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(Guest)

Advise required on recovery of maintenance

 

Dear Advisors,

JMFC court has given judgment in DV act case, saying the non-applicant no 1 that is me, shall pay Maintenance from date of application to applicant, Rent for applicant from date of judgment & a lump sum amount to be paid immediately. The case was against me & my parents, but in judgment there is nothing mentioned about payments from my parents to applicant.

Further in 125 case another JMFC court granted maintenance from date of application.

Both the cases had been instigated by my wife, 125 case in 2008 & DV act case in 2010.

Judgment in DV act was given in Nov 2011 & in 125 judgment was given in Dec 2011. Further I took both the cases to District court, where my lawyer said that we shall not take any stay on the previous order, as this court may ask you to pay min of 50% of the amount now & then only the case will move further. In both the cases I have asked the District court to make a call for of the documents from the JMFC court of the concerned cases.

In the mean time she has applied for Recovery of balance amount in DV act in JMFC court (same court). The notice is in my name & my parent’s name. The notice has come from the court to SP office & police constable had come to my house. Presently I am not residing with my parents. In fact I am not in India itself. The constable returned back saying the parties (I & my parents) are not available.

She doesn’t have any proof of my income, nor does she know where I am presently. She had filled 498a case where I & my parents were acquitted. She has no proof of any type of harassment. She is living separately from me with her parents since 2007, & files DV case in 2010, Maintenance case in 2008, 498a in 2008, and one more civil suit for maintenance in civil court apart from the above cases.

My quarries are as under:-

1.       Is it correct that the court can send notices to my parents as the order of maintenance & other amounts is in my name? How should my parents defend this? As of Now my lawyer has asked to send it back whenever it comes & don’t accept the notices, if police pressurize to take the notice, write on that saying refused to accept and ask about me tell them he has left the house forever & we don’t know where he is. I don’t have any liability, property, fixed deposit, etc, not even a bank account.

       Regarding this I would like to know few things:-

a.       Is it the correct thing done by my parents by not accepting the notice?

b.      How many times the notice will come to my house?

c.       Will the police paste it on the house door or will they take my parents to jail for not accepting the notice & produce to court where the recovery case is applied. (As my lawyer is not giving any clear picture about it).

d.      What may be the possible action the court may take as the notice is not been accepted by my parents & I am out of country? I want to prolong until the district court gives the judgment.

2.       I have filled RCR case, which is on hold for interim maintenance, for which I have appealed in HC for quashing the interim maintenance in RCR case. Will the RCR case help me in defending myself & defeating her claims for maintenance in District court?

3.       If the case documents are called off from the JMFC court by the district court saying they have challenged the judgment in higher court, what may be the status of the recovery case, whether it will be disposed off or kept pending or will continue?



Learning

 20 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     18 March 2012

Today. tomorrow, day after. The maintenance would need to be paid, unless revoked by the Superior court.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Manav Kalia (Arguing my own cases..)     19 March 2012

Recovery cannot be claimed from one's parents, siblings or spouse. The only legal mechanism to recover any amount from any party is thru his assets. Whether movable or immovable. As in thru any bank account, employer, debtor, car, property etc. Recovery from your parents is only possible if you have Lent money to your parents. Not otherwise..

(Guest)

Dear Advisors,

Please let me know about the legality of stand in the cases in District coutrt & Recovery case.

I dont have any movable & non-movable property in my name.

I just want to protect my parents from the evils of my wife, who is taking dis-advantage of law.

Thanking you

Manav Kalia (Arguing my own cases..)     20 March 2012

It's movable and immovable assets. And includes any property, cash, cars, credit, bank balances, gold, furniture, income etc. that you own singularly or jointly. A court can order attachment of any of these for recovery. If you don't possess any of the above then the court cannot touch you. Just do what you want and enjoy life. And let your opponents worry about recovery..

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     20 March 2012

Buddy, some day or the other, if you ever come to India, the said amount would still be recoverable.

 


Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com

Manav Kalia (Arguing my own cases..)     20 March 2012

@Shonee, it will not be possible for the court to recover anything if the author does not have any asset in India. And as far as I know author's parents, siblings, or spouse are not responsible for author's liability legal or otherwise..

(Guest)

Dear Advisors,

I would liek to know one more thing,

Will there be any arrest warrents against me, if the notice returs unserved (as I am not in India)?

Will there be any arrest warrents against my parents as they are not accepting the notice?

With Regards

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     21 March 2012

No arrest warrants against your parents, but if previous summons were recd at that address, then service to any adult male member would be deemed service to you.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     21 March 2012

Mirage,

 

The outstandings would keep on piling, his undivided interest in the family, anything he ever gets in succession can be attached.

 


Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com

Manav Kalia (Arguing my own cases..)     21 March 2012

I agree@Shonee, wrt undivided interest and succession, as in after the event of succession the author would gain assets, hence those assets can be attached. In my case I have no assets at all. And in terms of succession, my assets would be someone else's name now and forever. So even if the court no matter how much any outstanding piles up, wants to recover from me, then the court will only come up with empty air. Succession can always be manipulated within family understandings. Hard fact in India is cash, gold etc is hardly traceable. Property is easily manipulable thanks to black money portion of sale. White money in terms of income coming into bank, money in shares, bank accounts, bonds etc. located in India all gets attached very easily and very fast. So maybe the author might want to consider that. But I recognise that mine is a very unusual case that might not apply to everyone. Btw Shonee buddy, my health is getting better, and I am thinking about work seriously, and I would also like to get involved with SIFF and some other forums / NGOs etc. Would like to talk to you in that regard. When's a good time to call you? Thanks..

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     21 March 2012

Then they can only send you to jail for 30 days.

 


Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com

Manav Kalia (Arguing my own cases..)     21 March 2012

Jail for thirty days is only if you have hidden from the court your ability to pay or are not paying anything in spite of having money. Jail cannot be sentenced if you don't have any money. Otherwise half of India is below the poverty line and quite a large part of the population is unemployed. I remember a justice S.N. Dhingra judgement stating the same. The magistrate has to apply the judgement keeping in mind the financial capability. Because according to the judgement it is not a crime to be unemployed or poor. Am I correct @ Shonee?

Manoj Kumar Jain (abc)     23 March 2012

One most inportant query coming in mind that:-

125(1) of crpc clearly mentioned that

" if any person having suffiecient means, neglects or refuses to maintain

(a) his wife, unable to maitain herself,"

......... then unemployed person or no business person how can be entitled to maintain her greedy wife while wife is also capable to maitain heself, but wife clearly hidden her incom from court.

Please focus on my underline words.

Manav Kalia (Arguing my own cases..)     23 March 2012

I agree@manoj. While I have heard of rare cases of people being sent to jail for inability to pay maintenance, they are few and far between, and usually in cases where the party does not pay in spite of the court having some inkling of the party's ability to pay. For example is one suddenly loses a job of forty k and he is unable to pay further an amount of ten k, till he can find a job, I don't think there is anything in the criminal code to send a person to jail. There was some high court judgements of the same notion.. The only thing is that one has to present the picture clearly to the court, and not lie about anything. If caught in even one blatant lie then it is difficult to assert your arguments in the future..

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