Mithun Chatterjee 03 November 2017

Admissibility of crpc 125 order

In a CrPC 125 case, lower court has ordered interim maintenance of Rs. 6000 for wife and 9000 for 2 years old son, in total Rs. 15000 from date of order. My take home salary Rs. 30000. I had been sending monthly expense @ Rs. 6000 already to my wife since separation which MM didnt take cognizance. Hence the basic pre-requisite for the relief under CrPC 125, that neglect in maintenance of wife and child despite having sufficient means, does not arise. So, when there is no cause of action, how MM admitted the false case where my wife knowingly suppressed all the facts and rather gave fabricated statements? Even in the order MM overlooked this aspect despite that I have attached all monthly money transaction receipts. So, I have challenged the order and filed for revision/appeal at HC. At this condition, am I legally liable to pay any interim maintenance till the dispose of the revision in HC?? Only 05 months arrear pending till date. Can my wife file for execution even though I hv challenged the order?? My main query is that, whether the lower court order comes to stay automatically when it is challenged in higher court??? Please clarify. Am I supposed to disburse the maintenance amount partly/fully even when the order has already been challenged in HC?

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Adv Radhika Mehta (Advocate) 03 November 2017

Originally posted by : Mithun Chatterjee

At this condition, am I legally liable to pay any interim maintenance till the dispose of the revision in HC??

The High Court may first ask you to clear the pending arrears before proceeding to hear the case on merits.

Only 05 months arrear pending till date. Can my wife file for execution even though I hv challenged the order??

Unless and until, you obtain a stay from the High Court, your wife is free to file execution proceedings.

My main query is that, whether the lower court order comes to stay automatically when it is challenged in higher court??? Please clarify.

You will have to obtain a stay in the High Court. The proceedings in the lower Court do not automatically get stayed.

Am I supposed to disburse the maintenance amount partly/fully even when the order has already been challenged in HC?

Unless and until it is stayed, the maintenance order is very much valid so move the High court at the earliest.

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Vijay Raj Mahajan (Advocate) 03 November 2017

The order for maintenance made by the Family Court has to be paid by the respondent unless there is stay allowed by the High Court or the Family Court, usually that is not allowed. You will have to pay the due amount to her.

The issue on merit of refusal or avoidance by the husband/father to maintain the wife/children was not taken correctly or not by the Family Court will be issue in appeal, however the sufficiency of the amount required for their maitenance was considered by the Family court while allowing the amount to be paid by the husband/father will be taken in account while deciding this issue.

The chances that the amount get reduced in the High Court at the time of appeal seems remote however considering the ability of the wife to maintain herself being ablebodied educated person and if she had previously being working may reduce some amount of maintainance for her. As far the minor children, their maintenance depands mostly on the amount spent on their education along with personal requirement which is very expensive these days. In this case child of 2 years is not going to school and his personal requirement are also limited, sum of Rs9000/- seems on higher side, the appeallant court may reduce this amount too.

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