Admissibility of Modification of Order
Arawind
(Querist) 12 August 2017
This query is : Resolved
Wife is in receipt of maintenance of ₹10,000/- P.M. which is granted by Department of Husband out of his pay as Husband was govt. Employee and the maintenance grant is as per rules of the department which is independent of any court proceedings. While in receipt of said maintenance, Wife files an interim application in DVC seeking right of residence or provide alternative accommodation or pay ₹6000/- P.M for SHELTER / rent under Sec. 19 of PWDVA. Court allows her petition & grants additional ₹ 6000/- as for alternative accommodation stating that amount granted by Department is MAINTENANCE & there is no amount granted towards provision of SHELTER. The order was challenged in sessions court & got dismissed confirming lower court order. Later, Husband retires, accordingly the maintenance grant to wife gets ceased as he is no more a employee of the department. Now, wife files another interim application in her DVC in the lower court under section 25(2) of PWDVA to modify the order passed earlier as ₹6000/- per month + right of residence in shared house hold which is property of Father in law stating that in her earlier application, the relief sought was right of residence+₹6000/ per month which was left out due to oversight & typographical mistake where word "or" was incorporated between right of residence & ₹6000/-, she has no source of income, maintenance grant is ceased by Department & change in circumstances that Husband is living with his parents after retirement in the said property which is inherited. She also files a separate suite claiming 50% share of the retirement benefits received by Husband & further files another Interim Application for Maintenance under section 24 of HMA in DIVORCE case.
Now, my query is whether application for modification of order maintainable where said order has been challenged by Husband in sessions court & sessions confirms the lower court order? Is there any time frame to file such application where lower court order was passed in Aug 2016 & Session Court confirms the order in Feb 2017. This application is filed in July 2017 having clear gap of 6 Months + 5 Months i.e. in total of 11 months from date of initial order by lower court & Husband is paying the same without any Arrears.
Can she claim retirement benefits as such by filing a separate suit when divorce proceedings are pending in family court & if so then the amounts granted as such shall b counted as alimony or permanent maintenance or anything else?
Ms.Usha Kapoor
(Expert) 12 August 2017
She can not claim any amount from retirement benefit if you pay regular maintenance allowance. Court can attach of retirement benefit if you default in pay maintenance.
Ms.Usha Kapoor
(Expert) 12 August 2017
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Guest
(Expert) 12 August 2017
Whatever relief you want, you can get through the court of law. Department cannot change its rules to accommodate your individual request, if maintenance granted under the provisions of any rule.
P. Venu
(Expert) 12 August 2017
The story is less than convincing.
Kumar Doab
(Expert) 12 August 2017
Apparently Dept. has been paying till employer-employee relation existed, and husband is paying awarded amounts......
So there seems to be NO reason to attach...
Rajendra K Goyal
(Expert) 12 August 2017
The case is , in the court, your lawyer is there to look after your interest there. You have no alternate but to oppose all her demands / revision / amendment requests.
Court may not give her 50% share in retirement proceeds. Your father may prey to the court that the property belong to him and she may not be allowed to live there considering his age and difficulties.
Kumar Doab
(Expert) 12 August 2017
The husband can also find rented accommodation................
If DIL/Son are disturbing peaceful living of aged FIL/Father, he may contemplate to evict under:
Maintenance and Welfare of Senior Citizens (MWPSC) Act, 2007
http://socialjustice.nic.in/writereaddata/UploadFile/Annexure-X635996104030434742.pdf
Kumar Doab
(Expert) 12 August 2017
Same Query:
http://www.lawyersclubindia.com/forum/details.asp?mod_id=152817&offset=1
Rajendra K Goyal
(Expert) 12 August 2017
Sorry, it was a repeated query.
Why to repeat.
If not satisfied with the replies in this section, should contact local lawyer for detailed discussion / guidance.
Kumar Doab
(Expert) 12 August 2017
You indeed, need to consult a senior very able counsel as already suggested in this and other threads, initiated by you.
R.K Nanda
(Expert) 13 August 2017
no reply to repeated query.
Kumar Doab
(Expert) 13 August 2017
Without any hesitation lean on a very able LOCAL counsel as already suggested and ASAP.
Avoid giving space and time to DIL and family to bring restrictive orders from court.
