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swagath (md)     04 March 2013

Maintenance fraud

Dear friends

Husband had filed MC petition for divorce, wife filed HMA 24 and the judge awarded 1000rs plus 5000/= litigation expense and she also have an awardin DV act of 5000 rs.

now all that is husband got documents to say that she is working and getting salary.

the wife counsel filed a memo for arrears of maoney and husband said she has concealed the material fact and has not disclosed the fact that she is working and has played fruadbut he judge said as the order is not set aside by a higher court it is enforceable. even though husband said it is nullity and non est in the eye of law.

now the husband want to challenge in District court

can he file appeal under section 96


can file petiton to set aside under Order 43(1) Read with section 104 of CPC

or Writ is the only option in 226.

but law says it can be challenged in any court and the the order is vitioated by itself  kindly help.


 3 Replies

Tajobsindia (Senior Partner )     04 March 2013

Two parallel options;

1. S. 340 CrPC (perjury) before same Court in interest of justice.
2. If a Family Court established under FCA, 1984 awarded said civil maintenance then a Writ before DB at State's HC to set - aside the same.

See which is less expensive proceeding (legal fees wise) to service in long run vis-a-vis overall arrears. 

1 Like

Adv. Chandrasekhar (Advocate)     04 March 2013

With due respect to Tajobsindia, I slightly differ:

1.  If the order is to impugne S. 24 amount passed by the Addl. District judge, then appeal lies C.M. (M) lies before the single judge of the High Court to set aside the order and also stay application against execution.  If the impugned order was passed by the Family Court, then appeal lies before Division Bench under Section 19 of the Act.  There are instances of invoking writ jurisdiction under Article 227 but they are rare and when the matter comes for hearing, then judges hearing the cases generally advise to change it into C.M.(M).

2.  If the order is to impugne the amount awarded in DV case, then, appeal before the Sessions Court along with the appliation for stay.

1 Like

stanley (Freedom)     04 March 2013

@ author 

If you were unhappy with the passing of maintanence under DV act you could have filed an appeal at the sessions court and brought a stay to the proceedings under DV act  .


Section 29 in The Protection Of Women From Domestic Violence Act, 2005
29. Appeal.- There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. CHAPTER V MISCELLANEOUS CHAPTER V MISCELLANEOUS
As you had documents of her being employed why didnt you sumbit the same while the DV case was going on and having the proof of her employment you could have summoned her employer or called for their bank transcation's,Provident fund details, Bank transcations  etc  where her salary is being deposited . And  as per Tajobs you could have filed for prejury u/s 340  .
Now if the maintanence passed under DV act was okay with you than while sec 24 of HMA was going on you should have sumbitted a certified copy of the maintanence order passed under DV as  multiple maintanence is not allowed under two different acts leaving aside the litigation expenses provided from what i have understand above that Rs 1000 is awarded as maintanence under HMA 24 .  
With all due respect to my Learned friend Chandu its good to see a change in him replying to  male posts :-) 

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