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guestneedhelp (home)     09 June 2011

CRPC 125

Dear Sir,

We got seperated in 2008 by mutual consent divorce.We have a son of 6 yrs old from our wedlock.My ex husband earns around20 lakhs per annum( i have proof).From date of  filing the divorce he has not paid any maintenance to me.He only sends  Rs3500/ pm for my son.Iam a commerce graduate have no source of income.Iam homebound and look after my son who is now only solace in my life.Iam dependent on my pensioner mother.If I go for job at age of 30+ my son will be neglected.Now i want to file an application under CRPC 125.

Kindly can you please answer to my doubts /questions :-

1.How much my son & myself are entitled to receive as maintenance if my ex husband earns 20 lakhs per annum?

2. How much will i get as interim maintenance?

3. Whether his liabilities like loan/EMI /unmarried sister will be considered into account?



Learning

 9 Replies

jayaselan j k (all in all advocate)     09 June 2011

halo mam

u better file an application under section 125 crpc. further u got the right of maintenance also. more over u should keep it in mind at what grounds u obtained mutual consent divorce, why u have not decided about ur maintenance in that consent petition were all to be taken inot accout. any how u have rihgt to file pwtition under section 125 crpc and u can claim 75 percent of his income irrelelant of ur husbands liability. he is duty bound to maintain u and ur son. pls consult a lawyer for futher advise.

Saurabh..V (Law Consultant)     09 June 2011

@rupali

 

The presumption that you can claim 75% out of your husband's income is fallacious. There is not such rule or law which would rob a person and make another rich.

 

Having said this, I would like to add that you have a right to place yourself at a position where you would have been, if the divorce would not had happened. Also, mutual divorce was taken, so certainly, the agreed terms in that application would be important while filing for maintenance.

 

A woman before or after divorce has the right to be maintained by her husband. If she remarries, she looses this right on first husband. Your case is clear that you have proof of your husband earning 20L p.a. So certainly a decent sum (approx. 5L p.a.) could be awarded for you and your child. This sum is dependent on the spendings of your husband like insurance amount, house rent, home loan and other similar unavoidable expenditure.

 

//peace

/Saurabh.V

Adv. Chandrasekhar (Advocate)     09 June 2011

It is well settled, as held by Hon'ble Supreme Court in Vanamala Vs. H.M. Ranganatha Bhatta 1995(5) SCC 299, that a wife who obtains divorce by mutual consent cannot be denied maintenance by virtue of section 125 (4) of the code.  If the marriage between the parties is terminated by a decree of consent divorce, that would not amount to live separately by mutual consent.  The claim of maintenance under section 125 of the code by a divorced wife is based on the foundation provided under explanation (b) to sub-section (1) of section 125 of the code.  If the divorced wife is unable to maintain herself, and if she has not re-married, she jwill be entitled to claim maintenance allowance.  A woman after divorce became a destitute.  If she is not able to maintain herself and remain unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her.

In the judgement, the maintenance of Rs.500/- per month was provided to the wife, as that was the ceiling at that time.  Later on the provision has been amended and now there is no ceiling.  you are, therefore, entitled to the amount prevailing in these days. 

Comparing to his annual income, the maintenance he is providing to your child is pea nuts.  You have to file application under Section 125 for yourself and as well as for your child.  The total amount of monthly maintenance for both of you comes to about 1/3rd of his monthly earnings.  While calculating his monthly earnings, his statutory deductions and necessary load deductions will be taken into consideration and not sister's marriage liability.  The quantum of interim relief depends upon the documentary evidence you can place on record about his monthly/yearly earnings.

Arup (UNEMPLOYED)     09 June 2011

We got seperated in 2008 by mutual consent divorce.

 

---   why are you raising the question of maintenance, after mcd?

you should raise it at or before mcd.

 

He only sends  Rs3500/ pm for my son

 

---   is this amount you getting according to mcd arrangement?

if so, you may file petition for raising the amount.

Arup (UNEMPLOYED)     09 June 2011

Now i want to file an application under CRPC 125.

Kindly can you please answer to my doubts /questions :-

1.How much my son & myself are entitled to receive as maintenance if my ex husband earns 20 lakhs per annum?

2. How much will i get as interim maintenance?

3. Whether his liabilities like loan/EMI /unmarried sister will be considered into account?

--- these are not possible now, as you are divorcee.

Advocate M.Bhadra   09 June 2011

It is needed to read over the Petition on Mutual Consent as well as Order and Decree of Court.You may file another petition of Maintenance Allowance for  yourself and your child ,quantum of Maintenance Allowance which Court may considered as one- third of income on sufficent proof.

Nirupom Dutta (advocate)     09 June 2011

Section 127 subsection 2 of Cr P C provides that civil courts order is binding upon criminal court. so it is needed to read over the mutual drivorce petition and decree of court , terms of the petion and allowance before advising you any thing.

guestneedhelp (home)     09 June 2011

thanks to all who have contributed to my post.

KAUSIK MUKHERJEE (SELF)     20 June 2011

pl  tell me from when                    there is no celing of mentenance 


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