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The Gladiator (NA)     24 October 2014

Help needed : interim maintenance matter

Hello all:

 

Happy New Year !!!

I’m looking for your valuable opinion on this situation:

  • The husband filed for divorce case and the custody of his child. Used to be in UK (salary in British Pounds). Wife filed for heavy interim maintenance (under HMA 24), citing his UK job/salary (husband was working there at the time of filing). Husband came back to India several months ago after expiration of visa and now lives in India. No evidence of husband’s UK salary has been provided by wife. Husband currently working for a private Indian firm at a salary of Rs. 7,000 pm. Husband has also not submitted any evidence of his salary yet but informed the court about his India salary in his written response.
  • Wife’s lawyer already did his hearing, not furnishing any evidence but asking for a heavy interim based on husband’s education (MBA in UK) and his UK job/salary. Wife also has a Master’s degree (India; she's highly qualified and used to work before marriage). She didn’t work in UK; husband doesn’t have any evidence of her job, salary, etc. here in India. However, he does know she’s working somewhere; just doesn’t have the relevant details. She hasn't mentioned a word about her income in her application or hearing; only that she doesn't have sufficient resources. 

Questions:

  1. Husband still has an opportunity through his lawyer for his set of hearing/arguments. Believe he can furnish the evidence about his current pay (plus expenses, deductions, etc.) in India based on which interim will be decided (and not the UK salary which he used to get in the past when the interim was filed). Correct? 
  2. Would it be a good idea to include any relevant citations on interim maintenance when his lawyer presents his arguments? Her lawyer didn’t do so. Also, does it matter if the citations are from the same state court or other India courts (including the Hon. Supreme Court)?
  3. Should his lawyer submit his hearing arguments in writing and then present those verbally? Her lawyer did it all verbally.
  4. Does desertion play a role in interim maintenance matters? She directly went to her parents’ home (with all her stuff) after coming from UK and never came back to UK or to his family home in India. Can her desertion be highlighted in our arguments?

Thanks once again for all your help. Much appreciated.

 



Learning

 9 Replies

Tajobsindia (Senior Partner )     25 October 2014

@ Author,

 

1. Wrong. Ability – status is prime facie already proved by wife. All she has to do is call for your ITR records from IT Ward and/or call your ex employer with offsite salary records which are allowed by Courts. Now a days Courts are asking for submission of Affidavits from both parties with details of their liabilities - income statements and mention of lifestyle details that also prior to marriage – during marriage and till date of filing the Affidavit. So she has these three options to prove her case of 'interim maintenance'. Now-a-days court do not believe statement of a NRI working offsite and there earning in forex and after coming back to India earning just peanuts i.e. @ 7000/-.
If you have Court Commissioner's Report showing earning Rs. 7000/- in India after your return then Court will believe you and your (friends!) companies Letter Head Appointment letter read with bank transfer per month of Rs. 7000/- from him is mostly not believed by Courts when case of NRI's cometh before her. 


2. Your side can and this forum has such depository. There are deadly citations in backdrop of your brief from Apex Court so try to find citations from your State’s HC. But a wife need not have to be shown to be living in absolute penury – destitution to seek maintenance and maintenance is awarded based on parties living standards just before filing the maintenance demand read with ability of both and further read with education standards of both and finally with guess work by a ld. Judge. People with NRI stamp find handicap and if your side can bail yourself out then it is your case otherwise keep walking. 


3. Leave of Court is sought to submit Written Arguments otherwise interim maintenance arguments are mostly heard orally from – either sides. 


4
. Apex Court has said only an deserted wife need not have to be paid alimony (full and final maintenance till life – remarriage). But then another Bench of Apex Court has said she can be paid “interim maintenance” till desertion proved. See what citation benefits your sides arguments as such special facts are known to you.

 

[Last reply]

Dr J C Vashista (Advocate)     25 October 2014

1. Most of the courts are asking both the parties to submit their detailed affidavit for assets and liablities including income and expenditure with copies of the documents, submit present income proof to the court.

2 & 3. Although oral submission in arguments (interim) will suffice yet it can be written also with relevant citations, however, interim will be allowed till the time you can prove her independant income.

4. You may highlight her desertion in your submission/argument but she will get interim maintenance.

stanley (Freedom)     25 October 2014

@ Author . 

1. Even if your wife submits evidence of your past salary slip what you earned in the U.K that would not be applicable as that is your past source of Income while you where abroad .The court would only consider your present source of income while you are in india . The courts are not here to provide  employment opportunities so as to state that oh you were earning so and so amount of british pounds and now in india you are earning only so much INR . Now can the judge fart in court or the opposite counsel fart and state that they can provide you any type of employment and say we are providing you employment in so and so company in india and we are going to pay you a salary of one lac can they ?? 

 

2. The court would consider your present salary to decide on interim maintenance . The court would also take into consideration any other sources of income like FD's which generate interest etc . 

3. If you know the account nos of your wife and the branch you can summon the manager of the bank with her bank statements where her salary is being deposited . Alternatively you can hire a detective to get all her details or even if you have her phone no you can give it to the detectives and they will do the rest and get her details . 

 

If the detectives or your counsel can prove to the court that she has sufficient means than her application of interim maintenance goes down the drain :-) 

The Gladiator (NA)     25 October 2014

Thanks to all  of you for the responses. Much appreciated.

@Tajobsindia : Let me clarify a few things here:

  • The wife has not filed any evidence of the husband’s UK income yet. Moreover, the husband has been in India for 8+ months since expiration of his work visa (he didn’t leave the job to incapacitate himself). So he is also not an NRI anymore. Why would the court consider his income from UK since it’s a thing of the past (albeit, the interim application was filed when he was still working in UK)?
  • Also, it's imp to note that the husband took up a job at the current salary (Rs. 7,000 pm) to be with his parents as his father has been going through a prolonged medical treatment and he wanted (and was needed) to be with them at this time (wife was of no help at all). His job is a relatively low-paying one (in a smaller city, that is his home town) but gives him the much needed flexibility in the current circumstances. Isn’t that reason genuine enough?
  • Another thing, both the spouses have Master’s degrees (and wife used to work in the past). Husband believes his wife’s salary would at least be Rs. 15,000 pm. Just don’t have any evidence to support this. Any suggestions how he can find that out since I believe that’d certainly be a big factor in deciding the interim matter ('Stanly' did point out a good strategy in this regard)?  
  • As mentioned, the husband moved back to India 8+ months ago so doesn’t have any IT return here (India) yet. However, he does have a salary slip for the current India job that he’s planning to submit to the court. Will that not help since I believe interim is decided based on one’s current income?
  • Finally, I didn’t understand your point re: using HC citations from the same state only. Would you, please, elaborate on that if that’s what you meant?

Thanks once again.


(Guest)

You have to file income and expenditure statement of self and also provide information with wife's salary slips and bank statements, get hold of address of her employer, give her latest 4 x 6 photo and summon her employer.  Also ask for appointment of court commisioner, he will collect information about her immovable assets.  Court be made known about the change in circumstances etc as explained in your query, for it to ascertain alimony payable to wife.  Regarding citations, go for SC citations.  HC citations of same state will hold more value.


As wife has deserted husband, she cannot be given maintenance, same should be proved in court.  She has left on her own accord.  Once that is proved, no need to worry about paying life-long maintenance, but will have to pay interim maintenance to her till case gets over.  All the best.  Also visit this link for more judgements.

 

https://parting.hpage.co.in/alimony-judgements_64299485.html


Attached File : 325954410 woman deserts husband - no alimony.docx downloaded: 285 times

The Gladiator (NA)     27 October 2014

Thanks Helping Hand !

All:

Any other words of wisdom based on the clarifications/details I provided?

Needless to mention, this is very helpful and I truly appreciate it.

ANAMIKA VICHARE (LAWYER)     27 October 2014

You were working in UK and now you say taht yor slar in India is Rs.7,000/- which will not be believed by te Court.  Anyways, had your lawyer asked for production of documents yr wife's  educational certificates, passportand bank statements which will reveal her income.   Further you say that she is working and you do not know where she is working.  You sould either engage a detective to fi=nd out where she is working  If you get name and address of her employer you may filean application for issuing witness summons on her employer.  If she is not producing he bank statement, you can also file an application for issuing witness summons on er banker.   Whether she was working in Uk.   Further you have a son.  so you have o paymaintenance for the son.   There are case laws  that qualified spouse cannot gt maintenance.   You better file wrttten notes of arguments.   further extra advice, you better get a job somewhere else.  There are hardly any chances of getting custody.   you have alraedy sent an email to me.  It is better you talk to me personally over phone as I suggested so that some confidential tips can be given

 

Anamika Vichare

Purush Haka Saurakshan Samittee

 

Sanjay Waghmode (Education)     27 October 2014

My wife filed interim maintenance under DV act, but I am unemployedand does not have any income source, then how can i prove I have no any income source in the court

T. Kalaiselvan, Advocate (Advocate)     27 October 2014

From your query it is clear that you want to avoid paying maintenance to her, you have to establish the facts from your side in order to repudiate her claims.  Anyway, you somehow prove her sources of income and also convince the court that she has voluntarily abandoned the matrimonial home and your company hence she is not entitled to claim maintenance amount  and that you are ready even in now to take her back and maintain her in your home if she opts to return. This will help you to solve your problem to certain extent.  take the help of your lawyer to proceed with the things based n the facts and situations explained by you here.


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