Naresh (In search of job) 07 January 2011

Can the maintenance awarded based on the prior earnings?

Dear sir,

I have filed for divorce based on cruelty 13(1)(1-a) from my wife in family court in 2007 on the basis of non-consummation and abusive language.

In her counter, she claimed I'm impotent and wanted divorce on her terms and conditions.She also filed for maintenance u/s 18 HMA and interim u/s 24 HMA.

In my divorce case, I being the petitioner was cross examined this month after several years of filing the case. In the cross-examination, the opposite lawyer mostly concentrated on my earnings, thought it being a divorce case!!!

It has been one year, since I'm not working now, and I'm pursuing my MBA degree now and told the same in the cross examination.

To one of the question, I replied that till march, 2010 I have paid income tax, but not continuously working all the years. But, the current position is I'm not working and pursuing further studies.

My questions are:

(1) As already questions were asked related to my earnings/income, will there be another cross examination, in the maintenance case filed by her? or judge can decide both the matters with this cross examination only?

(2) Can the maintenance be awarded based on my prior earnings? As I told I have filed income tax, even if they get them, will it be any useful to them? since, currently I'm studying?

(3) Can they file any more maintenance cases on me? Currently, the only cases are divorce and maintenance case, but no 498a, DV etc.

Regards,

Naresh

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3 Replies

Bhawani Mahapatra (Law Officer) 07 January 2011

Dear Naresh

The quantum of maintenance to be awarded is decided basically upon the earning at present of the o.p., which can also be revised/altered by the same court through an applicaton by the agrieved. While deciding the maintenance, future or past income are not considered. So you can present before the court the facts lies with you regarding your furute income.

Saurabh..V (Law Consultant) 07 January 2011

@Naresh

Q.(1) As already questions were asked related to my earnings/income, will there be another cross examination, in the maintenance case filed by her? or judge can decide both the matters with this cross examination only?

A.(1) In seperate cases, cross-examination is done seperately. However, answeres given in prior diposition could be shown if you are deviating in new diposition. If your case is true you only need to speak truth in similar manner and need not worry on this issue.

Q.(2) Can the maintenance be awarded based on my prior earnings? As I told I have filed income tax, even if they get them, will it be any useful to them? since, currently I'm studying?

A.(2) Award of maintenance amount is based on ur present situation. Your present situation would be seen to calculate the maintenance amount irrespective of your affluent or poor past. For example, if suppose you used to earn 50L per month earlier but due to debt you have lost everything and now dependent on 5K per month, then maintenance would be accordig to 5K and not 50L. It is always a realistic amount for both the parties. Any deviation in realistic amounts would be liable to be altered or quashed by higher courts.

Q.(3) Can they file any more maintenance cases on me? Currently, the only cases are divorce and maintenance case, but no 498a, DV etc.

A.(3) Once a case on maintenance has already been moved, there is no option left for any alternative. Your wife is already seeking maintenance which would suffice her purpose. Its good that you are out of the hassels of 498A / DV Act as otherwise, this would have been more pain as against maintenance.

//peace

/Saurabh.V

Naresh (In search of job) 07 January 2011

Thank you Surabh sir and mahapatra sir,

As said before, wife filed maintenance case in july 2009, for which I had filed counter in june 2010, since then only a new date is given at each appearance (the dates for divorce and maintenance are given on the same future date) and no progress is made and there is progress only on the divorce case, currently in the cross examination stage.

Q(4): Is there any rule that main maintenance case filed u/s 18 HAMA will progress only after the decision on divorce case ? or can they progress independently?

Q(5) If they progress independently, how can I press them to submit the chief affidavit, evidence and then to cross stage? The last date I asked judge to order the other party to file chief affidavit for which judge didn't respond positively, simply rejecting my plea!!! It looks like they can delay the maintenance case till as long as they get the solid proof doesn't matter how much time they take. Is it acceptable, as the respondent do I have some say to speed up the trial?

Regards

Naresh