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Arawind (i)     12 August 2017

Admissibility of Modification of Order

Wife is in receipt of maintenance of ₹10,000/- P.M. which is granted by Department of Husband out of his pay as Husband was govt. Employee and the maintenance grant is as per rules of the department which is independent of any court proceedings. While in receipt of said maintenance, Wife files an interim application in DVC seeking right of residence or provide alternative accommodation or pay ₹6000/- P.M for SHELTER / rent under Sec. 19 of PWDVA. Court allows her petition & grants additional ₹ 6000/- as for alternative accommodation stating that amount granted by Department is MAINTENANCE & there is no amount granted towards provision of SHELTER. The order was challenged in sessions court & got dismissed confirming lower court order. Later, Husband retires, accordingly the maintenance grant to wife gets ceased as he is no more a employee of the department. Now, wife files another interim application in her DVC in the lower court under section 25(2) of PWDVA to modify the order passed earlier as ₹6000/- per month + right of residence in shared house hold which is property of Father in law stating that in her earlier application, the relief sought was right of residence+₹6000/ per month which was left out due to oversight & typographical mistake where word "or" was incorporated between right of residence & ₹6000/-, she has no source of income, maintenance grant is ceased by Department & change in circumstances that Husband is living with his parents after retirement in the said property which is inherited. She also files a separate suite claiming 50% share of the retirement benefits received by Husband & further files another Interim Application for Maintenance under section 24 of HMA in DIVORCE case. Now, my query is whether application for modification of order maintainable where said order has been challenged by Husband in sessions court & sessions confirms the lower court order? Is there any time frame to file such application where lower court order was passed in Aug 2016 & Session Court confirms the order in Feb 2017. This application is filed in July 2017 having clear gap of 6 Months + 5 Months i.e. in total of 11 months from date of initial order by lower court & Husband is paying the same without any Arrears. Can she claim retirement benefits as such by filing a separate suit when divorce proceedings are pending in family court & if so then the amounts granted as such shall b counted as alimony or permanent maintenance or anything else?


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 8 Replies

Susen Nath   12 August 2017

Your all questions r in a nut shell. Pls go to an experience lawyear.

P. Venu (Advocate)     12 August 2017

"Wife is in receipt of maintenance of ₹10,000/- P.M. which is granted by Department of Husband out of his pay as Husband was govt. Employee and the maintenance grant is as per rules of the department which is independent of any court proceedings" The statement is unconvincing. Which Department?

 

Arawind (i)     12 August 2017

Armed Forces. Grant is as per rules under rule 92 (i) of AF Act & others relevant orders.

Kumar Doab (FIN)     12 August 2017

Same Query:

 

https://www.lawyersclubindia.com/experts/Admissibility-of-Modification-of-Order-651166.asp

 

 

Kumar Doab (FIN)     12 August 2017

Another query at:

 

https://www.lawyersclubindia.com/forum/details.asp?mod_id=152769&offset=1

P. Venu (Advocate)     14 August 2017

As the husband has retired and there is no provision for grant of maintainance out of pension, the wife can seek relief for grant of maintainance from the competent court, preferably under the provisions of Section 125 CrPC. The cause of action being continuous, there is no question of limitation; it is only that payment of arrears, if any, would be restricted to one year prior to the date filing of the petition. 

Wife cannot have any claim on the retirement benefits, gratuity included.

P. Venu (Advocate)     14 August 2017

As the husband has retired and there is no provision for grant of maintainance out of pension, the wife can seek relief for grant of maintainance from the competent court, preferably under the provisions of Section 125 CrPC. The cause of action being continuous, there is no question of limitation; it is only that payment of arrears, if any, would be restricted to one year prior to the date filing of the petition. 

Wife cannot have any claim on the retirement benefits, gratuity included.

P. Venu (Advocate)     14 August 2017

Sorry for the reated posting. Error has been a technical lapse.


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