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Parityakta (QC)     22 February 2015

Corrections to the maintenance order

Dear Members,

The family court Decree order for MCD, which is issued in June 2014 has some contradictory statements, as under:

The Decree Order says  " The Petition for divorce is dismissed" but another sentence says, which is contradictory to the first one,  "The maintenance amount has to be paid till she marries and the child attains majority"

My queries are:

  • The divorce is granted?
  • How can she remarry, as the divorce petition is dismissed ?
  • In order to stop the maintenance does both the situations need to be satisfied?
  • The maintenance amount to be paid was also wrongly mentioned i.e. instead of 01-01-2012 it says 01-01-2011.(the date of petition)

I appealed for HC against the judgment itself (not for the corrections but due to heavy maintenance), and recently there too my petition was dismissed.

So, now what is the time limit and the procedure to get the judgment corrected by Family Court?

I'm working outside of India currently and what will be the consequences of not paying the maintenance, as it is a hefty amount for me! (But, I'm willing to pay a reasonable/maintainable/affordable amount to my spouse)

PS: My lawyer is of no use.

Thanks in advance.

 



Learning

 10 Replies

Upendra (Lecturer)     22 February 2015

There are no contradictions

What is meant is that

1) Your divorce petition is rejected for the time being, it also means that either you or your wife can apply for divorce again later after a stipulated period of time.

The maintenance order means that,

a) your wife is entitled for maintenance as long as the current status co is maintained.

b) your wife is entitled for maintenance even if at a later data either you or you wife applies for divorce and win the divorce order, and your wife is continuing to remaining unmarried.

c) your daughter is entitled for maintenance irrespective of the status co between you and your wife until she attains the age of 18.

2) the order states that you have to pay the maintenance from the date of petition and not from the date of judgment. I.e.… you are expected to pay the awarded maintenance amount from the date of judgment and also the awarded maintenance amount from date of petition to the date of judgment as a lump sum.

There might be a few lawyers who are too lethargic but the bottom line is that the lawyer is not the affected party, he/she deals with the case in accordance with certain basic formats which might not represent your situation clearly, your lawyer is only as good as the proofs and feedback that you provide them.

 

 

I am not actually a lawyer but I can suggest you few things you can work and discuss with your lawyer,

It is better to Invest in a good detective once instead of paying your wife each month.

Part A  proofs from your part

Provide your own income proof after tax reductions that shows you are earning much less than that projected by your wife in the court.(normally wife usuall exaggerate the husband's income to earn bigger maintenance amount)

Show that you are maintaining your elderly parents and project it to reduce this expenditure from your income.

Show your own expenditure that is meant for your basic survival

Part B Proofs from your wife's part

Collect proofs regarding the rent for a normal house in the area your wife is now residing.

Collect proofs regarding normal expenditure incurred by a single person residing in the area regarding bills for groceries, vegetables, ect for 1 person.

Collect bills for expenditure for 1 person regarding electricity, few dresses (nominal and not designer/branded)

You can sum total all these and show to the court that she deserves only this much wherein the rest is for extravagant living which she is not eligible.

You can collect proofs regarding your wife’s personal property, income from property in form of rent/lease, any job/business income your wife is engaged in , and ask this amount to be reduced from her eligible maintenance amount.

If your wife is at least learned collect proofs regarding to salaries paid to similarly qualified ladies around her residential area (this can also help a lot)

Work your proofs towards the point “Maintenance is for surviving and not for supporting lavish and extravagant lifestyle”

Armed with these proofs you can try to file revision petition to reduce the amount awarded for maintenance.

If she wants an equal share in your income for continuing the life style enjoyed by her while she was with you, she can only do so via permanent alimony after giving you a divorce and not via maintenance.

Dr J C Vashista (Advocate)     22 February 2015

What do you mean to say your lawyer is of no use? How did you draw the inference that your lawyer is of no use?

The order is crystal clear and you have failed to understand, consult with "some" local lawyer.

Your mutual consent divorce case stands dismissed with the directions inter alia that you will have to pay maintenance for the petitioners (your wife & child) right from the date of application till her life or remarriage(which ever is earlier) and the child till attainment of  majority. 

ADV-JEEVAN PATIL, MUMBAI ( DEEMED/CONVEYANCE OF BUILDING)     22 February 2015

P. be clear that  petition for divorce is dismissed but maintenance has to be paid until spouse marry again legally or illegal. It also stipulate that until maturity of child, maintenance has to be paid.

Adv. Chandrasekhar (Advocate)     22 February 2015

I admit that I also as much baffled as you are.  If the divorce petition (be it filed by husband or wife) has been dismissed, automatically the maintenance under Section 24 comes to an end. Maintenance under this section need not be paid from the date of decree as it is "maintenance pendente lite".  A step further, we venture to presume that the maintenance is permanent in nature and that comes under Section 25, if so, section 25 permanent alimony is maintainable only in the event of grant of divorce decree. so, if you say, divorce petition is dimissed, there is no scope of granting any relief under Section 25.  Some judges have got their whims and fancies, if I presume that he is talking about the maintenance that was granted in Section 125 cr.p.c. or maintenance under DV, which are invariably on separate files, then he should have specifically mentioned that he was talking of maintenance under Section 125 cr.p.c. or maintenance under D.V, whatever the case may be.

What I suggest you is that you go through the entire judgment and see whether the logic flows that if he granted divorce (instead of divorce dismissed),  and if that is so, then maintenance order falls in proper squares and the entire judgment becomes logical and comprehensible.  Find out, whether he wanted to grant divorce.  In such circumstances, the appropriate course of action is, before moving the higher court in appeal, to file clarification application in the trial court under Section 151 C.P.C.

Pinakin Joshi (Independent)     23 February 2015

Never ever blame any advocate..... (Though I am not an advocate). It is the advocates (though very professional) plays very crucial role in administration of law.

T. Kalaiselvan, Advocate (Advocate)     23 February 2015

I fully agree with the views/observations and opinion by learned advocate Mr. Chandrasekar.  Please take a second opinion about the judgment by sowing it to a different lawyer because there are chances that you might have read it wrong or if the error in the judgement is confirmed, you may proceed with the next step to move an application u/s 151 CPC to clarify the impugned judgement on the basis of the pleadings and prayers made in the divorce petition.  Further, if appeal was dismissed in the high court, what was the reason for dismissal or what was the prayer in the appeal?   Your query appears to be ambiguous with insufficient information because of which no proper or concrete opinion can be rendered.

Parityakta (QC)     23 February 2015

Dear Sirs,

Thanks everybody for replying.

My HC appeal was questioning of the heavy maintenance basis.

I've attached the decree order....anybody please interpret it for me?

my personal mail is nand7400@gmail.com


Attached File : 242926485 decree.pdf downloaded: 63 times

Parityakta (QC)     23 February 2015

Dear Joshi_jee,

I did not blame my lawyer...I told the fact!

Probably, you do not know the pain of losing a family life, time as well as my hard earned money to a lawyer who is inefficient in dealing with Clients.
Even for appealing to HC I requested him to appeal within 30 days by searching through internet I gave the Law section Clause and sub clause, which he did not listen and argued it is 90 days to appeal and delayed, for which I suffered!

Anyway, it is out of the square issue. I'm expecting some resolution to my problem not lawyer's problem here.

Biswanath Roy (Advocate)     25 February 2015

As to the given facts the interpretation of the order is that the divorce was not granted but the continuity of payment of maintenance to wife and child shall continue. However variation of the order is needed  to rectify the mistake " till she marries"  as contained in the order

Adv k . mahesh (advocate)     25 February 2015

i think there was some mistake and apply for correction in the order by filing petition in the court and in that pray to reduce the maintenance but check for the limitation period already about 8 months passed check with the registry office 


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