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Arjun   27 November 2016

Ground for interim maintenance

Hi, Wife's Interim Petition is in pending and hearing will start soon.

1. What are the grounds to grant interim?

2. There is no DIR in this case, so it required?

Thanks,

Arjun



 8 Replies


(Guest)

Here is a ground that negates all the above grounds: She is working or is qualified to work, so doesn't need maintenance. So immediately find out details about her work/qualifications, produce evidence and try to nullify maintenance petition or at least bring it down to as little as possible. Good luck.

Ms.Usha Kapoor (CEO)     28 November 2016

WOULD YOU GIVE ME PROFILE LIKES IN EXCHANGE FOR A FREE lEGAL ADVICE.iNTERIM MAINTENANCE GROUNDS FOR YOUR WIFE..ALSO THERE WAS NO dir REPORT  WHICH IS IN YOUR FAVOR.

 

5 Steps To Win The Interim Maintenance

Posted: November 18, 2013 in Interim Maintenance - PWDVA
Tags: Process

InterimMainInterim maintenance can fight with different ways it is mostly depend upon the type of party, type of lawyer and other factor and it change case to case basis, but as per my observation few are the useful point to fight the Interim Maintenance.

5 steps to win the interim maintenance

1. Capable of working ( Add the info past and present job details )
2. Well Qualified ( add the info of her education )
3. Prima Face Case
4. Approach the Court with Unclean Hand
5. Deserted to Husband without sufficient cause

Following are the Ground for the Argument
1. Before passing interim Maintenance necessary expenses which must be deducted like ( PF, Income tax, Insurance, Home EMI, any kind of Loan )
2. Need to explain Father and mother is also your responsibility
3. Prima Face case : Explain to court from so and so date we are not living as husband and wife and not sharing the same house
4. Judgment should be passed from date of order not the date of filling the application
5. Show some of incident that Wife lies to court.
6. How she is able to survive in society from so and so date without any maintenance
7. Burden of Proof lies with applicant
8. Child is joint responsibility

What are the proof need to attached with the Interim WS
1. Her Education background and certificate
2. Her Job details like ( Bank passbook, IT return, Salary slip )
3. Her other investment detail ( Mutual fund, Insurance, property etc )
4. Few Citation which is matching your case ( Citation should be from same state for more impact )
5. Expanse report from your side
6. Your Medical certificate and your father and mother medical certificate along with expanse

Following are the Precaution while fighting for Interim Maintenance
1. Expose of Evidence : Do not expose your important evidence to other party at this stage
2. Never do Oral Argument : All the arguments should be Written argument , supported with your oral argument
3. Do Not Delay the Case: Do not delay the interim maintenance case for long time.
4. Proper Ground for Fight: Do not fight Interim on wrong ground, it is mainly depended upon both spouse salary and leaving standard in society.
5. File the production of document application
6. If she filed your wrong salary and with huge amount, it is good idea to shared your salary slip with court explaining the true information.
7. Do the proper argument for Cross of opposite party before passing the order
8. Never disclose your  strategy to opposite party.

Important point to understand.
1. Before passing any order, Court has to make sure Domestic violence has happen to Applicant
2. Before passing any order, court should consider any Incident report or DIR report
3. Never filed the RCR, most of the time it will backfire. RCR is not useful

Post your question on Interim Maintenance here, I will tried to answer with proper Citation.

Sachin (N.A)     28 November 2016

Originally posted by : Arjun
Hi, Wife's Interim Petition is in pending and hearing will start soon.

 There is no DIR in this case, so it required?

Thanks,

Arjun

 

I am differ from the above advice about DIR.

Gerenally courts proceeds without DIR but if you want to object on that you can.

 

Read these judgements 

 

 

Case Number: CRL.RP 815/2009

Judge(s): JAWAD RAHIM

Petitioners: KRISHNAMURTHY NOOKULA

Respondents: SAVITHA Y

Date of Judgment: 9-Dec-2009

Bench: Bangalore

The order was based on reading of Section 23 and Section 28 of PWDVA given below.  Sec 23 (2) allows the grant of ex-parte order based on affidavit of petitioner.

Section 28(1) clearly says that all proceedings under DV Act will be as per Code of Criminal Procedure (CrPC).  It also allows the court to lay down its own procedure but only for sub-section 23(2) which relates to grant of ex-parte order.  So court cannot create its own procedure for grant of relief if notice to respondent/husband is already issued.

__________________________________________________________________________________

 

Delhi High Court
Bhupender Singh Mehra vs State Nct Of Delhi & Anr. on 8 October, 2010
Author: Shiv Narayan Dhingra
               * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of Reserve: September 24, 2010
                                               Date of Order: 8th October, 2010
+ Crl.M.C.No. 1766/2010
%                                                               08.10.2010

        Bhupender Singh Mehra                          ... Petitioner
                        Through: Mr. Brajesh Kumar, Advocate

                Versus


        State NCT of Delhi & Anr.                         ... Respondent
                          Through: Mr. Anurag, Advocate for R-2


+ Crl.M.C.No. 1773/2010
%                                                               08.10.2010

        Diwan Singh Mehra                               ... Petitioner
                         Through: Mr. Brajesh Kumar, Advocate

                Versus


        State NCT of Delhi & Anr.                         ... Respondent
                          Through: Mr. Anurag, Advocate for R-2

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

By the present petition, the petitioners have assailed order dated 5th November, 2009 passed by the learned Metropolitan Magistrate on an application under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) made by the respondent. Petitioners are father-in-law and brother-in-law (elder brother of husband) of respondent. The husband in this case was working in New Zealand and had come to India for marriage. It seems that the marriage did not take off at all. The allegations made by the parties against each other are not relevant for deciding these petitions.

 

2. The respondent in her application under Section 12 of Domestic Violence Act made husband, father-in-law and brother-in-law (jeth) and another brother-in-law (nandoi) as respondents giving a common address. On making of this application, the learned Metropolitan Magistrate, on the very first day, passed the impugned order directing that the complaint be checked and registered as per rules and issued notice to the Protection Officer for filing DIB and directed respondents to be served through Protection Officer with or without help of police/Nazarat branch.

 

3. Section 12 of the Domestic Violence Act reads as under:

12. Application to Magistrate.-

(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.

(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court.

(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing.

4. It is apparent from the above provision of Domestic Violence Act that before passing an order on application, the magistrate has to take into consideration the domestic incident report received from him by Protection Officer or Service Provider. The order dated 5th November, 2009 of learned MM shows that before serving notice to the respondent, the learned MM did not take into consideration anything and did not even consider the contents of the application and did not try to find out as to whether respondents mentioned in the application satisfied the definition of respondent under Section 2(q) of Domestic Violence Act. Section 2(q) reads as under:

2(q) "respondent" means any adult male person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

5. An application under Section 12 of Domestic Violence Act has to be treated in accordance with provisions given under the Domestic Violence ActDomestic Violence Act provides for obtaining domestic incident report. The domestic incident report proforma is given in form 1 of the schedule 2 of Domestic Violence Rules. This proforma is in detailed analytical form wherein the details of each incident of domestic violence are to be entered with date, time and place of violence and person who caused domestic violence. The purpose is that all allegations made in application must be specific and the Court should not exercise jurisdiction without considering domestic incident report since it is necessary for the Court to know before issuing any notice to respondent as to who was the respondent who caused domestic violence and what was the nature of violence and when it was committed. The proforma specifies different heads of physical violence, s*xual violence, verbal and emotional abuse, economic violence, dowry related harassment and other forms of violence. The proforma also provides for filing of documents in support of the application like medico-legal certificate, list of istridhan and other documents. This domestic incident report has to be signed by the aggrieved person. The application under Section 12 is required to be made in form 2 of the Rules wherein the details of various kinds of reliefs and expenses are to be given. Section 27 of the Domestic Violence Act provides which judicial magistrate Court can have jurisdiction to entertain an application under Section 12 of the Act. Where marriage took place outside Delhi and the parties have lived outside Delhi, it is incumbent upon the applicant invoking jurisdiction of Delhi Court to specify how jurisdiction of Delhi Court was made out. No doubt Section 28(2) gives power to the MM of laying down its own procedure for disposal of an application under Section 12 or under Sub-Section 23(2) but the procedure an MM can adopt cannot be violative of the Act itself or violative of principles of natural justice. The procedure adopted by the learned MM of issuing notice to the respondent without even considering domestic incident report and without going through the contents of the application and without specifying as to why each of the respondent named by the applicant was to be summoned, is contrary to the Act. Only those persons can be summoned who have been in domestic relationship with aggrieved person. Under The Protection of Women from Domestic Violence Act, 2005 an aggrieved person does not have liberty to make every relative of the husband as a respondent.

 

6. The order dated 5th November, 2009 passed by the learned MM is therefore set aside. The learned MM is directed to consider the domestic incident report and consider the contents of the application and find out whether the respondents (petitioners herein) had any domestic relationship with the applicant and could be fitted in the definition of the "respondent" as given in Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 and then only issue notice to them.

 

September , 2010                  SHIV NARAYAN DHINGRA, J.

 


(Guest)
Originally posted by : Arjun
Hi, Wife's Interim Petition is in pending and hearing will start soon.

1. What are the grounds to grant interim?

2. There is no DIR in this case, so it required?

Thanks,

Arjun

That you married her and you both are in court because of matrimonial dispute, until such is resolved or decided, you need to pay her IA + litigation expenses.

Sachin (N.A)     28 November 2016

@autohide4u

You are right magistrate only follows their routine procedure. But as i said many times earlier that for an extraordinary judgement one has to put extraordinary effort.

 

 

 

Arjun   28 November 2016

Thank you Sachn sir for sharing the valuble information.

Arjun   28 November 2016

Also thanks to Usha Kapoor Sir, Venkat Sir and Autohide

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

9891549997


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