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Nidhi Joshi (Clerk)     02 June 2011

Interim Maintenace in DV

divorce case is already filed on the grounds of cruelty .after 2 years the wife has put the DV case

In the Domestic Violence  case the wife has mentioned that she is earning Rs. 10000/- .  but not submitting   her true salary details. Still the court has declared an interim miantenace of Rs. 5000/- .

a) Can I appeal in the higher court that since she has mentioned that she is working and getting Rs. 10000/- she can maintain hereself and hence interim maintenance is not required.

 



Learning

 3 Replies

Saurabh..V (Law Consultant)     03 June 2011

@Nidhi Joshi

 

When the topic of maintenance comes, the primary questions is, whether the wife left the matrimonial home due to any curelity on her by her in-laws or did she left on her own.

 

If she leaves on her own, there is no ground for maintenance. Such orders passed arbitrarily by lower courts are liable to be challenged in higher courts and higher courts could demolish such orders on finding material in your submissions (provided you can prima-facie show that the wife left on her own).

 

In case she left due to cruelity, then maintenance becomes her right. No man has a right first to marry a girl, then harraass her so that she leaves him and then he can marry another girl and then repeat his deeds. This is the reason, maintenance could not be dependant on the earnings of the wife.

 

However, still if your income is less or almost equal to what the wife is earning, then the court, exercising its discretion, may pass an order rejecting plea for maintenance. Simply because you are nowhere above her and she deserves to live as equally as your status which she accepted being your wife and not above.

 

If you case was first heard by Majistrate then you should first move to Sessions Court and then to High Court.

 

//peace

/Saurabh.V

1 Like

Adv Aileen Marques (Lawyer)     11 June 2011

When its the issue of maintenance in DV cases, section 20 enfolds things more than maintenance. When deciding maintenance, the Court takes in account:

1) Income and expenses of the wife

2) Income and expenses of the husband

3) Difference between (1) and (2). In this case, if the husband is earning more than the wife and if his standard of living is better than the wife, then the wife is considered eligible for maintenance.

You may go in appeal if the balance of convenience is in your favour.

Amit Parmar (Junior Lawyer)     23 June 2011

Nidhi

           As your case clearly attracts the defination of able body, and when she has mentioned also then their is no reason for the trial court to award maintenance, the intrem order is passed to give an immediate reliefs to the applicant, and as applicant is having an source of income U can challenge this ground.

           But if your Respondent is living an luxurious life and is having an good means Then naturally court will pass an order against Respondent ...

          But i am giving  u the solution which might help you the judgement of Hon'ble justice Dingra


Attached File : 113067 188905 23 delhihc dhingara nomaintenanceforunemployedhusband.pdf downloaded: 142 times

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