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Chris   21 February 2016

Crpc 125

Sir,

I want your help,

I am currently outside India and my wife has filed a Under Section 125 crpc petition with the court. I gave GPA to my brother-in-law to contest the case. The Court accepted GPA but objection filed by the petitioner against the special power of Attorney Executed by me. I am planning to attend the court in June.  What’s the better option to we can get no objection on GPA.

Objection was given by petitioner.

It is submitted that section 10 of the Family court Act, 1984 clearly lays down that the provision of Cr.Pc. shall apply to the proceedings under Chapter IX of the Code before Family Court.  This is specific provision under the Act which provides the procedure for the proceedings under chapter IX of code of Criminal Procedure. Though the Family courts are vested with the powers to decide the matter under Hindu Marriage Act and other Acts, but so far as proceedings under chapter IX of code of Criminal procedure are concerned, there is a specific provision to adopt same procedure as envisaged in the crpc. For the proceeding under section 125 of Cr.pc. , procedure envisaged under section 126 of Cr.P.C. When the case involved is one of maintenance the Family court is bound to try to the case as per the procedure mentioned under section 126 of Cr.P.C.  All the rule applicable to the criminal trial are applied to the proceedings for maintenance and it is held that the plea that section 10(3) of the family courts acts,1984.

Kindly request you, please advice sir
Regards



Learning

 4 Replies


(Guest)
Originally posted by : Chris
Sir,

I want your help,

I am currently outside India and my wife has filed a Under Section 125 crpc petition with the court. I gave GPA to my brother-in-law to contest the case. The Court accepted GPA but objection filed by the petitioner against the special power of Attorney Executed by me. I am planning to attend the court in June.  What’s the better option to we can get no objection on GPA.

Objection was given by petitioner.

It is submitted that section 10 of the Family court Act, 1984 clearly lays down that the provision of Cr.Pc. shall apply to the proceedings under Chapter IX of the Code before Family Court.  This is specific provision under the Act which provides the procedure for the proceedings under chapter IX of code of Criminal Procedure. Though the Family courts are vested with the powers to decide the matter under Hindu Marriage Act and other Acts, but so far as proceedings under chapter IX of code of Criminal procedure are concerned, there is a specific provision to adopt same procedure as envisaged in the crpc. For the proceeding under section 125 of Cr.pc. , procedure envisaged under section 126 of Cr.P.C. When the case involved is one of maintenance the Family court is bound to try to the case as per the procedure mentioned under section 126 of Cr.P.C.  All the rule applicable to the criminal trial are applied to the proceedings for maintenance and it is held that the plea that section 10(3) of the family courts acts,1984.

Kindly request you, please advice sir
Regards

Come once, file whatever u want and go back, later you give POA to someone here to attend dates.  Anyways concentrate more on the case itself than these, as these are all useless.  Or make up your mind, dont come at all. Just make sure wife does not know your address.

Vijay Raj Mahajan (Advocate)     21 February 2016

 

The Special Power of Attorney given to your brother in law was accepted by the Family Court in spite of the objection made by the petitioner; even your Vakaltnamma for the counsel representing you in the Family Court is good enough for the court to proceed with the maintenance petition. The evidence that is to be given by the petitioner has to be done in your or your pleader's presence this what is provided under section 126(2) of the Cr.P.C this provision also allows dispensing with your personal presence with the permission of the court.

The courts in India do allow with dispensing the personal presence of the respondent or accused who are living outside India but are represented by way of power of attorney for their lawyer or any other person.

Even if you travel to India to attend the court case in June, bring all the proof of your income and expense to defend your case in the Family Court because the amount of maintenance that will be allowed to your wife shall depend on what evidence of these two you place on the record of the court, her statement and evidence of her income shall also be taken in to consideration.

The important thing to note here is that since you get salary/income in foreign currency, your expenses too are in foreign currency this point has to be forcefully put forward by your advocate so that wrong impression that you earn in foreign currency has multiple times income in Indian rupees so she can be given huge sum as maintenance on that basis. Most advocates dealing such cases forget to put forward this point and make their client suffer huge financial losses.

1 Like

Augustine Chatterjee,New Delhi (Advocate & Solicitor at Law)     21 February 2016

The said power of attorney is a genuine document and has legal sanctity associated to the same . The family courts act have power to establish their own procedure as well and hence it may dispense of with your personal appearance . As rightly pointed out by my Ld senior above . Also remember that merely because one spouse earns in Foreign currency which when converted to Indian currency might seem to be a lot , that does not mean that the mon earning spouse shall be given maintenance as per the same scale . The maintenance if any shall be awarded as per the standard of living required to survive in the city where the non earning spouse is residing and hence the same has to be taken into consideration as well .
1 Like

ADVOCATE TRILOK (CRIMINAL family PROPERTY topfreind@gmail.com )     21 February 2016

Power of attorney is technical matter.

 

However CRPC 125 is social lagislation and hence nomrally courts grant maintenance. So there will be no use fighting after order is passed.

 

Take technical objections for the case prior to decison on maintenance so that all other issues will be side tracked.


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