessions at reputable institutes in Mumbai. He said she earns nothing less than Rs50,000 a month. Also, she has made huge investments, amounting to Rs 1 crore, in the form of gold and diamonds, which she has hidden in a separate bank locker, he claimed.
Why did the court say this case was different?
After going through the arguments by both the parties, the court held that as per the revised Muslim law, though a wife is entitled to get maintenance from her husband till the time she does not remarry, this case is different. "In this case, the woman is capable enough to earn and take care of herself. Thus, as per a judgment passed by a Madhya Pradesh high court, the woman, who is well qualified, cannot seek maintenance and cannot harass her husband," the court said, and rejected her plea.
sansh
(Querist) 15 August 2015
thankyou sirs. that is the type of maintenance denial logic i intend to contest as said in my origial query. not sure if it is possible o nthe above grounds.
T. Kalaiselvan, Advocate 
(Expert) 25 August 2015
You are entitled to claim maintenance through criminal law as well as through civil law and also through DV act.
You can file a maintenance case under section 125 cr.p.c., and section 24 of HM act in the pending divorce case and also through DV case.
Change the lawyer who is not cooperating with you instead is misguiding you.
