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Munirathnam (Scientist)     18 December 2012

Mp is not disposed before main case is disposed

Hi,

 

In family court wife filed Interim application for interim maintenance . Along with the counter husband filed application (section 340 read with section 195 of CrPC) in the Interim Maintenancne Petition of wife stating perjury is committed by wife.

 

In this matter Wife petition for Interim Maintenance is main petition and the husband petition is child petition. 

 

Family Court disposed the wife's petition that is main petition ....without disposing the husband's petition. Is it valid in law .... if so when the husband's petition/application can be disposed by court?



Learning

 5 Replies

Tajobsindia (Senior Partner )     18 December 2012

1. In Family Court only S. 26 HMA as well as S. 125 CrPC are treated as “stand alone” or as main petition in reference to context and not S. 24 HMA if that is what has been disposed off.

2. In Family Court it is not necessary to file Main Application under S. 125 CrPC, wife has been given liberty even to file just an Affidavit for claiming interim maintenance under S. 125 CrPC.

Now in either of the above scenarios which you have not clarified (Section of law used by your wife) it is within power (Rules) of Family Court to dispose off a maintenance application of wife and keep said M/P (S. 340 r/w S. 195) in abeyance and language of S. 340 is very clear and in majority of Family Law related questions before Family Court(s) the Court understands well that without 15% perjury mentioned as material matter (facts) either parties Application / Petition would not have seen light of Court proceedings.

Above last sentence you can interpret in any way and if you want to strongly rebut to me then please do so bze. advance reply I will give you is from Law of Torts where specifically Law / Statutes says an Member of Parliament / MLA and Government Official drawing salary from exchequer is allowed to commit perjury and under Law of Torts damages cannot be claimed from either of them !!! Hence in such blunt realities of the land  where does your and mine Family Laws proceedings stands in reference to query my dear queriest
J


Thus, no illegality have been committed by Family Court in reference to your query is my observation, infact now you can now press for Evidence and taking S. 340 (your M/P).

Munirathnam (Scientist)     18 December 2012

In the present case wife filed main petition U/s 125 of CrPC and alleged 100% contradictory story to the 498A case story. The contradiction is such that both the version of the wife stories are not possible to happen in real scenario.

 

Also wife supressed her working and earning experiences and other sources of income.

Hence I filed perjury listing all the above.

 

If petition is disposed without disposing its Miscelleneous petitions/Interim petition, and later if court passes order in Miscelleneous petitions/Interim petitionwull it be maintainable? 

 

its almost like after disposing main case, its interim applications are taken up for decision.

 

Please correct me if I am wrong side. Thank you.  

Tajobsindia (Senior Partner )     18 December 2012

That is the problem litigants face without understand proceedings of Courts.

1. Is Family Court established under Family Court Act hearing her S. 498a IPC so why mix up Criminal matter heard by a Magistrate Court with Principal Judge Court hearing a S. 125 CrPC matter which is for vagrancy and starvation r/w refusal and neglect further r/w ability based?

2. Again you have not clarified if she filed Affidavit for interim maintenance under S. 125 The Code or filed Application u/s 125 CrPC  alleging what she has to allege therein and annexed a separate Application for interim maintenance or even did she only file an Affidavit seeking interim maintenance under The Code?

Be it as it may be, if you finding difficult to explain moot point, if you filed proofs of her working and income etc. then proper method was to press (stand down) before Family Court to dispose either way your S. 340 first before interim maintenance under The Code is disposed failing which your side should have appealed before HC seeking ‘stay directions’ along with additional direction to Family Court “in the interest of justice” taking S. 340 in “time bound” fashion or matter put on Evidence (call for) whatever you annexed as proofs in time bound fashion. OR other method was to let go interim maint. and deposit awarded amount in Court with application to dispose your S. 340 now and if goes against you then release the same (amount means) and if not then law will now take its own course against wife.

Even this last resort was not taken up on Board looks like to me.

In Delhi in a husbands case we deposited the interim award in Family Court same day and requested to take either way ours S. 340, now from last almost 2 years can you imagine family court is not taking S. 340 but then we are comfortable with it and whenever wife sheds tears to release award money we say ‘dispose either way S. 340  and release the cheque (which is now even out dated
J
) and Courts asks husband to compromise or sends him for reconciliation which we always ensure it fails. .

Since none from above I see being act of your part on Family Court Ordered part it is natural that your sides proofs were taken in material file and meanwhile the spirit of S. 125 CrPC i.e. vagrancy and starvation which are interim speedy relief’s were granted to her with directions to her to lead her Evidences for main case. Here S. 125 CrPC main application is her main case.

Now what should happen is press for call for witnesses of her job / her real estates / her FD’s / her bank statements etc. etc. and cross examine witnesses and then seek taking up S. 340 to its final conclusion whereas if you donto do this now she is bound to press for Execution and once she does that your S. 340 will go for a toss (means kept in file forever).

Regarding if no stay you manage from HC then you need to meet interim award and if you succeed later on in S. 340 then her S. 125 CrPC completely (interim that is currently awarded and final) will both get dismissed but you will not get a refund from her whatsoever to whatever you paid till that time yet the charm of sending her to even 1 night in prison via one such success story in S. 340 compensates many a husbands is my view.

See where you may stand now.

[Last reply]

Munirathnam (Scientist)     18 December 2012

Dear Tajobsindia,

 

Wife filed affidavit in Interim Maintenance appalication. Interim Maintenance appalication ia filed on the next day the CrPC-125 petition filed in Family Court.

 

I agree with you that the 498A and CrPC-125 are different whereas inmy case both willbe same on the gorund that wife is staying away from husband on the ground of alleged harassment and crulety only.....

 

Whereas the alleegd cruelty allegations in 498A and CrPC-125 are contradicting such that any one is flase without any doubt, ground to say that is alibi (physical presene to cause harassment/cruelty) as per wife's statements. On this ground only I filed 340 application read with 195 of CrPC.

 

Shall I give undertaking to the Family Court that I am ready to pay arrears without fail after passing the orders in 340 application, will it work?

 

If I pay arrears and after that if court do not take up the 340 application, what should I do?

 

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     18 December 2012

agree with Tajobsindia

nothing left to add


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