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Brachy   09 April 2016

Challenging interim maintenance

Dear learned experts - Kindly guide me in the following case -

1. Wife has filed an application seeking interim maintenance under HMA 24 for her(no kids).

2. I contested this but the order went in her favour and the application was allowed in the family court.

3. I challenged this in the high court stating she is highly educated, able bodied, can make a living herself inspite of that she is sitting at home for the sake of maintenance. The high court upheld the order of the family court stating husband has to maintain the wife when she is not working.

4. Now she has started working with a decent enough salary to make a living by herself without any need for maintenance. I want to prove this in the court to save myself from huge financial drain of 25k per month as maintenance. I have paid the maintenace uptodate without any arrears whatsoever.

5  Please guide what relief can I seek; shall I knock on the doors of the high court for a revision by summoning her employer, I do not want to approach family court as it might protract the divorce proceeding which is going on more than 5 years due to delay tactics by the opponent.

Thanks!

 

 

 

 



 12 Replies

laxmi kant joshi (instructor)     09 April 2016

Submit the proof of her employment in the high court and get dismiss her petition by ordering no maintenance granted as she is working and getting handsome amount to maintain herself .

Brachy   09 April 2016

Mr. captain, while I can file sec 91 application in the lower court, till this application is decided based on arguments-counter arguements-orde, the divorce proceedings will get held up again. Thats why moving to HC directly is running in my mind. While this application gets decided in the HC with whatever outcome, I can also ask for a speedy trial.

prabhakar advocate (advocate)     09 April 2016

You have to file application seeking amendment of relief in S.24 maintenance, in the family court itself.  the maintenance was ordered by FC and hence, it only has got jurisdiction.  As there was no matter in respect of S.24 pending in HC, HC will not entertain your application for reducing or cancellation of amount in S.24 application.  You cannot file S.127 because the relief granted earlier was not under Section 125 cr.p.c. but under S.24 HMA.

Born Fighter (xxx)     09 April 2016

Brachy, expose her income details to Lower court as advised above.

When wife will get zero maintenance she would herself then want to finish the case at the earliest. You also need to file Perjury and file application asking wife to refund the money paid ( its difficult to get back what is paid but no harm fighting for ur hardearned money)

Get aggressive things will then move fast !


(Guest)
Originally posted by : Brachy
Dear learned experts - Kindly guide me in the following case -

1. Wife has filed an application seeking interim maintenance under HMA 24 for her(no kids).

2. I contested this but the order went in her favour and the application was allowed in the family court.

3. I challenged this in the high court stating she is highly educated, able bodied, can make a living herself inspite of that she is sitting at home for the sake of maintenance. The high court upheld the order of the family court stating husband has to maintain the wife when she is not working.

4. Now she has started working with a decent enough salary to make a living by herself without any need for maintenance. I want to prove this in the court to save myself from huge financial drain of 25k per month as maintenance. I have paid the maintenace uptodate without any arrears whatsoever.

5  Please guide what relief can I seek; shall I knock on the doors of the high court for a revision by summoning her employer, I do not want to approach family court as it might protract the divorce proceeding which is going on more than 5 years due to delay tactics by the opponent.

Thanks!

 

 

 

 

IA u/s 24 is only till case is running, usually HC wont interfere in IA matters, will simply dismiss your case saying it is just interim relief.  You can always let the Family Court know about your wifes change in circumstances and ask court to readjudicate the IA awarded.

 

Here it is to be noted that IA ordered holds good for 1 year, each year she should file IA application asking IA, then you should contest it and pay as per order made, if you are simply paying same amount, your wife will make merry.  There are lot of HC< SC  judgements for 1 year IA.  You can find them here in LCI itself.

 

Along with that ask for call of records, summon her employer to court, 25k is lot of money.

Brachy   26 June 2016

Dear experts - wife has filed an application for enhancing the interim maintenence stating that my salary has increase. The matter of the fact is she is trying to drag the matter and is trying to slow the divorce proceedings. My salary has not increased. Can i submit my form 16 as evidence to show no increase in the salary. 

 

 

Born Fighter (xxx)     26 June 2016

what happened to your claims that she is earning.....did you submit the revision application in FC as advised above ??????

Brachy   30 July 2016

Yes @Born Fighter, submitting the revision application on the next hearing date

Brachy   30 July 2016

Yes @Born Fighter, submitting the revision application on the next hearing date

Md. Younus (employee)     01 August 2016

Dear Friends,

                    In a affidavit of interim my brothers wife mentions that my father's pension is Rs.15000/- but my is not alive now and shows the rents as income and salary as Rs.35000/-.the house is not registered on my brother's name.at the time of petition in 125crpc my father was alive. she mentioned the same in the MP.she knows very well that my father is not alive and i can prove that in court. does this helps me in any way or in filing a perjury.

thank you.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     04 August 2016

You would have to approach the family court for change of circumstances. CrPC 91 has no application in HMA 24, substitute the same with Witness Summons, if necessary.

 

However, why don't you run the case swiftly rather than haggling for Maintennace u/s HMA 24. Your main relief is delayed because of the same.

 

Regards,

 

Shonee Kapoor

www.shoneekapoor.com 

Nitish Banka (lawyer)     31 March 2018

Posted by: Nitish Banka  Categories: Family Law Landmark Judgements 
 

 

Interim Maintenance Arguments important judgments

If you are from the Husband side and your wife is capable of earning and having good qualifications and if you are unemployed then how will you defend the interim maintenance case  filed by wife.

Here are the few judgments which you must use to fight interim maintenance cases  these judgments are handy.

Image result for interim maintenance

Smt. Mamta Jaiswal vs Rajesh Jaiswal 2000 (4) MPHT 457 spouse who is well qualified to get the service immediately with less efforts are not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut pendente life alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose.

In Sanjay Bhardwaj & Ors. vs The State & Anr.  wherein while considering the provisions relating to maintenance under The Protection of Women from Domestic Violence Act, 2005 (D.V. Act) and other prevalent laws like Hindu Adoption and Maintenance Act, 1956; Hindu Marriage Act, 1956 and Section 125 of Criminal Procedure Code (Cr.P.C.), it was held that, “a husband is supposed to maintain his un- earning spouse out of the income which he earns. No law provides that a husband must maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell ask husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both claimed to be gainfully employed before marriage”.

In Sakarben Shambhubhai Rabari & vs Shambhubhai MasharubhaiRabari  while   fixing   the   quantum   of  maintenance,  the  Court  has to take  into  account  not   only   the   needs   of   person   who   claims  maintenance   but   also   the   capacity,   status,  commitments and the obligations of person who has  to pay it. If the husband has to maintain other persons   like   his parents, etc.   reasonable allowance for their maintenance shall have to be made. It would be unjust to grant maintenance in an arbitrary   manner.   The   party   who   has   to   pay maintenance is also not to be virtually rendered a destitute. A fair balancing of all the relevant factors   is   to   be   done   by   the   Courts without making an emotional approach to the problem. The court shall have to keep in mind that what is to be provided is the

maintenance and it cannot have saving element in it nor is it the purpose of the legislature   to   put   the   claimant   in   a   luxurious position. The definition of maintenance given by the Act   makes   this   position   amply   clear.

The Hon’ble Supreme Court in Manish Jain Vs. Akanksha Jain held

The Court must take into consideration the status of the parties and the capacity of the spouse to pay maintenance and whether the applicant has any independent income sufficient for her or his support. Maintenance is always dependent upon factual situation; the Court should, therefore, mould the claim for maintenance determining the quantum based on various factors brought before the Court.

By-: Advocate Nitish Banka

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