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Review petition

Page no : 2

Siddharth Srivastava (Advocate)     05 September 2017

Since it is a legal defect hence it can be cured at any stage. File an application u/o 7 rule 11 CPC challenging / questioning the jurisdiction of court. According also make necessar amendment in your reply. Sidharth 9811776422

Krishnamurthy (Nil)     05 September 2017

@ Adv Radhika Mehta

If the wife is the prtitioner, she can file in the district where she lives at the time of filing the petition. Under this amendment, Poonamalle Sub Court comes in her jurisdiction only.

Return of Plaint is possible for civil suits only not for matrimonial cases, I was told. Here petitioner Vs Respondents only and the complaint is known as Petition. In civil suits only, it is called as Plaintiff Vs Defendants and the complaint is known as Plaint.

Adv Radhika Mehta (Advocate)     05 September 2017

Originally posted by : Krishnamurthy

@ Adv Radhika Mehta

If the wife is the prtitioner, she can file in the district where she lives at the time of filing the petition. Under this amendment, Poonamalle Sub Court comes in her jurisdiction only.

Yes she can as per the amendment of 2003. 

Return of Plaint is possible for civil suits only not for matrimonial cases, I was told. Here petitioner Vs Respondents only and the complaint is known as Petition. In civil suits only, it is called as Plaintiff Vs Defendants and the complaint is known as Plaint.

You were misguided.  The provisions of CPC apply to matrimonial matters. 

 

Krishnamurthy (Nil)     06 September 2017

Since now the petitioner has correct jurisdiction due to amendment in 2003, on what basis we can file application under Order 7 Rule 10, CPC? May be we can file it for delaying further proceedings?

Adv Radhika Mehta (Advocate)     06 September 2017

No that cannot be done.  I suggested Order 7 Rule 10 as you mentioned that the Petition was wrongly filed. 

sai narayana   08 September 2017

You are concentrating too much on maintenance factor which was already affirmed by supreme court so you can't do anything except obeying the same.

The previous instance of closure of 498A on the basis of her affidavit is only one of the defensive points to you but that itself can't close/quash the proceedings. So forget about it for a while and concentrate on the case based on your evidence and petitioner plaint weaknesses.

And my personal suggestion is if a husband wants divorce, in the end it may or may not materialise, whereas if a wife wants the same (divorce) then it's the symptom of  end of that relationship or there is no further scope for reunion as long as her conditions are fulfilled. So it's a wasteful exercise to contest. Hence, it's better to meet her demands for reunion or opt for mutual divorce, whichever maybe your choice, think thoroughly before proceeding.

I just shared my realisation/ own experience so I am sorry if i had made any misadventure by suggesting to a veteran.

Krishnamurthy (Nil)     12 October 2017

I understand that wife is not eligible for Maintenance or Alimony if she has deserted her husband on her own will and accord without any valid reason. But, in our case, lower court has ordered IM for wife and daughter each Rs10000 per month, total Rs 20,000 per month and HC also confirmed it and SC has dismissed on admission itself. How Court can order IM for wife for desertion without valid reason?

sai narayana   12 October 2017

Originally posted by : Krishnamurthy
I understand that wife is not eligible for Maintenance or Alimony if she has deserted her husband on her own will and accord without any valid reason. But, in our case, lower court has ordered IM for wife and daughter each Rs10000 per month, total Rs 20,000 per month and HC also confirmed it and SC has dismissed on admission itself. How Court can order IM for wife for desertion without valid reason?

 

 

Your contentions will be heard and whose version/claims are right or wrong will/can be adjudicated (decided) only after/on the conclusion of trial. But the interim maintenance is during the trial so until and unless you have an evidence that opponent litigant is working you can't escape maintenance to her. In case of maintenance to children you can't escape at all, of course if she is working the burden will be shared between both of the earners.

Siddharth Srivastava (Advocate)     12 October 2017

Desertion has nothing to do with wife's entitlement of maintenance. Your conception is contrary to law. Supreme court has already dismissed your petition whereunder you had challenge the award of maintenance to her.

Krishnamurthy (Nil)     12 October 2017

No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! Rajastan HC

No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. Rajastan HC

A deserting wife claims maintenance alleging beatings, dowry torture etc. The learner Magistrate disallows her claims based on evidence and facts. On appeal the learned sessoions court allows maintenance to the wife. Hon Raj HC appreciate the facts and decrees “… The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to say with him but she refused to accept the notice….” and refuses to grant her any maintenance. Only children get maintenance

The HC also confirms that “…In revisional jurisdiction, Court cannot be justified in reappraising evidence and come to its own conclusion when it is not shown that Magistrate omitted to consider some vital evidence or had misread evidence. Learned Addl. Sessions Judge obviously exceeded jurisdiction in reversing finding of fact recorded by Magistrate, without cogent reasons. ….”

Siddharth Srivastava (Advocate)     12 October 2017

Pl also reserch in detail. Also consult supreme court on this particular point. supreme court has already rejected and dismissed your petition challenging the grant of maintenance. What you have stated is partially correct but not absolutely correct. You have merely quoted a portion of judgement.

1 Like

sai narayana   12 October 2017

Originally posted by : Krishnamurthy
No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! Rajastan HC

2 Replies

No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. Rajastan HC

A deserting wife claims maintenance alleging beatings, dowry torture etc. The learner Magistrate disallows her claims based on evidence and facts. On appeal the learned sessoions court allows maintenance to the wife. Hon Raj HC appreciate the facts and decrees “… The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to say with him but she refused to accept the notice….” and refuses to grant her any maintenance. Only children get maintenance

The HC also confirms that “…In revisional jurisdiction, Court cannot be justified in reappraising evidence and come to its own conclusion when it is not shown that Magistrate omitted to consider some vital evidence or had misread evidence. Learned Addl. Sessions Judge obviously exceeded jurisdiction in reversing finding of fact recorded by Magistrate, without cogent reasons. ….”

What do you think about this judgment, was it adjudicated on interim or final maintenance?? The answer to this will solve the complete thread,

Siddharth Srivastava (Advocate)     12 October 2017

Who are you Mr. Sai Naryan? The order cited is a part of order passed in appeal to the final order passed after completion of trial.

sai narayana   12 October 2017

Your case is interim maintenance. That's why Supreme court didn't gave audience to you

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