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MASTHAN (Self employeed)     22 October 2010

maintainence u/s 125 Crpc to a muslim 498A girl

Hi All,

My brother got married in JUN-2009 as per ISLAMIC customs and she was with her husband for 1 1/2 month. In JUL-2009 she absconded from her in-laws house, since then she was staying with her parents. She filed a false 498A case against all my family members in NOV-2009. The charge sheet was submitted and we gone to HC for quash. The quash petiion is pending in HC.

Last month my brother sent first TALAQNAAMA notice to his wife through Quazi. She received it but did not appeared in front of QUAZI, so we asked QUAZI to sent a second notice.


Today we received a notice from the court and in the notice it is mentioned that his wife filed maintainence u/s 125 Crpc. But the notice doesn't contain her petition copy.

1. How we can get her petition copy before we attend to the court?

2. She filed for maint before QUAZI approves the divorce.

3. My brother is physcially challenged (left hand polio PH 50%) and he is working in  a pvt scholl for Rs 2000/- PM. He dont have any other source of income and NO assets registered on his name.

4. She is well educated , her qualification is MA, HPT(Hindi Pandit Training) and also she is working in a pvt school (right now we dont have any evidence for this).

5. If we dont get good judgement in FIRST CLASS MAJISTRATE court, can we go to sessiosns court or HC on the same?

6. If judge pass any maint order, do we need to pay it from the date of her petition or do we need to pay it from the date of maintainence order ?

7. For her qualification if she work in any pvt school she can easily maintain her self .

In the above circumstances what  immediate step we need to take to  fight against this ?

 

Thanks,

Masthan

 

 

 

 

 

 

 

 



Learning

 14 Replies


(Guest)

only i say at this stage(as dont have full fact of the case) is  that  she is entitle for maintenance.she have a qualification  or not it doesnt matter.If her income is not proper if she have a job she ask for maintenance.

You have to prove to evade  a maintenance if 

(4)            No wife shall be entitled to receive an allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent (section 125 of CRPC 1973)

 

You have to prove that she have without any sufficient reason, refuses to live with him..


(Guest)

CAN U PROVE HER INCOME?

WHAT IS HER RELIGION?

PHYSICAL DISABILTY CERTIFICATE?

YES SHE CAN CLAIM EVEN WITHOUT TALAAQ U/S 125

MASTHAN (Self employeed)     23 October 2010

1. Right now we dont have any proof for her income

2. She also belongs to ISLAMIC community

3. Yes, we have physical disability certificate issued by Govt doctor.

 

Questions:

1. If we dont get good judgement in FIRST CLASS MAJISTRATE court, can we go to sessiosns court or HC on the same?

2. If judge pass any maint order, do we need to pay it from the date of her petition or do we need to pay it from the date of maintainence order ?

3. As per my knowledge to get mainta u/s 125 Crpc she needs to prove the crulity. Right ?

MASTHAN (Self employeed)     23 October 2010

Vyas: You have to prove that she have without any sufficient reason, refuses to live with him..

>>>Masthan: 

1. As I told you already she filed a false 498A against all my family members, so in her "maint" petition she will make the same false allegations , thet are harassing me thats why I am not staying with my husband?

2. She may claim that they initiated divorce process so I want maint ( I am not sure what grounds she filed,  I will try to get her petition copy at least by the end of next week and I will share the exact facts of the case.


(Guest)

ENGAGE A GOOD , HONEST LAWYER AND FIGHT IT TOOTH AND NAIL


(Guest)

is there anything similar to RCR in islamic law?

use it .

if she has concealed any income , asset or earning capacit76y highlight it.

u can go to any higher court , but go there only if u have merits in ur case , i mean there is a genuine injustice.

Simple Life (Pensioner)     23 October 2010

Dear Masthan,

I am a VICTIM of Sec 125.  This section was originally created to cater for the UNDER PREVILIGED women in India, LIVING IN MOST BACKWARD RURAL INDIA

In my issue the case has been in the courts for the past EIGHT YEARS, and there are many such pending petitions which have not seen any final judgement for the past ten years plus

My friend, THE ONLY OPTION IS "OUT-OF-COURT",

BECAUSE there are very few JUDGEs to LISTEN TO YOUR SIDE, 

AND

There are very few Lawyers who will fight for You, because they also know what I have quoted below

"THE LAW IS MADE IN SUCH THAT "FIRST GIVE TO THE WIFE, THE HUSBAND WILL PAY OR LIVE WITH HER OR COMMIT SUICIDE

(- No positive options for the husband there ! ! ! !)

Because EVERY FEMALE who wants to run a case / file a case against the husband for the real CARNAL PLEASURE, other than DOWRY, TORTURE, Etc., is free to use this section provided this female is able to pay the lawyer

You want more details post me a message or you email ID, I will reply

MASTHAN (Self employeed)     23 October 2010

Hi All,

 

Thankks for your reply. From the above facts , can any one guess/tell approximately how much my brother needs to pay to his bitter half (if he needs to pay) ? My brother is earning Rs 2000/- PM no other income, no assets registered on his name.

 

Thanks,

Masthan

MASTHAN (Self employeed)     23 October 2010

Hi Sony,


Let me explain the divorce process that we are following in ISLAMIC communities.

 

1. Quazi will send first notice to other party and he will ask to attend in front of him. If both the  parties attend in front of him then he will try to compromise both parties at his best to save a marriage,  if they dont compromise then he will ask both the parties to attend in front of him and Quazi will try to compromise both the parties again. If they dont compromise in the second sitting also he will ask both the parties to come after another one month. If they dont compromise even in third sitting also then he will issue the divorce.

 

So in the above process the first three sitting are kind of RCR  ( I think we can take it in that direction but not sure).

 

In our case Quazi sent  first notice to other party but they didnot attended infront of him , so he sent second notice to them . I am not sure whether they will come for second /third sittiings .

 


(Guest)

engage a good lawyer to minimise damages. if there is no offspring 500 to 700 rs per month approx. menwhile try to prove her income (if any) , to avoid maintenance.

is there any dependent parents.

is any home rental.

any permanent medical expenses?

put ur medical certificate as well.

MASTHAN (Self employeed)     25 October 2010

Hi Sony,

Thanks for your reply.

Actually I am thinking not to hire any advocate for this. I want to fight in the court on behalf of my brother (I know the case facts more than any one). Is there a way to represent my self on behalf of my brother?

 

Thanks,

Masthan

 

Dalip Kumar Chhabra (Advocate)     14 December 2010

Dear Mastan,

Following judgment would be of great help for you and others like u.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

 

 

Date of Reserve: 9th August, 2010
Date of Order: 27th August, 2010
+Crl.M.C.No. 491/2009
                  
   27.08.2010

 

  Sanjay Bhardwaj & Ors.        ... Petitioner 

      Through: Dr. Naipal Singh, Advocate
 

Versus

 

  The State & Anr.                ... Respondents

 

 

      Through: Mr. O.P.Saxena, APP for the State
      With Mr. Gajraj Singh, SI
      Mr. K.C.Jain, Adv. for the Complainant/Wife

 

 

JUSTICE SHIV NARAYAN DHINGRA

 

1. Whether reporters of local papers may be allowed to see the judgment?  Yes.

2. To be referred to the reporter or not?            Yes.

3. Whether judgment should be reported in Digest?        Yes.

 

JUDGMENT 

 

The present petition under Section 482 Cr.P.C. assails an order of interim maintenance under  The Protection of Women from  Domestic Violence  Act, 2005 (in short Domestic Violence Act)  passed by the learned MM  on 16th January, 2008  and confirmed by the learned  Additional Sessions Judge in appeal by order dated 29th February, 2008.

 

2.    The petitioner was a Non-Resident Indian, working in  Luanda,  Angola  in Africa as a Manager.  He came to India  taking leave from his job for marriage.  Marriage between the petitioner and respondent  no.2/wife was settled through matrimonial advertisement.  The respondent wife was MA (English) and MBA.  As per her bio-data sent before marriage, she was doing job with a Multinational Company.  The marriage between the parties was solemnized on 14th May, 2007 at a Farmhouse in Vasant Kunj and was got registered on 25th May, 2007.  The parties lived together for a limited period of 10 days i.e. from 15th May, 2007 to 19th May, 2007 and from 2nd June to 6th  June, 2007.  While the allegations of husband are  that marriage failed within 3 weeks since  the wife was suffering from a chronic disease about which no information was given to him  before marriage  and a fraud was played.  The allegations made by wife were as usual of dowry demand and harassment.   Since the marriage did not succeed,  the husband/petitioner filed a petition under Section 12 of Hindu Marriage Act for declaring the marriage  as  null and void and the wife  first  filed an FIR against the husband under Section 498A/406 IPC and then filed an application under Section 12 of Domestic Violence Act.

 

3.    It is not relevant for the purpose of this petition  to go into the details of allegations and counter allegations made  by each other.  Suffice it to say that the learned MM passed an order dated 16th  January, 2008 directing husband to pay an interim maintenance of  ` 5000/- pm to the wife.  He fixed this maintenance without considering the contentions raised by the husband  (as is stated in the order)  that  the husband  lost his job in Angola  (Africa) where he was working  before marriage because his passport was seized by police  and he could not join his duties back.  After marriage he remained  in India, he was not employed.  In  the appeal,  learned Additional Session Judge noted the contentions raised by the husband that he had become jobless because of the circumstances as stated by him and  he had no source of income,  he was not even able to maintain himself and had incurred  loan,  but observed that since the petitioner had earlier worked abroad as  Sales Manager  and  in view  of the  provisions of  Domestic Violence Act,  he had the  responsibility to maintain  the  wife and monetary  relief  was  necessarily  to be provided to  the aggrieved person i.e. wife.  He observed that the wife was not able to maintain herself therefore husband,  who  earned handsomely  in past while working abroad, was liable to pay 5000/- pm to the wife as fixed by the learned MM. 

 

4.    A perusal of Domestic Violence Act  shows  that Domestic Violence Act does not create 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 existing laws.  While, the Act specifies  the duties and functions of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband  or the duties of  wife.  Thus,  maintenance can be fixed by the Court under Domestic Violence Act only as per prevalent law regarding providing of maintenance by husband to the wife.  Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act,  Section 125 Cr.P.C  -  a husband is supposed to maintain his un-earning spouse out of the income which he earns.  No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not.   Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife,  more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage.  If the husband was BSc.  and Masters  in Marketing Management from Pondicherry University,  the wife was MA  (English) & MBA.  If  the  husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India.  Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act.  

 

5.  We are living in an era of equality of s*xes.  The Constitution provides equal treatment to be given irrespective of s*x, caste and creed.  An unemployed husband,  who is holding an  MBA degree,  cannot be treated differently  to an unemployed wife, who is also holding an MBA degree.  Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed.  As far as  dependency  on parents is concerned,  I consider that once  a person is  grown up,  educated  he  cannot  be asked to beg and  borrow from the parents and maintain  wife.  The parents had done their duty of educating them and  now  they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves.

 

6.    It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence.  Marriages do fail for various other reasons.  The difficulty is that real causes of failure of marriage are rarely admitted in Courts.  Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts. 

 

 

7.    I therefore find that the order  dated 16th  January, 2008 passed by the learned MM and order dated 29th February, 2008 passed by the learned Additional Sessions Judge  fixing maintenance without there being any prima  facie proof of the husband being employed  are  not tenable  under  Domestic

Violence Act.  The petition is allowed.   The orders passed by Metropolitan Magistrate and learned Additional Sessions Judge are hereby set aside.


August 27,  2010               SHIV NARAYAN DHINGRA, J. 

 

Dalip Kumar Chhabra (Advocate)     14 December 2010

Hi Mastan,

Take shelter of following judgment.  I think it would of great help for you and others like you.

Thanks

Dalip Kumar Chhabra (Advocate)     14 December 2010

Hi Mastan,

Take shelter of the following judgment, I think, would be of great help for you and persons like u.

DKC

* IN THE HIGH COURT OF DELHI AT NEW DELHI

 

 

Date of Reserve: 9th August, 2010
Date of Order: 27th August, 2010
+Crl.M.C.No. 491/2009
                  
   27.08.2010

 

  Sanjay Bhardwaj & Ors.        ... Petitioner 

      Through: Dr. Naipal Singh, Advocate
 

Versus

 

  The State & Anr.                ... Respondents

 

 

      Through: Mr. O.P.Saxena, APP for the State
      With Mr. Gajraj Singh, SI
      Mr. K.C.Jain, Adv. for the Complainant/Wife

 

 

JUSTICE SHIV NARAYAN DHINGRA

 

1. Whether reporters of local papers may be allowed to see the judgment?  Yes.

2. To be referred to the reporter or not?            Yes.

3. Whether judgment should be reported in Digest?        Yes.

 

JUDGMENT 

 

The present petition under Section 482 Cr.P.C. assails an order of interim maintenance under  The Protection of Women from  Domestic Violence  Act, 2005 (in short Domestic Violence Act)  passed by the learned MM  on 16th January, 2008  and confirmed by the learned  Additional Sessions Judge in appeal by order dated 29th February, 2008.

 

2.    The petitioner was a Non-Resident Indian, working in  Luanda,  Angola  in Africa as a Manager.  He came to India  taking leave from his job for marriage.  Marriage between the petitioner and respondent  no.2/wife was settled through matrimonial advertisement.  The respondent wife was MA (English) and MBA.  As per her bio-data sent before marriage, she was doing job with a Multinational Company.  The marriage between the parties was solemnized on 14th May, 2007 at a Farmhouse in Vasant Kunj and was got registered on 25th May, 2007.  The parties lived together for a limited period of 10 days i.e. from 15th May, 2007 to 19th May, 2007 and from 2nd June to 6th  June, 2007.  While the allegations of husband are  that marriage failed within 3 weeks since  the wife was suffering from a chronic disease about which no information was given to him  before marriage  and a fraud was played.  The allegations made by wife were as usual of dowry demand and harassment.   Since the marriage did not succeed,  the husband/petitioner filed a petition under Section 12 of Hindu Marriage Act for declaring the marriage  as  null and void and the wife  first  filed an FIR against the husband under Section 498A/406 IPC and then filed an application under Section 12 of Domestic Violence Act.

 

3.    It is not relevant for the purpose of this petition  to go into the details of allegations and counter allegations made  by each other.  Suffice it to say that the learned MM passed an order dated 16th  January, 2008 directing husband to pay an interim maintenance of  ` 5000/- pm to the wife.  He fixed this maintenance without considering the contentions raised by the husband  (as is stated in the order)  that  the husband  lost his job in Angola  (Africa) where he was working  before marriage because his passport was seized by police  and he could not join his duties back.  After marriage he remained  in India, he was not employed.  In  the appeal,  learned Additional Session Judge noted the contentions raised by the husband that he had become jobless because of the circumstances as stated by him and  he had no source of income,  he was not even able to maintain himself and had incurred  loan,  but observed that since the petitioner had earlier worked abroad as  Sales Manager  and  in view  of the  provisions of  Domestic Violence Act,  he had the  responsibility to maintain  the  wife and monetary  relief  was  necessarily  to be provided to  the aggrieved person i.e. wife.  He observed that the wife was not able to maintain herself therefore husband,  who  earned handsomely  in past while working abroad, was liable to pay 5000/- pm to the wife as fixed by the learned MM. 

 

4.    A perusal of Domestic Violence Act  shows  that Domestic Violence Act does not create 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 existing laws.  While, the Act specifies  the duties and functions of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband  or the duties of  wife.  Thus,  maintenance can be fixed by the Court under Domestic Violence Act only as per prevalent law regarding providing of maintenance by husband to the wife.  Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act,  Section 125 Cr.P.C  -  a husband is supposed to maintain his un-earning spouse out of the income which he earns.  No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not.   Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife,  more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage.  If the husband was BSc.  and Masters  in Marketing Management from Pondicherry University,  the wife was MA  (English) & MBA.  If  the  husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India.  Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act.  

 

5.  We are living in an era of equality of s*xes.  The Constitution provides equal treatment to be given irrespective of s*x, caste and creed.  An unemployed husband,  who is holding an  MBA degree,  cannot be treated differently  to an unemployed wife, who is also holding an MBA degree.  Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed.  As far as  dependency  on parents is concerned,  I consider that once  a person is  grown up,  educated  he  cannot  be asked to beg and  borrow from the parents and maintain  wife.  The parents had done their duty of educating them and  now  they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves.

 

6.    It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence.  Marriages do fail for various other reasons.  The difficulty is that real causes of failure of marriage are rarely admitted in Courts.  Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts. 

 

 

7.    I therefore find that the order  dated 16th  January, 2008 passed by the learned MM and order dated 29th February, 2008 passed by the learned Additional Sessions Judge  fixing maintenance without there being any prima  facie proof of the husband being employed  are  not tenable  under  Domestic

Violence Act.  The petition is allowed.   The orders passed by Metropolitan Magistrate and learned Additional Sessions Judge are hereby set aside.


August 27,  2010               SHIV NARAYAN DHINGRA, J. 

 


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