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Vinod (self)     21 November 2010

Fate of Interim Os (Maint/Custody) if wife loses 'Div' case

I want post my query to this forum as follows

 

 

 

I am a husband wherein...Divorce case is filed by my wife on Sec-13 (a)-i 'cruelty' and sec.26 and she doesn't  want patch-up.

We both are earning. Our kids(both minors. boy 11 years, girl aged 6) are in her custody.

 

Court also ordered interim payment sec 24...she had applied for maint as "for the sake of kids only" as her dependents I have paid it so far always well in advance


The case progressed in last 2.8 years to extent that wife 's petition is most likely to  be dismissed for no merits and hence she and her advocate also stopped attending it after she as a witness and her cross examination taken by my lawyer.

My lawyer forcefully asked  to dimiss it but not only on plaintiff's default but on "no merits".


My temp/perm custody plea was dismissed already but visitation under wife's presence is allowed instead.

I don't see any point in going to HC for concessions on mandatory 'wife's supervision' clause, although my lawyer told me so.

 

My questions are about sec. 24 and sec 26, i.e. what's the fate of interim Orders if petition is dismissed?:

Interim Maint was asked "for the sake of kids only and education, welfare" to be given to wife.

 

What happens to all the interim orders.. if divorce petition is dimissed?


Interim orders namely.....
1. Visitation under wife's supervision and once in every two weeks.
2 .Sec 24 - maintenance payment obligations (I assume it would be converted into sec 25 and I have to continue to pay. It's fine and I have no problems with it)

 

Am I correct about Interim maint order?

 

Also I am interested to know more in custody front.

Can I defy Court's Instructions which imply that 'I can't take out my kids without supervision of my wife' to my native place or vacation to their grantparent's place etc?

Technically Custdy related order is also an Int Order which is valid only until case is adjudicated. Isn't that correct?


Concern here is ...my wife has started resisting my visitation since her case deemed weak.

Excuses: my son sick, they have another function at home, she is sick, want to go out for tournaments

Wife has also become very inflexible in approach now a days.

 

After going through the emotional abyss for a year, I just dived into my business to work for 16 hr a day and never showed resistance to any stuff except the demand of divorce.

But on visitation front she has started to harrase me. I am gain feeling very agitated when I am about to win and trying it hard not lose my calm.

Initially we both agreed not bring in our kids into the dispute but b'cos she about to lose the case and hence she is resorting to this.

 

I need whole custody i.e. without clause of 'supervision', on a periodical and temporary basis (e.g 4-6 days on vacation frequently).

I do not want to go and spend another 2-3 years in high court for this.

 

Your legal opinions about how to tackle the situation wihout enraging the current tussle.

 

 

 

Best Regards

Vinod



Learning

 3 Replies

Adv Archana Deshmukh (Practicing Advocate)     21 November 2010

All the interim orders are in force till the decision of the petition only. When the petition is decided the final relief is also decided in it. If your wife is not letting you see your children, you bring this to the notice of the court, also file an application for contempt of court, the court will compel her to let you meet your children. 

1 Like

(Guest)

Dear Vinod,

As your wife has filled the case for divorce, It is she who has to prove cruelty in the form of mental or Physical. If she is not able to prove the same, The petition is liable to get dismissed. Once the Petition gets dismissed all the Interim orders stands cancelled. 

Kindly clarify did you moved an application for custody of your children? It seems yes, as you say that you have an interim rights to visit in your wifes presence. If your wife is preventing you from visiting you can file an application of Breach of Orders against your wife?

If there is an order she has to allow you to do the same. Upon moving such application the Learned Judge will interview your kids once more in the court and take there opinion.

Is your wife working?  What about your parents? For getting the custody of your kids you will have to prove that you are better position of growth and welfare of your child. If your wife is working, and your Parents support you for the kids, you can raise the contention that the kids will have better and secured environment for there growth. But if your kids would like to stay with the mother, then there is nothing which can be done. 

If this case gets dismissed that you have all the rights to your kids. If this case is getting dismissed move an application for Restitution of conjugal rights and if your wife does not wants to  join the matrimonial home even after the court orders, you will be eligible for divorce and she will not be eligible for alimony. Further you can claim the custody of your child. 

If you need any assistance. Please feel free to call me on 09320312007. I am not a lawyer but have a good understanding of the Law. above all if your wife and her advocate has stopped attending the case, move an application for Ex-parte orders from the court.

Regards,

Vivek

Jamai Of Law (propra)     23 November 2010

Vinod ji,

 

I agree with adv Archanaji.

She is saying that "court does decide on the fate in interim orders also at the time of final decree..even the petition is likely to be dismissed for lack of merits"............................But technically as Adv Archanaji said correctly...interim orders have force until the final decree only......unless these are addressed in the final decree.

 

There is a catch here!!

 

If in divorce plea..............if the leave is not granted...then it is implied that............. "wife is supposed to reunite with husband and there is absolutely no restriction for husband to go to her place and meet his kids any time"

 

But if wife is still unwilling to reunite ....................then upon her application ...Hon Court may have to order for continuation of maint "for the sake of children". This is a catch...

 

Even though hostage taker's plea is rejected on merits...the hostage taker can't disallowed from the means to subsist........in the garb of "for the sake of children" ..................Otherwise if wife still desists to reunite with husband and does not give up custody of kids also (or kids also wish live with mother)....................... then kids would be devoid of means to survive .......because Interim Maint "grant/hafta" would cease to exist ..... after dismissal of the petition

 

Hence Court takes some decision at the time of decree like....................... "untill wife reunites with husband ...husband may continue to pay the maintenance 'for the sake of children'.

 

You can't force her to reunite....But this is a conclusive proof of her misconduct and that she won't be able to file for HAMA, crpc 125 in future as the court has suggested her to reunite with husband...and in fact she has deserted her husband without valid reasons is proved.....and hence misconduct is continued and until she corrects her misconduct .............her plea of alimony (as damages due to divorce) or maintenance is liable to be struck off!!!!! in trial court

 

E.g. If husband is ordered to pay maint as per sec24...if he doesn't pay and go to HC for revision..if wife cries in trial court about the noncompliance of the "interim maint" by husband...it is a full proof instance of cruelty...hence husband's plea gets struckoff..he is left with ony one option .....and that is to "pray to condone the delay in maint payment" but he just can't refure to pay......

 

The same concept would be applicable to your wife in future..because ...if she fails to reunite with you..it is a continuation of  misconduct on her part...as the max she can pray for  "condonation of delay in reuniting" and just can't refuse to reunite..and ask for maint under HAMA or Crpc...or else she has to go for appeal in HC against the trial court decision in divorce case and  get it reversed first.

 

if Hon Court stops the interim payment also............ vide final decree,........... then she may again apply for maint HAMA, crpc ............even though she knows she has no merits...but again there is a provision of interim relief (crpc and HAMA does grant interim payment)....which doesn't look at the meits of the main plea...... but only considers immediate needs of the applicant!!!

 

Hence again,........... in the garb of immediate needs........ her "interim maint may continue" until the HAMA, crpc125 case gets adjudicated...which she is liekly to prolong as much as possible!!!

 

Hence it is better to keep paying her even after final decree in divorce petition.

 

So...... be rest assured!!!! (And don't create any new grounds for her........... such as adultary...and other grounds........ commited by you!!!)

 


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