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legaljoe68 (member)     29 April 2014


High Court of Indore ordered me to pay maintenance amount till such time I was employed in service .(Section 125 crpc ) on earlier order of family court indore.)2007

High Court also  ordered me to file appropriate proceedings under section 127(2) for cancellation for amount due after I lost my job and liberty to her ( wife ) to file reply against this application of mine .

The wife filed fresh maintenace application under section 125 crpc  on wrong grounds that I am earning Rs 50.000 which is not true .

Legal Point '

Without cancelation of first maintenace order can she file fresh application under section 125 crpc .

is fresh application maintainabe. judge forcedme to take copy of the fresh application without  caring for the order of the High court .

what are the legal options available to me in High court under section 226 and section 227 please advise .


 5 Replies

Tajobsindia (Senior Partner )     29 April 2014

1.    First I would like to know have you followed directions of your Hon’ble HC by filing under S. 127 CrPC under change in circumstances and pressed for its just decision by trial Court citing certified Copy of the Hon’ble HC Order?

2.    If no then these patent cat-mouse proceedings crops up.

3.    If yes then the trial Court is first bound to dispose your aforesaid para 1 Application first then proceed in accordance with law.

4.    Now your brief speaks of some misunderstanding and communication gap between you and your Advocate. The communication gap is that probably your Advocate has followed direction of Hon’ble HC and probably trial Court dismissed her earlier S. 125 CrPC (interim maintenance) and proceeds ahead in disposing main S. 125 CrPC case by inviting her to place her Evidences. I think this was not conveyed to you by your Advocate.

5.    However as the case may be in Law her second S. 125 CrPC is acceptable provided her first S. 125 CrPC is dismissed first with a reasoned Order.

6.    Suggest to sit with your Advocate and be notified of correct facts in your trial Court proceedings till date before using Art. 226/227 and approaching again to Hon’ble HC (in a way I don’t see any harm even if you approach Hon’ble HC as the facts are best known to you and may be not properly explained in this query).  

{Last reply}

Dr J C Vashista (Advocate)     29 April 2014

There are certain vital missing facts from your query, therefore, no opinion can be given based on permutation and combination. High court cannot pass such order as stated by you.

Only one application is maintainable..

Discuss the matter with your counsel and proceed.

legaljoe68 (member)     29 April 2014

thanks for valuable advice which I am going to adher to  sir

details of the case is as under ;

At the time of marriage both myself and my wife were working in the year 2004 .

Wife left the house in 2005 and moved family court Indore under section 125 Crpc for maintenance citing that she is unemployed .

I proved that she was serving with her bank statements .

Court ordered the maintenance of Rd 2000/-based on my status .2007.

I lost my Govt job in 2008 

Wife moved for arrears of maintenance in the year 2010 , court issued warrant .

I moved high court of indore. High Court ordered on 4.2.2014  to pay the arrears till such time I was in job ie upto 18.3.2008.

and case remanded back for deciding the  maintenace after 18.3.2008 .

Liberty given to me to file appropriate proceedings for this and also to the respondent to file reply.

we filed for cancellation of maintenace in case filed by her under sectiobn 125(3)  citing High Court order . Court ordered both parties to file respective stand .

before this the learned lady judge asked me to receive the fresh application moved by wife under section 125 Crpc now claiming that I earn Rs 40,000 through tutions and Rs 10,000 through shares .

Her say is totally false as I am not doing so but fighting my case for Govt Job .'

request help as I am in distress and unable to cope up with such frivolous ltitgations 

Dr J C Vashista (Advocate)     30 April 2014

A part reply to your query on the issue of award of maintenance is as under:

Did you challange the Family Court order granting maintenance to your earning (employed) wife with specific evidence/ proof ? She is not entitled. You may obtain certified copies of the proceedings (especially affidavit of her non-earininng) and file application u/s 340 Cr. PC for initiating purjury proceedings.

When you lost your job did you file petition u/s 127 Cr PC?

Be in communication with your counsel, if required may engage additional /replace previous.

T. Kalaiselvan, Advocate (Advocate)     01 May 2014

The querist has not made his stand clear even after Mr. TajobsIndia has properly explained the circumstances.  The high court has clearly instructed to file a petition u/s 127(2) before the lower court quoting the change in the circumstance, where as the querist says that he filed petition seeking cancellation of her petition u/s 125(3), this is not at all relevant.  Further, if she has filed a fresh petition u/s 125, receive the copy and go for quashing the same before the high court since it is not maintainable while there exists an impending case on the same issue, she actually should have filed a petition for enhancement of maintenance amount, and if it is so, the querist has been misguided by people around him that she has filed a fresh petition in addition to her previous petition, please verify the facts from your advocate, and if he is not able to explain you properly, you may seek a second opinion from a different advocate by apprising him of the actual situations and showing him the case papers and related details.

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