Normally on what situation interim maintenance application got rejected (or) keep a side?
Adv. Nikhil Seth (legal consultant (9867264707)) 24 December 2012
can you tell something about the matter its difficult to say on what grounds / situations interim mainatainance can be rejected.
Adv. NIKHIL SETH
Geetanjali Sharma (Advocate) 24 December 2012
Sakshi Sakshi (Self employed) 25 December 2012
How can court come to any conclusion when court iteslf does not have any subject matter expertise in the area of
employments, job prospeccts in various fields, scenarios of recession
burn out period,
competitions in each sector,
Past dta as to salary income etc is a past data .... and nothing more can be drawn from the same.
Only ongoing employment salary data ought to considered.
Past data as to earning of a spouse husband or a wife ought to treated as past data except if they are in goverment job, rest of the sectors there is no job guarantee and job protection on the same lines as govt sector or anywhere near to the same.
Nadeem Qureshi (Advocate/ firstname.lastname@example.org) 25 December 2012
if the wife filed a maintenance petition against husband u/s 125 of Cr.PC along with the Intrim Maintenance petition the main thing for husband is
(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 comply 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's4[ 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 be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an 4allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, if 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.
if you have proof related to bold words, the interim maintenance petition may be rejected otherwise not.
Feel Free to Call
Successfully fighting with 498 (MANAGER) 25 December 2012
Details of my maintenance case as follows
Allegation on petition
Reply on counter petition
Necked away from Home
Travelled by Air, Air ticket booked by me
she was harassed by 10 of my family Numbers (She was filled 498a case on 10 numbers)
7 numbers are deleted during charge sheet
10 Lacs rupees as dowry
I Showed my marriage loan in HDFC Bank
I am Unable to maintain my self
She was a post graduate
she was complete neglected by me
I Showed my phone call list, where more than 70 calls from my mobile to her mobile. Only one incoming call from her mobile
He was not accepted me to enter his home
I showed return ticket, Email Print out
Based on above scenario judge rejected her interim maintenance petition.
Final maintenance case is going on.
Munirathnam (Scientist) 27 December 2012
file application U/s 340 of CrPC read with Section 195 of CrPC for lying in court.
Also file application U/s 91 of CrPC seeking documents in supor tof your case to prove her statements as false. WISH YOU GOOD LUCK.
Munirathnam (Scientist) 27 December 2012
If she is working in Bank then file application U/s 91 of CrPC in CrPC-125 maintenance case to summon the Bank Manager to produce documents on court.
Or file application U/s 91 of CrPC in CrPC-125 maintenance case to to summon the TAX Department to produce TAX assesment made by lady.
In any civil case also you can file this kinf of application but section is different.
Nitish Banka (lawyer) 07 January 2018
Smt. Mamta Jaiswal vs Rajesh Jaiswal 2000 (4) MPHT 457 spouse who is well qualified to get the service immediately with less efforts are not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut pendente life alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose.
In Sanjay Bhardwaj & Ors. vs The State & Anr. wherein while considering the provisions relating to maintenance under The Protection of Women from Domestic Violence Act, 2005 (D.V. Act) and other prevalent laws like Hindu Adoption and Maintenance Act, 1956; Hindu Marriage Act, 1956 and Section 125 of Criminal Procedure Code (Cr.P.C.), it was held that, “a husband is supposed to maintain his un- earning spouse out of the income which he earns. No law provides that a husband must maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell ask husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both claimed to be gainfully employed before marriage”.
In Sakarben Shambhubhai Rabari & vs Shambhubhai MasharubhaiRabari while fixing the quantum of maintenance, the Court has to take into account not only the needs of person who claims maintenance but also the capacity, status, commitments and the obligations of person who has to pay it. If the husband has to maintain other persons like his parents, etc. reasonable allowance for their maintenance shall have to be made. It would be unjust to grant maintenance in an arbitrary manner. The party who has to pay maintenance is also not to be virtually rendered a destitute. A fair balancing of all the relevant factors is to be done by the Courts without making an emotional approach to the problem. The court shall have to keep in mind that what is to be provided is the
maintenance and it cannot have saving element in it nor is it the purpose of the legislature to put the claimant in a luxurious position. The definition of maintenance given by the Act makes this position amply clear.
By-: Advocate Nitish Banka