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Ananymous_AN (IT)     08 April 2017

Divorce | maintenance - please help, completely shattered


My brother who got married in february 2011. Initial it seems going okay, but then couple of incident happend which marks fundamental differences. Wife started pushing my brother on financial matters to get things on her, or for her family, and strongly asked my brother to not support his parents. Things continued on/ off disputes and after an year and few months, wife abondoned my brother and went to her parents. This point of time they were expecting a baby. My brother keep visiting his inlaws and making an attempt to resum normal life, but all effort failed. He tried it for good 5 - 6 months while taking of all his wife medical expenses during her pregnancy. For this span, he had to frequently fly to her parent place and take care of all expense.

Finally after a constant attempt for 6 months, he filed divorce case on ground of cruality in December 2013. In response his wife failed maintenance case and imposed all falsified allegations for dowary, physical and mental torture by her in-laws in January 2014. After approx. an year of hearing, she requested to transfer case to her native on ground of threat to life. As there was nothing such as true, we didn't objected. Now its 2017, after good span of 4 and 1/2 year now decision came where family court has disposed-off and dismised divorce plea and also granted a heavy maintenance amount to husband/ my brother. 

We are very much stress out for so long and now shocked with this kind of one-sided decision. Need legal consultancy as how to proceed with it now. These are my quick clarifications?

1. What is the next higher appeal court to family court and does the appeal against family court decision to be applied in same jurisdiction or can be applied to high court of other state i.e. my natvie place.
2. Wife do not have any intention to to reunite because;
    a. She abondoned her husband
    b. Its she who went to her parent, and then never came back inspite of all effort.
    c. Its she who never once initiated a single effort to reconcile and clear difference in span of last 4 years
    d. She demanded a huge lumsump amount and still refusing to give divorece.
    e. The initial dispute were on financial matters and later proven as she put false allegations and demanded monety to settl.e
    f. She was in job before marriage, never been objected for continuing, and well qulalified. So only motive is be idle and rip benefit from husband's earning

And now the family court decision allowed her to enjoy with all benefits without giving any relief to husband (my brother in this case). What option does a husband have in this case?

3. Online case status for divorce and maintenance shows as 
    a. Divorce - disposed - Contested/ dismissed on merit
    b. Maintenance - disponse - Contested/ allowed
Decision copy is yet to be received. So how much time does an applicant have to appeal after decision and which date is used to calulate this duration, decision copy is yet not received as of April 8th 2017, though online case status show it as disponsed on April 1st 2017

4. The maintenance amount, is it effective since the date of decision, or to be calcuated since the application adminissino date? It would be huge if so, can it be oppsed and contested? Can I request for child visitation in this? What if nothing mentioned in court detail decision about this.

5. What leagal option woudl be advised as next step in this case. 

Thanks for help in advance.



Learning

 19 Replies

Sachin (N.A)     08 April 2017

Under what section court granted maintenance?

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     08 April 2017

your whole story is arguments and not evidence. Court needs evidence which  are always lacking.

Mainenance is right under present law unless you can prove by evidence not arguments that she left due to  her own free will, no body forced her to do so.

So is for divorce, it needs hard evidence. Your story may be true but you do not have evidence which can be given in court.

However please come on a realistic platform and present evidence which are acceptable in court, mere arguments however true can not stand in court. You can go in appeal on procedural lapses of lower court.

There is still a silver lining on cases similar to you . Go through the recent SC judgment on maintenance .

Ananymous_AN (IT)     08 April 2017

Hi Sachin - Thanks for query.

Its section 125.

Ananymous_AN (IT)     08 April 2017

Hi Sir - What I have wrote is summary. You are right. But we have produced evidence of incident that took place during the hearing. For example, travel and expense that husband incurred inspite after she left him. Audio recording of her fight on financial matters. there never been a physical torture or violance in either side, but then immence mental torture which leads to this event. 

Over all, why not court grant divorce on ground of cruality + desertion after even 4 years of trial, whether either party don't want to come along. She is using all loop-holes in law to make thing worse for the husband. Looking for advise as next step.

Appreciate your inputs.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     08 April 2017

Audio taps are electronic evidence and there is complicated procedure for its admission.

Quarrel is very minor matter. Desertion as per  your story goes against you. You should produce evidence through persons that you were always willing  to take her back and always tried to keep her in full comfort and good humor. She left just for greed of maintenance due to tutoring of relatives. Dig out similar history in their faimily or relatives.

 

Very few husbands are willing but you have to be political and should always be emotional in court and plead you are always ready to take her, instead of seeking divorce. You can in this way avoid  paying maintenance  Let her apply for divorce.

Court battles are tactics. For lack of it you get trapped and suffer.

You can still go in same court u/s 127. Supress your ego and make pleadings juicy not offensive and you can win.

 

1 Like

Sachin (N.A)     08 April 2017

 

 

First you did mistake by filing the divorce case without strong evidence. you should have filed RCR or should have ramain silent intead of instigating her by filing divorce case.

Now you only need to focus on reducing maintenance as if she continued to get high maintenace she will never agree for divorce.

You need to be tricky  

Show increase in husband expenditure.

For example

if he is living with his parents show that parents thrown him out of the house and now living on rent, increase in health expenditure of parents. like that. and now he is not capable to give fees of private schools etc. 

Most importantly she was working before which proves that she is capable to earn and there are lot of judgements which says that previously working wife not entitiled for maintenance

You can always challange the maintenance order on the ground of change in circumstances.

Jayesh Kumar (n)     08 April 2017

1. Your main aim should be to reduce maintenance now. 2. For reducing maintenance you need to challenge the order and give evidence of wife working before/after marriage. Your brother needs to show his expenses if any in form of loan, annual savings, of deductions, medical treatment of self/parent, etc. 3. Read this book on reducing maintenance. It is an ecopy and can be read on Amazon Kindle. https://www.amazon.in/Fight-Reduce-Maintenance-under-CrPC-ebook/dp/B00VCA7YDS 4. You may also challenge divorced judgement based on evidences

Ananymous_AN (IT)     08 April 2017

Thank you every one for help. We as family feel trapped and seeking any light of help to get relief.

One more thing, if husband is paying maintenance what rights he has for child visitation. Does court set any guidance On this cicumstantce I explain, does he has rights to apply for custody? Child is of age below 5.

Regards,

 

Ananymous_AN (IT)     08 April 2017

Dear experts,

Court decision copy is yet to be made available, but if cout has mark a note of paying maintenance from date of application, can that be opposed. Its been more than 4 years now, and the total amout be huge for salaried person. What option would one have in this situation. Husband cant' go to ask for loan to pay maintenance/

Regards,

 

Sachin (N.A)     09 April 2017

Originally posted by : Ananymous_AN
Thank you every one for help. We as family feel trapped and seeking any light of help to get relief.

One more thing, if husband is paying maintenance what rights he has for child visitation. Does court set any guidance On this cicumstantce I explain, does he has rights to apply for custody? Child is of age below 5.

Regards,

 

 

He can file case of custody and interim visitation rights.

In interim visitation rights mention that she should handover the child for two days saturday and sunday to father.

Recently delhi HC held that meeting father is child's fundamental right and SC has also said to trial courts not to deny visitation rights to fathers

Sachin (N.A)     09 April 2017

Originally posted by : Ananymous_AN
Dear experts,

Court decision copy is yet to be made available, but if cout has mark a note of paying maintenance from date of application, can that be opposed. Its been more than 4 years now, and the total amout be huge for salaried person. What option would one have in this situation. Husband cant' go to ask for loan to pay maintenance/

Regards,

 

 

Court always order maintenance from date of application.

If you are planning to go for appeal then court will say pay atleast 50% then it will hear your appeal.

So a obtion available to you is start paying from date of order and let her file the case of execution and there you can say to make EMI of previous amount.

And second obtion is you start giving from date of order and file application of "modification of order" to pay from date of order. You need to have strong arguments in your favour that your lawyer can suggest you who is well aware of facts of your case.

Samarpan (M)99958670740 (Free legal advice and legal aid cell)     09 April 2017

The family court orders shall be challenged in the High Court. The High Court is from where the family court situated. If you want it in your High Court, first the case has to be filed in that HC and later on file transfer petition in SC to get it transferred to your HC. Normally, the appeal period is 30 days as per Family Court Act and 90 days as per HMA. The maintenance shall be paid from the date, which the court specifically mentioned in its order, i.e., from the date of order or from the date of application. The court specially mentions it.

Ananymous_AN (IT)     09 April 2017

Originally posted by : Samarpan (M)9599874404
The family court orders shall be challenged in the High Court. The High Court is from where the family court situated. If you want it in your High Court, first the case has to be filed in that HC and later on file transfer petition in SC to get it transferred to your HC. Normally, the appeal period is 30 days as per Family Court Act and 90 days as per HMA. The maintenance shall be paid from the date, which the court specifically mentioned in its order, i.e., from the date of order or from the date of application. The court specially mentions it.

If we challenge family court orders on maintenance and divorce in high court, does husband require to start paying maintenance immediatly after  family court order to have high court accepting appeal application.

Thank you for respone on query.

Kunuthur Srinivasa Reddy   09 April 2017

It is not a wise move for a husband to move the petition for divorce notwithstanding the merits of the issue under Indian conditions of jurisprudence. The marital laws by and large are women biased in India, a debatable issue of course. As already stated by learned counsels, you should have fought tooth and nail, to restore marital bondage instead of breaking it. 


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