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Sudha (Executive)     14 September 2017

Maintenance/interim maintenance even if divorce is withdrawn

Dear Experts,

I had filed for divorce 5 years ago along with Interim Maintenance for only my son and not for me as am working.  Simultaneously I have filed for DV & 498a after 2 years of filing divorce as my 50 lacs streedhan (all in cheques for purchase of house)is also with my husband. I have discoved my husband has remarried some other lady and has begotten a daughter, proofs already exhibited in DV & 498s cases.  My questions are

1. Can I withdraw my divorce petition?

2.  There is interim maintenance granted both in the Family Court and under DV but the amount is miniscule. Will the Interim maintenance for my child be stopped if I withdraw my divorce petition in the family court? 

3. Can I still continue getting maintenance for my minor son both in the family court and under DV? 

Please help with your expert comments because this man has left me in distress and enjoying life with his keep who is now is illegal wife and we are left to live popper's life.  I want to see this man and his mother behind bars for ever.

Please guide. 

 

 

 



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 6 Replies

Sachin (N.A)     14 September 2017

If you withdraw, your both cases the maintenance will be stopped as maintenance is interim and not final.  If you want maintenance only you can file 125 CrPC,

Or

Alternatively you can mutually settle the matter with your husband.

vinayak pandya   15 September 2017

Hello sir My wife filed two cases against me. Under section 125 And under the Domestic Violin. And the order is made. Under section 125 of the month, 3000 and under Domestic Violin section 2000, will I have to pay both of them now?

Sachin (N.A)     15 September 2017

Originally posted by : vinayak pandya
Hello sir
My wife filed two cases against me. Under section 125 And under the Domestic Violin. And the order is made. Under section 125 of the month, 3000 and under Domestic Violin section 2000, will I have to pay both of them now?

Why both courts ordered maintenance anount ?  Why didn't you inform the court that other court has already granted the maintenance?

Now, file an application to merge both the amounts.

Adv Radhika Mehta (Advocate)     15 September 2017

Originally posted by : Sudha

Dear Experts,

I had filed for divorce 5 years ago along with Interim Maintenance for only my son and not for me as am working.  Simultaneously I have filed for DV & 498a after 2 years of filing divorce as my 50 lacs streedhan (all in cheques for purchase of house)is also with my husband. I have discoved my husband has remarried some other lady and has begotten a daughter, proofs already exhibited in DV & 498s cases.  My questions are

1. Can I withdraw my divorce petition?

You have mentioned that you had filed for Divorce 5 years back. That means your Divorce hearing must be at an advanced stage.  Yes you can withdraw your Divorce Petition but the Court may impose certain costs on you.  

2.  There is interim maintenance granted both in the Family Court and under DV but the amount is miniscule. Will the Interim maintenance for my child be stopped if I withdraw my divorce petition in the family court?

Yes it will be discontinued.  

3. Can I still continue getting maintenance for my minor son both in the family court and under DV?

Not if you withdraw.  You can however file separately for maintenance. 

Please help with your expert comments because this man has left me in distress and enjoying life with his keep who is now is illegal wife and we are left to live popper's life.  I want to see this man and his mother behind bars for ever.

Why dont you initiate criminal proceedings against him for Bigamy?

Please guide. 

 

 

 

 

Adv Radhika Mehta (Advocate)     15 September 2017

Originally posted by : vinayak pandya

Hello sir
My wife filed two cases against me. Under section 125 And under the Domestic Violin. And the order is made. Under section 125 of the month, 3000 and under Domestic Violin section 2000, will I have to pay both of them now?

Yes, you will have to pay both the amounts.  If the amount awarded under one proceeding was not within the knowledge of the judge passing the other order, you can always file a Review.

 

Nitish Banka (lawyer)     07 January 2018

Interim Maintenance Arguments important judgments

If you are from the Husband side and your wife is capable of earning and having good qualifications and if you are unemployed then how will you defend the interim maintenance case  filed by wife.

Here are the few judgments which you must use to fight interim maintenance cases  these judgments are handy.

Image result for interim maintenance

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

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