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vivekmehta   05 February 2017

Dv case - interim maintenance

Wife filed DV case. She has produced proof of my income. I have already submitted her phone call recording proving her infidelity (however, judge does not seems to be interested in listening to it). 

My lawyer says interim maintenance cannot be avoided. I am happy to pay maintenance for my kid. But dont want to pay a single penny as interim maintenance to wife. Can you learned people please guide me on what should be my plan of action? Is wife having extra marital affair, eligible for interim maintenance? 

Kindly advice. 

 

PS: She used to work before marriage. But never worked after marriage. She is highly qualified. 



 12 Replies

Sachin (N.A)     05 February 2017

Your lawyer is right,

But you may try to go in appeal on the ground that she is capable to earn if you can prove that she was woking earlier and she is higly qualified.

There are some judgements in which court either denied the interim maintenance on these grounds or allowed maintenance only for one year.

 

 

1 Like

vivekmehta   05 February 2017

Thank you Sachin.

I can prove her high qualification and pervious work even at this stage when interim is being decided. Will this not help? 

What about adultry? Will judge be not bothered that she commited adultry?

Kindly advice

Sachin (N.A)     05 February 2017

Originally posted by : vivekmehta
Thank you Sachin.

I can prove her high qualification and pervious work even at this stage when interim is being decided. Will this not help? 

What about adultry? Will judge be not bothered that she commited adultry?

Kindly advice

 

Both the above points suggested to you may help you. As there are many successful cases on these grounds try to find out some judgements of HC of your state.

1. Previouly working wife not entitled for maintenance.

2. Educated wife not entitled for maintenance.

Adultry point will be discussed during trial.

1 Like

Sachin (N.A)     05 February 2017

Alternatively, if you have strong evidence of adultery file quash petition in HC against present case. 

 

1 Like

vivekmehta   05 February 2017

Thank you so much Sachin. 

Would you call her phone call recordings as strong evidence basis on which Quashing can be filed?

She has already submitted effidevit in DV case that it is not her voice (which is a lie) 

Sachin (N.A)     05 February 2017

Meet a senior lawyer personally

1. with the phone recording

2.your other defense evidence  

3. DIR report filed by protection officer.

After going through these he/she will tell you whether to file quash will be benefitial or not.


(Guest)
Originally posted by : vivekmehta
Wife filed DV case. She has produced proof of my income. I have already submitted her phone call recording proving her infidelity (however, judge does not seems to be interested in listening to it). 

My lawyer says interim maintenance cannot be avoided. I am happy to pay maintenance for my kid. But dont want to pay a single penny as interim maintenance to wife. Can you learned people please guide me on what should be my plan of action? Is wife having extra marital affair, eligible for interim maintenance? 

Kindly advice. 

 

PS: She used to work before marriage. But never worked after marriage. She is highly qualified. 


You already have a advocate. Dont seek advise from other sources. However your desire of not paying a penny to wife can be achieved but again it depends on your advocate.

1 Like

Ms.Usha Kapoor (CEO)     06 February 2017

If you have strong evidence and confident of proving her extramarital affair in court then In my view she is not entitled to maintenance.u/s125 Cr.P.C.or DV case interim Maintenance .According to some Highcourt Judgments Highly qualified wife   should not be lazy to seek gainful employment and for everything depend on husband and in such cases interim maintenance is denied to wife. Your kid needs your maintainence up to 21 years.If you appreciate this answer please gice me a like on my profile.

1 Like

A walk alone (-)     06 February 2017

Please give like on Ms. Usha kapoor profile.
1 Like

A walk alone (-)     06 February 2017

Adultery is difficult to prove in court without strong evidence. Better pay small amount occasionally. Or you can also appeal appeal on the ground that she is capable to earn if you can prove that she was woking earlier and she is higly qualified. But you have to pay kid.
1 Like

vivekmehta   08 February 2017

Thank you all learned members for your inputs. I appreciate all your views and now have fair idea of what my course of action should be. 

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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