LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Shekhar Chourasiya (Proprietor)     18 July 2015

Wife filing it returns can claim for maintenance

My younger brothers wife filed DV & Maintenance at Mumbai court and one case of nullity of marriage pending at Indore court, She has filed petition before Supreme Court for transfer of nullity of marriage petition from Indore to Mumbai.

She has given false information to Supreme court that she is house wife, however she is filing IT returns, my brother tried to get certified copy IT returns but she objected to income tax officer from giving information.

Can she claim for maintenance ?  as -  

1.)  she is filing IT returns and working with some private banks / institution ? , 

2.)  As nullity of marriage petition is pending before Family Court, Indore, can she claim for maintenance ? (she got married without divorce from her first marriage, she accepted in counselling at Indore court)

PLEASE PROVIDE SUITABLE CITATION

For giving wrong information before Supreme Court and Mumbai court can we move any legal steps ?



Learning

 8 Replies

ADVOCATE DIMPLE JINDAL (Advocate)     18 July 2015

1. under the hindu marriage act 1955 section -5

Condition for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) neither party has a spouse living at the time of the marriage;

So the marriage with out  nullifying the first marriage is void. 

Moreover by marrying second time, she have lost her right to maintaince. Because under the act, a divorcee seeking women can demand for maintaince untill she gets remarriage.   

2. sec -25 of HMA 1955. Permanent alimony and maintenance.-(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purposes by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immoveable property of the respondent. (2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3) If the Court is satisfied that the party in whose favour an order has been made under this Section has re-married or, if such party is the wife, that she has not remained chaste or if such party is the husband, that he has had s*xual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

3. You can give your statements in the court regarding the it returns filled by your brother's wife. The court will examine everything. No one can hide this truth.

SAINATH DEVALLA (LEGAL CONSULTANT)     18 July 2015

 

GO THROUGH THIS JUDGEMENT:

Delhi HC- Maintenance rejected as the Woman is well qualified, employed earlier and quited the job on her own will.

CRL.REV.P. 344/2011 Page 1 of 8
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RESERVED ON : 19.04.2012
PRONOUNCED ON: 14.05.2012
+ CRL.REV.P. 344/2011
DAMANREET KAUR ….. Petitioner
Through: Mr.Sugam Puri, Advocate
versus
INDERMEET JUNEJA & ANR ….. Respondents
Through: Mr.Shyam Moorjani with
Mr.Taru Goomber, Mr.Pankaj Mendiratta
and Mr. Gaurav Goswami, Advocates.
CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI
%
1. The petitioner has preferred this revision petition
impugning the order dated 01.06.2011 passed by the learned
Addl. Sessions Judge, Delhi. The petitioner is wife of respondent
Indermeet Juneja. She filed a complaint case bearing No.352/3
under Section 12 of Protection of Women from Domestic
Violence Act, 2005 alongwith an application for monetary relief
under Section 23 of the Act. Her prayer for interim monetary
relief was declined vide order dated 18.11.2010 by the learned
M.M.
2. Feeling aggrieved, she preferred an appeal against the
said order passed by the learned M.M. declining monetary relief
to her. In appeal, the learned ASJ vide the impugned order CRL.REV.P. 344/2011 Page 2 of 8
dated 01.06.2011 though declined the prayer of interim
monetary relief to the petitioner, partly allowed the appeal and
directed the respondent to pay a sum of Rs.10,000/- per month
from the date of filing of the petition towards contribution of
the respondent to maintain the child born out of the wedlock of
the parties.
3. The grievance of the petitioner is that the learned ASJ
committed an error in declining the relief to her on the ground
that she was well qualified, capable to maintain herself and
had the capacity to work and that she had also been actually
earning in the past and was thus not entitled to get any
maintenance from the respondent. The petitioner has
submitted that earlier she was working with Met Life Insurance
Company since the birth of her child. The company due to its
relocation process had asked the petitioner to shift to
Bangalore. She could not accept this offer as it would not be
appropriate for the child to be uprooted from the place where
she has been residing and due to the fact that there were
visitation orders passed by the learned Sessions Court and had
the petitioner along with the child shifted to Bangalore, the said
orders could not have been complied with. As such the
petitioner turned down the offer of the company. The company
refused to change its policy and the petitioner was forced to
resign from her job.
4. The relieving letter placed on record by the petitioner is
dated 17.08.2010. As per this relieving letter the date of joining CRL.REV.P. 344/2011 Page 3 of 8
of the petitioner with Met Life was 07.01.2008 and her
designation at the time of leaving the company was Assistant
Manager (Service Delivery). She has been relieved pursuant to
her resignation letter dated 17.06.2010. This letter is not
accompanied by the resignation letter of the petitioner giving
the reasons for her resignation or the policy of the company to
shift her to Bangalore. It is relevant to mention here that while
the date of joining of petitioner with Met Life Insurance is
07.01.2008, the petitioner has given birth to a female child on
18.09.2008 i.e. in the same year and despite having infant
child to take care, she has served the company till she was
relieved on 17.08.2010.
5. The contention of petitioner is that in order to comply
with the order of the Court to allow the respondent to have
visitation right she could not shift to Bangalore. There is
nothing on record to indicate that at any point of time despite
continuous litigation going on between the parties she had
approached the Court for modification of the order regarding
visitation right. If the petitioner of her own prefers to resign,
she cannot take shelter under the Court order regarding
visitation right. With the passage of time the child has grown
up and is of school going age. Thus, it is more convenient for a
working mother to be in the job then to sit at home.
6. The learned ASJ has rightly declined the interim monetary
relief to the petitioner by holding that she was well educated
lady earning Rs.50,000/- per month and had chosen not to CRL.REV.P. 344/2011 Page 4 of 8
work of her own will though had the capacity to work and find a
suitable job for herself.
7. The learned ASJ in the impugned order has also corrected
the error appearing in the order of learned M.M declining the
monetary relief to the child for the reason that she was not the
petitioner before the Court. In para-10 of the impugned order,
the learned ASJ, after considering the facts and relevant case
law has concluded as under:-
“10. On perusal of record and after hearing the
submissions made at bar, I do not find any infirmity in the
impugned order as regards maintenance to the
appellant/wife is concerned. The question, whether
appellant/wife was forced to resign or she had resigned
herself is a question to be considered by the court during
trial and also the question whether the reasons given by
her for resigning were satisfactory or not. These are the
question to be gone into during evidence by the Learned
Trial Court. But, the observation of the Learned Trial Court
in para-10 i.e. “As far as the maintenance of the child is
concerned, since she is not the petitioner in the present
complaint, I would not be able to pass any orders as
regards the maintenance for the daughter of the parties”,
is erroneous and cannot be sustained. Admittedly on the
date, when application u/s. 12 of the „act‟ was filed by the
appellant/wife, child was in the custody of the husband.
Secondly, if the scheme of the act is seen as a whole, it is
obvious that it is not necessary that the child should be
impleaded as a party. Relief can be granted to the child or
for the benefit of the child without child being impleaded
as a party. The relief can be granted not only to the
aggrieved person, but also to the „child‟. On reading of
Section 20 and 21 of the „Act‟ it is clear that not only
aggrieved person, but any child or children may be
granted relief. The court has to keep in mind the interest
and the welfare of the child, even if child is not a party.
Therefore, orders as regard custody or the maintenance or
the welfare of the „children‟ can be passed even if child is CRL.REV.P. 344/2011 Page 5 of 8
not a party in the application filed under the „Act‟ before
Learned Metropolitan Magistrate. There is manifest error
in the impugned order as regards the observations in
para-10 of the impugned order, which is set aside. In view
of this, it is directed that Learned Trial Court shall decide
the quantum of maintenance for the minor daughter of
the parties after making a realistic assessment of the
needs of child, keeping in view the status of parties, on
the basis of material placed on record by the parties.
Respondent/husband submitted that he was ready and
willing to bear 50% of expenditure of the child. He can
show his bonafide by providing some assistance to the
child so that the child is brought up in an appropriate
atmosphere and so that she is provided with minimum
comfort, which the child requires.
11. In the circumstances, till further orders are passed by
the Learned Trial Court, I deem it expedient in the interest
of justice to direct the respondent/husband to pay sum of
Rs.10,000/- per month towards his contribution from the
date of filing of the petition to maintain the child. The
amount ordered to be paid by respondent/husband shall
not tantamount to be an expression on merits of the case.
Appeal stands disposed of accordingly. TCR be sent back
alongwith copy of this order. File be consigned to Record
Room.”
8. In Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3)
MPLJ 100, the High Court of Madhya Pradesh while dealing
with identical situation observed that well qualified spouses
desirous of remaining idle, not making efforts for the purpose
of finding out a source of livelihood, have to be discouraged, if
the society wants to progress. For better appreciation, relevant
paragraphs of the said decision are reproduced hereunder:-
“In view of this, the question arises, as to in what way
Section 24 of the Act has to be interpreted. Whether a
spouse who has capacity of earning but chooses to remain
idle, should be permitted to saddle other spouse with his CRL.REV.P. 344/2011 Page 6 of 8
or her expenditure? Whether such spouse should be
permitted to get pendent lite alimony at higher rate from
other spouse in such condition? According to me, Section
24 has been enacted for the purpose of providing a
monetary assistance to such spouse who is incapable of
supporting himself or herself inspite of sincere efforts
made by him or herself. A spouse who is well qualified to
get the service immediately with less efforts is 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 in the nature of pendent lite 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 the present case Mamta
Jaiswal is a well qualified woman possessing qualification
like M.Sc. M.C M.Ed. Till 1994 she was serving in
Gulamnabi Azad Education College. It impliedly means
that she was possessing sufficient experience. How such
a lady can remain without service? It really put a big
question which is to be answered by Mamta Jaiswal with
sufficient cogent and believable evidence by proving that
in spite of sufficient efforts made by her, she was not able
to get service and, therefore, she is unable to support
herself. A lady who is fighting matrimonial petition filed for
divorce, cannot be permitted to sit idle and to put her
burden on the husband for demanding pendente lite
alimony from him during pendency of such matrimonial
petition. Section 24 is not meant for creating an army of
such idle persons who would be sitting idle waiting for a
„dole‟ to be awarded by her husband who has got a
grievance against her and who has gone to the Court for
seeking a relief against her. The case may be vice versa
also. If a husband well qualified, sufficient enough to earn,
sit idle and puts his burden on the wife and waits for a
‟dole‟ to be awarded by remaining entangled in litigation.
That is also not permissible. The law does not help
indolents as well idles so also does not want an army of
self made lazy idles. Everyone has to earn for the purpose
of maintenance of himself or herself, at least, has to make
sincere efforts in that direction. If this criteria is not
applied, if this attitude is not adopted, there would be a CRL.REV.P. 344/2011 Page 7 of 8
tendency growing amongst such litigants to prolong such
litigation and to milk out the adversary who happens to be
a spouse, once dear but far away after an emerging of
litigation. If such army is permitted to remain in existence,
there would be no sincere efforts of amicable settlements
because the lazy spouse would be very happy to fight and
frustrate the efforts of amicable settlement because he
would be reaping the money in the nature of pendent lite
alimony, and would prefer to be happy in remaining idle
and not bothering himself or herself for any activity to
support and maintain himself or herself. That cannot be
treated to be aim, goal of Section 24. It is indirectly
against healthiness of the society. It has enacted for
needy persons who in spite of sincere efforts and
sufficient effort are unable to support and maintain
themselves and are required to fight out the litigation
jeopardizing their hard earned income by toiling working
hours.
In the present case, wife Mamta Jaiswal, has been
awarded Rs.800/- per month as pendent lite alimony and
has been awarded the relief of being reimbursed from
husband whenever she makes up a trip to Indore from
Pusad, Distt. Yeotmal for attending Matrimonial Court for
date of hearing. She is well qualified woman once upon
time obviously serving as lecturer in Education College.
How she can be equated with a gullible woman of village?
Needless to point out that a woman who is educated
herself with Master‟s degree in Science, Masters Degree in
Education, would not feel herself alone in travelling from
Pusad to Indore, when at least a bus service is available as
mode of transport. The submission made on behalf of
Mamta, the wife, is not palatable and digestible. This
smells of oblique intention of putting extra financial
burden on the husband. Such attempts are to be
discouraged.”
9. Section 20 (1) (d) of PWDV Act, 2005 specifies that upon
appropriate proof, the court may order the respondent to pay
maintenance to the aggrieved person and to her children and CRL.REV.P. 344/2011 Page 8 of 8
further permits the Court to pass an order of maintenance
under the PWDVA in addition to maintenance already granted
under section 125 Cr.P.C.
10. In State of Maharashtra vs. Sujay Mangesh
Poyarekar (2008) 9 SCC 475 it was held that powers of the
revisional courts are very limited and the revisional court
should not interfere unless there is a jurisdictional error or an
error of law is noticed.
11. The learned ASJ in the impugned order has rightly
observed that the question whether the petitioner-wife was
forced to resign or had resigned herself is a question to be
considered during trial and also the question whether the
reasons given by her for resigning from her job were
satisfactory or not.
12. It is worth mentioning here that the child for which
maintenance of Rs.10,000/- per month from the date of filing of
the petition has been ordered by Learned Addl. Sessions Judge
is just and fair and sufficient to meet the requirements of a
child which is aged about 3 ½ years.
13. There is no jurisdictional error or error in law in the
impugned order. The petition being devoid of merit is hereby
dismissed with no order as to costs.
(PRATIBHA RANI)
JUDGE
MAY 14, 2012/„dc‟

FAMILY COURT REJECTS IM FOR A WELL EDUCATED WOMAN:

A family court has refused to grant interim maintenance to a well-educated woman who had suppressed vital information regarding her employment.

Laxmi Rao, principal judge of the family court, rejected the application which sought Rs60,000 per month as maintenance and another Rs75,000 to cover litigation expenses.

The judge observed, “Upon considering the rival contentions, admittedly the wife is an engineering graduate. She resigned her job for better prospects and joined the course of CDAC for six months in 2014. She has suppressed the fact as to whether she has rejoined the same job or has got a better job after her said CDAC course.”

 

The husband had filed a petition seeking annulment of the marriage. The couple got married on December 26, 2013. He claimed that his wife left her matrimonial home on September 4, 2014 and started living with her mother in Chembur.

The woman was working as a consultant with a private firm in Dadar till June 30, 2014, after which she joined the CDAC course.

However, she claimed that she was currently unemployed and lacked sufficient independent income. In addition, she said, her father was no more, making it difficult for her to support her mother, herself and four other sisters.

She claimed in her application that her husband was a B.E. (Chemical) and had been working at a private firm in Chandivli as a Senior Engineer for more than 16 years now. His salary was Rs1.5 lakh per month, she claimed, adding, he had a bungalow and a flat in Nagpur from which he earned Rs25,000 in rent.

The man objected to the maintenance claim on several counts. First, he said that she had obtained the consent for marriage by fraud as she had not disclosed that she was undergoing treatment for mental illness from 2010. Second, the marriage was not consummated because of her refusal and so he had filed for divorce. Third, he said his wife left for her parents' home with all her belongings, with an express desire to discontinue with the marriage. He claimed that she had been going to his office regularly and creating a commotion.

Fourth, he furnished information to prove that she had undertaken a software development course and was now working at a salary of Rs25,000. She also had bank deposits from which she got regular income. He further claimed that her mother had a catering business and her sisters were all working.

Lastly, he gave information regarding his salary. His take-home was Rs69,000, out of which he made the following payments: an EMI of Rs39,000, Rs2,500 each towards maintenance, electricity and telephone bills, and Rs10,000 per month towards medical expenses of his parents.

Opposing her plea for litigation costs, the husband said she had hired a private lawyer when she could have availed herself of free legal aid, proving that she had sufficient income to bear the litigation expenses.

Thus, rejecting the woman's application for maintenance costs, the judge observed, “Moreover, the petition has been filed for nullity. Hence, in my considered view, interim maintenance need not be granted to the respondent-wife for the aforesaid reasons.”

Further, the judge also rejected her claim for litigation expenses, saying, “Whatever expenses are incurred by her are to be considered and dealt with at the time of final hearing, if found genuine and necessary. I, therefore, proceed to reject this application.”

 

 
 

 

ADVOCATE DIMPLE JINDAL (Advocate)     19 July 2015

You can proceed for sec 193. Section 193 in The Indian Penal Code 193. Punishment for false evidence.—Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabri­cates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either descripttion for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either de­scripttion for a term which may extend to three years, and shall also be liable to fine. Explanation 1.—A trial before a Court-martial; 1[***] is a judicial proceeding. Explanation 2.—An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Illustration A, in an enquiry before a Magistrate for the purpose of ascer­taining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence. Explanation 3.—An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that inves­tigation may not take place before a Court of Justice. Illustration A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding. A has given false evidence.

ADVOCATE DIMPLE JINDAL (Advocate)     19 July 2015

For legal assistance, you can take public prosecutor. As it is the fundamental right of every citizen to get justice and it is the duty of govt. to give the facility of free legal aid to needy person.

ADVOCATE DIMPLE JINDAL (Advocate)     19 July 2015

if you will prove her second marriage with out divorcee from the first marriage, then you will almost win the case. 1. she will not be entitled to maintenance. 2. You will get the divorcee easily.

ADVOCATE DIMPLE JINDAL (Advocate)     20 July 2015

Your case is a clear cut of Bigamy. 

1. Marriage between "Nitu" and "your brother" is null and void. There will be no issue regarding this matter as Nitu has accepted her first marriage and did not take divorcee before her second marriage. 
  

sec - 17 of Hindu Marriage Act 1955 - Punishment of Bigamy.

1)second marriage during subsistence of earlier marriage is null and void . Section 17 HMA says that any marriage between Hindus is void if on the date of such marriage, either party had a husband or wife living. The same is punishable under Section 494 and 495, IPC.

 

Section - 494 of indian penal code

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either descripttion for a term which may extend to seven years, and shall also be liable to fine.

Exception-This section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction,

nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

 

Section 495 of Indian Penal Code

Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either descripttion for a term which may extend to ten years, and shall also be liable to fine.

STATE AMENDMENT

State of Andhra Pradesh Amendment

Punishment-Imprisonment for 10 years and fine-Cognizable-Non-bailable-Triable by Magistrate of the first class-Non-compoundable.

[Vide A.P. Act 3 of 1992 Section 2 (w.e.f. 15-2-1992].

 

Both offences are non- bailable and cognizable. There is a provision for 7 years punishment under sec 494 and 10 years punishment under sec 495. 

 

2. Case of Divorcee and Maintenance by Nitu

As the marriage between Nitu and your Brother is null and void from the very first day of their marriage, there is no question arises for the divorcee. The Court will make decree for the declaration of void of marriage and not for the divorcee. Dont's confuse between divorcee and void marriage. Divorcee will happen only after the marriage happened. If these is no legal marriage or the marriage is null and void, then divorcee order can not issued by the court. If the court will do so with out of knowledge of facts, it will be a greater mistake in the eyes of law. 

As the situation of divorcee is not applicable in your case, the case of maintenance is also not applicable and hence no issue will be raised in this regard. The reason behind this is that there is not any legal wed lock between Nitu and your brother and hence your brother have not any legal duty towards Nitu.

Moreover you can prosecute her for the offence of making wrong prosecution upon your brother for the divorcee and maintenance. But it will happen at later stage. 

Now you should fight your whole case on the law point of her first marriage with Dayashankar. 

Asif Khan   25 July 2015

Question: Performance of Second Marriage while case of first wife running in the Courts :I want to know that When muslim woman filed the cases against husband and his family members 498 case (CASES filed due to harrassment of husband, father-in-law mentally and physically  made a women made servant husband use to work long distance, never used to come to meet wife right from marriage, tortured without sending the wife to parental house and also without making to talk with parents of wife, on asking to husband by wife just he use to reply that married for the purpose of parents not for himself after awaiting for long time she filed a case) DV Act Case, MC Case while the case are running in the court. husband peformed second marriage under Mohammedan Law. Section 494 is attracted or any other section for filing case in criminal act. Conjugal rights case is at counter stage but without filing counter and married another woman by concealing the facts of first marriage to the Khazi and Wakf board.  First wife collected the marriage certificate from Wakf Board then which type of case to be filed? What to be done against the husband? Section 494 is attract or not, if attracts please tell me some judgements if you have. If any othe section please tell me the sections.

SAINATH DEVALLA (LEGAL CONSULTANT)     25 July 2015

The second marriage is void either by muslim law or special marriage act.I presume he has not declared talaq,but as the criminal case is pending in the court, he cannot go for another marriage.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Related Threads


Loading
Start a New Discussion Unreplied Threads


Post a Suggestion for LCI Team
Post a Legal Query