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Parityakta (QC)     20 July 2014

Hefty and improper maintenance amount

Dear members,

In the family court of Bengaluru, after the divorce, the decree has been issued by the Principal Judge ordering a hefty maintenance amount which I can not afford. The judge did not consider my affidavits and statements  properly and disposed/ misjudged the case.

  • I do not have a permanent job and it is project based.
  • My 3 years baby boy is declared as baby girl in the decree.
  • Wife is well educated and working, which the judge did not take into account.
  • I have liabilities in the form personal loan et al.

Unfortunately, I can not provide any ORIGINAL documents in support of my statements to prove the aforesaid stuff.

Now, how can I proceed with this situation? Please suggest.



Learning

 17 Replies

gautam (not disclosed)     20 July 2014

How do you know that judge ordered more than reasonable?  Did he order more than what you show in your IT returns? You can always appeal in the High Courts.


Any which ways maintenance amount is on the current status, if you earn through Projects and income is not continuous in nature, so as and when the income reduces, you can file a fresh case to reduce the maintenance in the event of changed scenarios.

Suneet Gupta (www.vashiadvocates.com)     21 July 2014

If you do not have evidence to prove your statements, then the court will not accept your unsupported statements. As suggested above. IT returns are considered good proof and can be used to prove your and your ex-wife's income.

Also, you can apply for technical correction to rectify the gender of your child in the decree. This is a typo and can be corrected easily.

Parityakta (QC)     21 July 2014

Thanks for the replies to everybody.

I'm working in Abu Dhabi as a Quality Control Inspector and hence there will be no question of IT returns.

As I'm residing outside/abroad most of the time I can not run behind the case/court etc.

My ex-wife is earning Rs8000 p.m. (I produced the printouts of payslips before the court) and the ordered maintenance is Rs25000 p.m., which is more than 1/3rd of my salary!!!

I hope the judgment was biased thinking that the child is a baby girl....

Also, please let me know the duration allowed to appeal for high court. Is it 30 or  90 days?
(in another thread I read "The Family Court's Act, 1984 provides under section 19(3) that every Appeal under this section within 30 days from the date of order. Section 19 (1) provides for filing of appeal against the judgment and decree of a Family Court before the High court)

Thanks again everybody.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     21 July 2014

Dear Querist

file an appeal within 30 days before HC against the family court order as per section 19 of family court act 1984

19. Appeal.-

(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. tc "19. Appeal.-(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law."
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 1[or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974): tc "(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 2[or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)\:" Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991]. tc "Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991]."
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. tc "(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court." 1[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.] tc "2[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.]" 2[(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. 2[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges. tc "3[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."

Parityakta (QC)     21 July 2014

Dear Shree Nadeem Qureshi,

Thanks for replying.

In your another post/thread, the period for appealing High court is mentioned as 90 days and now you are suggesting as 30 days. Kindly clarify as we people are relying on your valuable suggestions as you people are the discipline experts.

stanley (Freedom)     21 July 2014

@ author . 

1. we understand that jobs in the gulf are contractual in nature . 

2. We also understand that there are no It returns for NRE's . 

3.Now did you submit a certified copy of your payslip as well as a certified copy of your contract to the court . 

4. Normally there is no fixed thumb rule to award maintenance .They usually consider 1/3 rd of your salary , even though repliers have asked you for your salary you have not stated the same . Normally maintenance is awarded as per your cost of living . Even if your wife was earning she was unable to sustain herself in that Rs 8000 which is insufficient for her and the baby . 

5. Did anybody i mean your parents or your brothers and sisters monitor each and every hearing of the case which is very important . sine you would know what actually is going on even if your abroad .Now nobody knows what transpired in the case .

6. Now even if you appeal they would reduce the amount by a few thousand rupees which would be negligble but first when you file the appeal they would ask you deposit half the amount in order to start your case .

  

 

Tajobsindia (Senior Partner )     21 July 2014

In my opinion the award is just and since you donot file ITR r/w you yourself say you cannot run behind court dates, it is advised to move forward to ‘decree in divorce’ r/w ‘visitation’ of minor child and also r/w Interim Order clerical typo corrections.

 Reasoning:

BTW, appeal etc. are for ‘fighting litigant who can spare time for court cases, pay more fees for entering into Appellate jurisdiction, meanwhile pay to wife what trial Court interim awarded as is un-spoken Rule and show litigation efforts all the way upto Apex Court r/w have various documents to show as reason for filing Appeal vis-à-vis mere banking on hired Advocates wisdom from trans Arabian sea.

 

 

Parityakta (QC)     21 July 2014

Thanks again...

 

But what about paying her during my unemployment period which ranges from 1 month to 1 year? I've experienced such difficult times in the past, as my contractual work was over....


Please suggest

Tajobsindia (Senior Partner )     21 July 2014

When you come to that situation (i.e. in future), file appropriate Application in Court under 'change of circumstances' and do submit proper documents highlighting the same and since you will be then un-employed atleast follow-up (then i.e. future) Court proceedings properly.

Suneet Gupta (www.vashiadvocates.com)     21 July 2014

The usual maintenance is calculated at 1/3 salary for wife + maintenance amount for child. So total payment ordered can be more than half of the salary. In your case, the judge has apparently taken into account both your salaries. Since you earn ~75,000/- and she earns 8,000/- as per above posts, the maintenance amount of 25,000/- takes into account her earning capacity (she is getting 33,000/- which is ~40% of combined income. This amount is reasonable in present circumstances.

In any case, you can claim deduction of 25,000/- from your salary for IT purposes. This is not applicable to you as you are an NRI. However, your wife will have to pay the tax on the above amount, and the net amount available for her will be somewhat smaller.

If in the future you loose your job, you can file for a reduction in the maintenance amount and even claim reverse maintenance from your wife (in exceptional circumstances).

gautam (not disclosed)     22 July 2014

maintenance amount is not deductible, it is expenditure and there is no clause in IT that allows deduction for monthly payment to ex-spouse

T. Kalaiselvan, Advocate (Advocate)     22 July 2014

If you are aggrieved with the judgement by the lower court, better to prefer an appeal against the same, wherein you plead everything including non consideration of your pleas by the lower court with regard to her employment and her sources of income.

Adv k . mahesh (advocate)     23 July 2014

it is better to appeal before the period and show the proof in the higher court which may consider you plea and some time unemployed the amount may be reduced but even for this you have to show original proof that you are for a limited employment in the project and other period spending time in without working in abu dhabi 

Parityakta (QC)     23 July 2014

Thanks everybody.

Really it is very hard, tedious, time-consuming, cumbersome, boring and expensive to get so called 'justice' in Bhaarat, where British established such system in order to make and keep us as slaves and tragedy is that the same system still we are following......
 


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