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Adinama (ZADSFSFD)     09 May 2011

maintaince

i have filed for maintaince as my husband has cheated on me and sent me and my kids back to mumbai  from abroad past 1 and half year he has not paid any amount i hv filed under ipc 25 for maintaince he earning lacs of rs but he says he has only 10k rs to give for kidsonly as he has to see his father mother and brother who are totally unemployed sick and he hs loans on his head hw much maintaince i m eligible as he says i m educated soforching me to do job n has declared tht i can earn and take care of me so no moeny to me 



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 9 Replies

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     09 May 2011

parents and brother do not come within the definition of dependants if a prson is married and is having even kids. He has his first liablity towards his wife and children and he cannot escap from liability of maintenance merely on this ground. Your counsel shall duly file replication to each and every point raised by your husband in his written statement to your application filed under section 125 Cr. P.C (not under section 25 IPC as you mentioned in your query). Courts know the excuses of husbands in such matters. You have to prove the income of your husband.

Adinama (ZADSFSFD)     11 May 2011

tkls also pl hight on following points :

1. Can he pressursie me for doing job and likewise avoid maintaince to me right now i have passed my age for a good job even if i would like to do job will not get the proper job ,, also can i get maintaince if i m working.

2. wht is the time frame of a normal maintaince proceedings ???

3. can i ask for one time settlement of maintaince as he is keen for divorce but i dont want to give to protect my kids of a taboob of a  divorcee parentens

4. have i to estaiblish his living realtionship in the court of law?? as he is currently from past 2 years

 

Adinama (ZADSFSFD)     11 May 2011

5. he has shown total salary as his n number of  loans and his own expenses and come out that only 10k is balance from his lakhs of ruppee income???

Adinama (ZADSFSFD)     11 May 2011

6. does face value of a lawyer is more imp in the court to win or the suffering and question of law is imp as my lawyer hs quiet since my husbands lawyer has a reputed lawyer 

Tajobsindia (Senior Partner )     11 May 2011

@ Author

1.
In S. 125 CrPC first you have to show "refusal to maintain" and "ability to have a income" of your husband in Court of Law. Mere saying he earns laks and crores may not lead much longer and rightful maint. for you and your children may not come much handy at the end of litigation instead more bitterness may crop in.


2. As per you own saying in your briefs his income after liabilities coming to 10 K that assumingly mean maint. by Court may be awarded from this amount and also consideration is given to permissible 'liabilities heads" he is claiming as deductions to showcause 10 K as residual income. Since you may not be aware much of these finesse of maint. Laws hence have faith in your already hired ld. Advocate and taking cues from replies here discuss further with him / her for just adjudication of your and children’s’ rightful claims under S. 125 CrPC.


3. The trauma and stigma attached to divorce is well known in orthodox customary Eastern societies but thinking of very very long term sustenance of yourself and your growing children if a amicable adjustable half way bridge between you two adults could be crossed then do keep an open mind and discuss in confidence with your hired ld. Advocate as continuing a dead relationship is more painful longer run than known to persons facing such relationships. 

hema (law officer)     11 May 2011

Raj Kumarji gave a valuable reply.  I also endorse it.  I will try to answer your pointed questions.

1. Can he pressursie me for doing job and likewise avoid maintaince to me right now i have passed my age for a good job even if i would like to do job will not get the proper job ,, also can i get maintaince if i m working.

He cannot pressurize you to do job.  But I suggest you to do some job either it is good or not or not commensurate with your qualification.  By doing job, you will be economically empowered.  Economical empowerment is the most important thing to live with dignity and to fight for your further rights.  As long as, your employment won't hamper you to look after your children, having a job is a better thing for you.  Certainly, your earning by employment may reduce the quantity of maintenance you may likely to earn from your husband, that should not discourage you to get employed. 

2. wht is the time frame of a normal maintaince proceedings ???

S.125 cr.p.c. mainntenance cases may run two to three years depending upon the parties.  But within in 3 to 6 months, on the basis of the pleadings and documents produced in the court, you and your children will be provided maintenance.  Do not forget that your children are also entitled to maintenance.

3. can i ask for one time settlement of maintaince as he is keen for divorce but i dont want to give to protect my kids of a taboob of a  divorcee parentens

Whether to accept to give divorce or not as demanded by husband is totally your own choice.  There are several things to be considered to accept his request or not.  For what he is seeking divorce?  Whose fault it is for not having a successful matrimonial life?  There may be some cases that it is neither the husband's fault nor wife's fault and both cannot adjust to each other.  In such a situation, it is better to have divorce after mutually agreeing about the permannent maintenance and custody of children and also taking care of children's right in ancestral and if possible self-acquired properties.  But before thinking about all these things, first you must come to a definite decision whether to give divorce or not.  In Section 125 cr.p.c. lumpsom amount is not possible, until both parties agree for such an amount and put the proposal before the court. 

4. have i to estaiblish his living realtionship in the court of law?? as he is currently from past 2 years

What do you mean of living relationship.  please expand.

 

5. he has shown total salary as his n number of  loans and his own expenses and come out that only 10k is balance from his lakhs of ruppee income???

A person working in a foreign land must be earning huge amount.  As far as his other dependents are concerned, I agree with Raj Kumar's reply.  For showing his income you can produce documents or in S.125, the court will direct him to place his salary statements and bank statements at your demand.

6. does face value of a lawyer is more imp in the court to win or the suffering and question of law is imp as my lawyer hs quiet since my husbands lawyer has a reputed lawyer 

No.  Your lawyer must know the law.  That is enough.



 

1 Like

Adinama (ZADSFSFD)     12 May 2011

personal tks for all and  ur valuable advice 

Adinama (ZADSFSFD)     12 May 2011

regarding point 1 as per ur advice i toally agree but as this was my last sos for him to understand that what are his  duties towards wife and kids especally kids as they are in there growing years and this is the time finance is required for their betterment of their future life he spoild my daugters education her curcial SSC by sending us back frm abroad in mid and abonding me and my two kids with no body mercy having a extra material affair at this age thinking about himself and not even kids hence after a year i went for this litigation giving him ample of time for patch up and coming to his terms for divorce , i myself is non praticising lawyer 

hema (law officer)     12 May 2011

A couple of points require further clarification.

In Section 125 Cr.p.C. you need not to prove the livein relationship.  The facts to be proved in this case are (1) existence of marriage between the parties (it can be proved as generally husband admits in pleadings) (2)  Wilful neglect  or to maintain the wife and children (this also can be proved by correspondence between the husband and wife and / or other circumstantial evidence (3) wife is unable to maintain herself and children (in the pleadings, it has to be specifically pleaded that the wife is not working) her qualification is not enough to prove that she is capable of maintaining herself. 

The most important thing to win this case is to prove the husband's real income.  For that you seek the court's direction to get salary statements from the husband's employer and his bank accounts.  Do not worry about his liabilities.  Courts will see which liabilities are genuine and which are only to evade the appropriate maintenance to the wife and children.


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