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shiv shiv shiv (unemployed)     03 May 2013

Interim maintenance

Dear Ld. Friends

in a dv case can the magistrate strike out defense of the respondent, although part payment is made, an appeal against the interim maint. is filed in the higher court but the  dv lady is not responding to the same, as such my friend is forced to pay the maint. despite an appeal is pending in the higher, he is unemployed , kindly enlightened

thanks in advance 



Learning

 7 Replies

Adv Archana Deshmukh (Practicing Advocate)     03 May 2013

As the DV proceedings are quasi civil, the magistrate can strike off the defence of the respondant on non payment of interim maintainance. However, if appeal is filed then seek stay to the interim maintainance order otherwise it should be obeyed. Modification of the earlier order can also be sought on the ground of unemployment.

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(Guest)
Originally posted by : shiv shiv shiv

Dear Ld. Friends

in a dv case can the magistrate strike out defense of the respondent, although part payment is made, an appeal against the interim maint. is filed in the higher court but the  dv lady is not responding to the same, as such my friend is forced to pay the maint. despite an appeal is pending in the higher, he is unemployed , kindly enlightened

thanks in advance 

When appeal is in higher court already it was the duty of your lawyer to seek stay on IA.


Change lawyer.

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Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     04 May 2013

Dear Querist

I completly agree with Adv. Archana, if there is no stay by session Court the lower court order have to obeyed.

1 Like

shiv shiv shiv (unemployed)     06 May 2013

Thanks Ma'am for your reply , during the interim arguement the fact that the repsondent is unemployed was put forth, still the interim maintenance was awarded to teh applicant, she is avoiding the summons in the appeal case t

Adv k . mahesh (advocate)     07 May 2013

it is the duty wheater you work or you are not working the once your wife is staying speartely from your side you have to take care of her 

and in HMA there is an option if you are unemployed and your wife is earning then you can claim maintenance from her side 

Adv Archana Deshmukh (Practicing Advocate)     07 May 2013

@ Shiv Shiv Shiv,

There are legal ways provided in the statute to get the summons served. You can avail those remedies, so need to get worried about the fact that the wife is avoiding summons. Also merely saying in the arguments that the respondent is unemployed is not enuf. A lot depends upon the pleadings and the evidence on record. Generally speaking if there appear to be sufficient reasons to the court to hold that the wife is unable to maintain herself & seems to have good reasons to reside seperately from her husband, and the husband is able bodied and healthy then, he is supposed to maintain her. In case if you have good grounds, you can challange the order.

SANTOSH KUMAR PRUSTY (ADVOCATE)     08 May 2013

Domestic Violence Act does not creat any additional right in favour of wife regarding maintenance.It only enables the Magistrate to pass a maintenance order as per the rights available under the existing laws.Thus maintenance can be fixed by the courtunder Domestic Violence Act only as per prevelent Law i.e.Hindu Adoption Act& Maintenance Act, Hindu Marriege Act, Section 125Cr.P.C.-a husband is supposed to maintain his un earing spouse out of the income which he earns . No law provides that a husband has to maintain a wife , living seperately from him irrespective of the fact  whether he earns or not.  Please see the decission of the Honourable High Court of Delhi in CRL, M.C. NO. 491/2009 dtd27.08.2010 (Sanjay Bharadwaj & ors .Vrs The state & another.


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