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(Guest)

Maintenance for self and daughter

Hi,

My sister's is an arranged marriage, she got married in Arya Samaj mandir in year 2007 Sept. She was physically and  mentally harassed by her husband (who stays abroad for past 10 years ). Since 2008 Feb she was forced to leave her husband'shouse in Delhi by her husband and in laws and since then she is staying with us(,though she filed a police complaint in Nov 2007 when she was humiliated and tortured,). We belong to a middle calss family and stay in rented accomodation, they are very rich and keep on puting pressure for not filing any case against them. My sister has a 3.5 year old daughter. Her husband till date has not paid any money to them.My sister is working in a BPO and earning around 40k and her husband as stated in year 2007 was earning 2 lacs per month(which might have increased in 4 years now).

She doesnt want divorce as of now..just looking for maintenance of self and daughter, as whatever she is earning goes in rent, daughter's eductaion, houehold things etc . Please advice, what are her rights, can she also file for law of conjugal rights, is she entitled for maintenance for self and daughter.

We are really in a bad situation, seek lawyer's help.

AS



Learning

 21 Replies

Adv Archana Deshmukh (Practicing Advocate)     26 May 2012

Your sister can file a petition for restitution of conjugal rights if she wants to go back to her husband. If the husband and in-laws are harrassing her and not allowing to come back then file a petition under domestic violence act and seek protection order and residencial orders. She can also seek maintainance for her daughter.

1 Like

(Guest)

@ Archana, Thanks  for your advice....I spoke with some other lawyers too as per them Restitiution of conjugal rights can go against her if her husbnad doesnt show willingness or doesnt stay with her for a year.....Her husband at no cost wants to come back from abroad and her in laws here at no cost are ready to accept her and let her enter her matrimonial house. My sister is working now but how long will she work , she has a daughter and as she is growing there are lots of responsibility that she needs to cater towards her. Her husband has not even seen her daughter and he puts false allegations on my sister.

He says he'll not give a single penny to my sister and her daughter.My sister still wants to giver her daughter both the parents and have tried all the ways to make him undertsand through chat and emails but all in vain....

 

Would'nt my sister be entitled for Maintenance, what is tomorrow she doesnt have a job...who'll take care of her and support her in future...as she doesnt have a house to stay in..who'll  support her daughter's needs and her education etc in future...This guy is  not even bothered and is spending his life happily...what about my sister and neice, why do they have to go through all this hell???

 

Vijay Raj Mahajan (Advocate)     27 May 2012

 

What is best solution in the given case is seeking maintenance for the Minor Child from the father/husband under section 125 Cr.P.C wherein it is clearly provided that the liability to maintain the minor children is on the father unlikely like any other provision of law where this liability may be enforced on either of the parent.

 

As far seeking maintenance for herself is concerned under the same provision, namely 125 Cr.P.C is concerned the chance is fifty-fifty as she herself has source of income for her personal maintenance, however if the income she has is not sufficient enough for her needs the court may allow some portion of monthly financial help  from her husband, but in such case the actual income of both parties & necessary reasonable needs of the wife for herself shall be taken in account, if the court orders complete monthly maintenance for the minor child to be provided by the father/husband, the liability of child monthly maintenance not on wife & her own monthly income being Rs40,000/- per month, the chance her getting any amount for herself from the husband seems very bleak, however nothing wrong seeking the same, as one doesn't know what goes in the mind of the presiding judge while deciding this issue & he may allow some amount for her too along with the minor child as happened in few cases previously too.

 

 

1 Like

Adv. Chandrasekhar (Advocate)     27 May 2012

As she is not interested to give divorce, I strongly suggest that she should not file RCR case, which may effect her in long run.  She can file maintenance case under Section 125 cr.p.c. for herself and child and the child will certainly get maintenance but in her case, getting maintenance there is remote chance.  As she has to spend huge amount for rents, child's education and medical expenses, I suggest her to file Domestic Violence case and there seek shared household/ protection orders (if there is possibility of any hostility from in-laws), educational and medical expenses.  The courts will note that there is huge income gap between the husband and wife and try to provide relief to the wife.  Your jija may say whatever he likes to say about not paying penny, but at the end he should pay.

Adv. Chandrasekhar (Advocate)     27 May 2012

As she is not interested to give divorce, I strongly suggest that she should not file RCR case, which may effect her in long run.  She can file maintenance case under Section 125 cr.p.c. for herself and child and the child will certainly get maintenance but in her case, getting maintenance there is remote chance.  As she has to spend huge amount for rents, child's education and medical expenses, I suggest her to file Domestic Violence case and there seek shared household/ protection orders (if there is possibility of any hostility from in-laws), educational and medical expenses.  The courts will note that there is huge income gap between the husband and wife and try to provide relief to the wife.  Your jija may say whatever he likes to say about not paying penny, but at the end he should pay.

Anjuru Chandra Sekhar (Advocate )     27 May 2012

I spoke with some other lawyers too as per them Restitiution of conjugal rights can go against her if her husbnad doesnt show willingness or doesnt stay with her for a year.... Amit. When RCR is filed by a woman, and court gives a favorable order it is for husband to respond to it. It is customary in India that woman stays at the house of husband. So when RCR is passed it is not the husband who will come to stay with woman but it is wife who goes to stay with husband. And it depends on whether husband is willing to obey the order of RCR or not. When a husband files RCR and court gives order in his favor and woman does not go back to matrimonial home disobeying court orders, then he has every right to file for divorce after 12 months, he will easily get it. But when wife files RCR and court gives a favorable order and husband does not respond to take her to her matrimonial home, he will not get any relief as mentioned in earlier case, because he cannot make use of his own wrongs.

Adv. Chandrasekhar (Advocate)     27 May 2012

Mr. Chandrasekhar,

on one earlier occasion, you have given similar advice saying that a person, who wilfully disobey to comply the RCR decree cannot seek the divorce one year after passing of the RCR decree as one cannot get the benefit of his/her wrong doing.  This is not the correct appreciation of law on the basis of the precedents available on this point.  The case laws, which were quoted on this forum itself (they are not readily available with me and also you may do some research on this point) say that a person against whom RCR decree is passed and intentionally not complied can get divorce by moving appropriate divorce petition, one year after passing of RCR decree.  I hope you will verify before repeating your advice again on this point. 


(Guest)

Thanks All ...Though she has decided to proceed for sec125 ,Would it be good enough to state about the harassamnet that he had given to my sister mentally and physically in the petition. Someone has adviced to just file a simple 125 Petition.

My question is what if tomorrow seeing maintenance petition he files for divorce and put allegations against us. We should in 125 petition ,do mention about all his cruelty and  non responsible behavior too.

Also as he is doing business abroad how would we be in a condition to prove his income. My sister is in service and her income is transparent howveer as he is in abroad , it might be possiblet that he doesnt file his iTR in India.He might be doing it abroad(where he stays). How can we gather all the informatin and prove his income.

He was gettng 1.5-2 lacs per month as stated in his marriage profile which was shared by us..In these four years as his business had flourished enough he might be earning much more..Do Judges keep this into consideration too..that my sister was earning 20k before marriage and in these 4 years she is gettimg 40k ..wouldnt his income be surplused till now...

He says he'll show himself working under his father and gettimg a salary of  25k-50k. Ya'll advice appreciated

Vijay Raj Mahajan (Advocate)     28 May 2012

 

The maintenance under section 125 Cr.P.C is provided to the minor child irrespective of where they stay but the same is provided to a wife if she lives away from the husband & has sufficient grounds for doing so, namely she has suffered cruelty from the husband or has been deserted by him for no sufficient reason.

 

The wife otherwise is supposed to live with her husband but if she refuse to do so namely refuse to resume conjugal relationship with her husband she has to give reason for the same otherwise she will not be entitled for any financial help from the husband under this provision of law.

 

The wife has to state in the Petition the grounds for her living away from the husband & those grounds are all his acts of cruelty & maltreatment towards her.

 

The income of the parties which existed few years back & which now exist are also be weighed on the balance of inflation scale during these years, if the wife earned 20K before marriage 4 years back & now after 4 years she earns 40K the inflation during these 4 years have also increased 2times hence this will also be taken in account by the court while deciding the issue of whether any financial help is to provided to the wife or not.

 

 

 

 

1 Like

(Guest)

Few points

1.If my sister's income has increased 2 times,it would be in the husband's case as well that his income might have got increased to 4-5 lacs per month. If she files a petition in June and the order comes in somehere in Dec, would she be entitled for Maintenance from June or  from when this order will come into effect(Dec in this case)

2. As of now she is staying with us and we too are staying in a rented accomodation, she goes to work and my mom takes care of my neice.How can she also get a house to stay and even is she gets house.she would need parents to stay with her to look after the little one.Can she get a right to stay in her matrimonial house , which is in Delhi itself, her inlaws are staying there but they threaten her to not even look there.

3. Tomorrow if her husband asks her to join him abroad and thoguh she is willing to ,if she goes leaving her job and he again throws her out ,What wil lhappen to her job front,its not that easy to get a job again in the market when she is just a graduate and doesnt hold any other degree or diploma etc. Is there any security etc that he needs to deposit in the court if she takes her an my neice away.

I am really sorry for posting so many questions but I dont want her to face any issues as she has and she is going through hell....

 

Thanks All

 


(Guest)

Also My sister wants to apply for passport for her daughter..How can she do that

Adv. Chandrasekhar (Advocate)     29 May 2012

Maintenance will be given in some cases from the date of maintenance application and in some cases from the date of order.  It is a discretionary power exercised by the court. (2)  If she apprehends such fear about her in-laws and also the property where her in-laws living is in their name and your sister and jijaji never lived there, it is always advisable to ask for a rented property from husband to live in, where as husband will be directed to pay the rent.  (3)  Next question raises very important question in matrimonial  jurisdiction - What is matrimonial home?  Where the husband lives or where the wife lives?  The courts have not given definite reply to this question.  In the given facts of this case, keeping in view of volatile and hostile nature of the husband living abroad, the wife cannot leave her job and go to husband with empty hands.  Yes, you can ask the court that husband be directed to deposit certain amount as surity for asking her to leave job and go abroad.  But how far you will succeed in convincing the court about deposit of money or security, I am doubtful. 

Adv. Chandrasekhar (Advocate)     29 May 2012

Apply for passport and ask the consent of father.  If he does not give consent, even then apply for passport.  If passport authority refuses on this ground, approach the High Court making passport authority and father as parties.

Adv. Chandrasekhar (Advocate)     29 May 2012

Apply for passport and ask the consent of father.  If he does not give consent, even then apply for passport.  If passport authority refuses on this ground, approach the High Court making passport authority and father as parties.


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