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harsh25 (clerck)     29 September 2011

Crpc125

dir sir,

my wife enter pitition crpc125 u/s me.  i have two cild male 12years & female 7years. she is working in lacturer in bed collage (contract base) salary rs.10000/- pm. she is lying alligation in application. i am live with my parrents in other village and she is live her service place village since 2006. she have entered pitition in her fathe's village. my marrige beeing in her father,s village.my salary 20000/-pm i have all proof of her alligation.she entered intrim maintanance for both child rs.6000/-pm and 4000/- for her medical nasasary.she appered in her aplication live with her parants. and not earn. i proove she is employee in court with evidance. and also proove she is not live her parrants.and also prove she lying in all alligation. can jugdge refuse the case or not? i can go HC oppsite judgement of intrim maintanance or not?  can i costudy of my child ? help me



 5 Replies

adv. rajeev ( rajoo ) (practicing advocate)     29 September 2011

you produce all the doucments to show that yor wife is earning and you have not neglected her wilfully.

vijayan (lawyer)     29 September 2011

you are in bond to maintain your children, irrespective of the fact that they are living with your wife. You are an earning father. You are  not liable to give maintanance to your wife since she is able to maintain herself, if you prove her income. Try to obtain custody of children by filing OP before competant court under guardian and wards act.

Roopa (Solicitor)     30 September 2011

I agree with Mr. vijayan. As per law it is the duty of the man to maintain his wife, children and parents more so when he is sufficiently earning. Further here you have not cited any clear reason for your wife not living with you. further it seems you have also not made any attempts to bring her back nor have you filed any petition for restitution of conjugal rights which shows that there is more than what meets the eyes.  So it is better to pay maintenance to your children at least.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     30 September 2011

Dear Harsh

according to section 125 Crpc


 

(1) If any person leaving sufficient means neglects or refuses to maintain-

 

(a) His wife, unable to maintain herself, or

 

(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

 

(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

 

(d) His father or mother, unable to maintain himself or herself,

 

A Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate1[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::

 

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means.

 

2[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

 

Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person]

 

Explanation. For the purposes of this Chapter.

 

(a) Minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority;

 

(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

 

3[(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]

 

(3) If any Person so ordered fails without sufficient cause to company with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's 4[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

 

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

 

Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to just ground for his wife's refusal to live with him.

 

(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.

 

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to, live with her, husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

 

1. The words "not exceeding five hundred rupees in the whole" omitted by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).

 

2. Ins. by Act 50 of 2001, sec.2 (w.e.f. 24-9-2001).

 

3. Subs. By Act 50 of 2001, sec 2, for sub-section (2) (w.e.f. 24-9-200).

 

4. Subs. By Act 50 of 2001, sec 2, for "allowance" (w.e.f. 24-9-200).

 

STATE AMENDMENTS


 

Madhya Pradesh:

 

In section 125, in sub-section (1), for the words "five hundred rupees" the words m' "three thousand rupees" shall be substituted.

 

[Vide M.P. (Act 10 of 1998), sec. 3 (w.e.f. 29-54998)] [Ed. This amendment has been I made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 W (Central Act 50 of 2001) whereby the words "not exceeding five hundred rupees in the I whole" have been omitted by sec. 2 (w.e.f. 24-9-2001)].

 

Maharashtra:

 

In Section 125,-

 

(a) in sub-section (1),-

 

(i) for the words "not exceeding five hundred rupees" the words "not I exceeding fifteen hundred rupees" shall be substituted;

 

(ii) before the existing proviso, the following proviso shall be inserted, namely:-

 

Provided that, the Magistrate on an application or submission being made, supported by an affidavit by the person who has applied for the maintenance under this sub-section, for payment of interim maintenance, on being satisfied that, there is a prima facie ground for making such order, may direct the person against whom the application for maintenance has been made, to pay a reasonable amount by way of interim maintenance to the applicant, pending the final disposal of the maintenance application:

 

Provided further that, such order for payment of interim maintenance may, in an appropriate case, also be made by the Magistrate ex parte, pending service of notice of the application, subject, however, to the condition that such an order shall be liable to be modified or even cancelled after the respondent is heard in the matter:

 

Provided also that, subject to the ceiling laid down under this sub-section, the amount of interim maintenance shall, as far as practicable, be not less than thirty per cent of the monthly income of the respondent.";

 

(iii) in the existing proviso, for the words "Provided that" the words

"Provided also that" shall be substituted;

 

(b) after sub-section (2), the following sub-section shall be inserted, namely:-

 

(2A) Notwithstanding anything otherwise contained in sub-sections (1) and (2), where an application is made by the wife under clause (a) of sub-section (1) for the maintenance allowance, the applicant may also seek relief that the order may be made for the payment of maintenance allowance in lump-sum in lieu of the payment of monthly maintenance allowance, and the Magistrate may, after taking into consideration all the circumstances obtaining in the case including the factors like the age, physical condition, economic conditions and other liabilities and commitments of both the parties, pass an order that the respondent shall pay the maintenance allowance in lump-sum in lieu of the monthly maintenance allowance, covering a specified period, not exceeding five years at a time, or for such period which may exceed five years, as may be mutually agreed to, by the parties.";

 

(c) in sub-section (3),-

 

(i) after the words "so ordered" the words, brackets, figures and letter "either under sub-section (1) or sub-section (2A), as the case may be," shall be inserted;

 

(ii) after the words "each month's allowance" the words "or, as the case may be, the lump-sum allowance to be paid in lieu of the monthly allowance" shall be inserted.

 

[Vide Maharashtra Act, 21 of 1999 sec. 2 (w.e.f. 20-4-1999)] [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) sec. 2 (w.e.f. 24-9-2001)].

 

Tripura:

 

In section 125, for the words "five hundred rupees" the words "one thousand five hundred rupees" shall be substituted.

 

[Vide Tripura Act, 9 of 1999 sec. 2 (w.e.f. 9-4-1999}] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words" not exceed of five hundred rupees in the whole" have been omitted by sec. 2 (w.e.f. 24-9-2001)].

 

STATE AMENDMENTS

 

West Bengal:

 

In Sub-section (1) -

 

For the words "five hundred rupees" the words "one thousand and five hundred rupees" shall be submitted.

 

(2) After the existing proviso, following proviso shall be inserted, namely.

 

"Provided further that where in any proceeding under this section it appears to the Magistrate that the wife referred o in clause (a) or the minor child referred to in clause (b) or the child (not being a married daughter) referred o in clause (c) or the father or the mother referred o in clause (d) is in need of immediate relief for her or its or his support and the necessary expenses of the proceeding, the Magistrate may, on the application of the wife or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, order the person against whom the allowance for maintenance is claimed, to pay to the petitioner, pending the conclusion of the proceeding the expenses of the proceeding, and monthly during the proceeding such allowance as having regard to the income of such person, it may seem to the Magistrate to be reasonable.

 

[Vide West Bengal Act 25 of 1992 (w.e.f. 2-8-1993)] [Ed. This Amendment has been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) whereby the words "not exceed of five hundred rupees in the whole" have been omitted by sec. 2 (w.e.f, 24-9-2001)].

 

[Vide W.B. Act 25 of 1992 (w.e.f. 2-8-1993)
 

if you prov in court that your wife is earning aldy and able to maintane herself and you are willing to live togather, you are not neglacted her then it is mandatory to court to dismiss her petition. you can also go to high court against any intirim order. an dyou can also file a petition Try to obtain custody of children by filing before competant court under guardian and wards act. feel free to call me on my mob 9953809956
 

Sankaranarayanan (Advocate)     30 September 2011

yes even she is having earning capacity , you have to pay the amout for ur children's maintanace, With the details of evidence and records can be stop to paying her maintanance. But you can't refuse for pay amout for your kids.


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