Divorse case staged at bahas (stuck on deciding compensation)
Guest
(Querist) 28 August 2011
This query is : Resolved
sir/madam,
i need some advise from this forum.
just to let you know, that i am victim of false 498a, later i have filed (jan 2011) div case on her on which my wife has accepted to have the div (means it became mutual from being contested one earlier), the stage of case is on 'BAHAS' of the advocates and the only disargument is on the compensation.
she has demanded 40lac rs, while i have no job (infact i have lost my job due to this case thing) in hand. in her WRITTEN BAHAS (yesterday in court) she has asked 1/2 share in my property, technically i dont have any immovable/movable property in my name, the only thing that i have is some bank accounts and investments - which are not in knowledge to her. sir, i am alone son of my widow mother who owns a house, pls advise what should be my stand when i have to counter her WRITTEN BAHAS in the next court hearing.
i also would like to know, just to save the house (owned by my mother), will a trust or will help us - if so what kind and how.
kindly advise.
kidly note, we have completed 8 years of marriage and have 6 year old son. looking forward to have your kind guidence sir.
thanks.
Devajyoti Barman
(Expert) 28 August 2011
First tell the nature of the suit.
If it is not the case under PWDV Act then the house would not be touched.
Guest
(Querist) 28 August 2011
sir,
the suit is u/s 13b (HMA), the case is staged on BAHAS, divorce is filed by me and accepted by the other party.
the disagreement is on the compensation.
it is not under PWDV, but just to let you know, there is separate case filed by her u/s 498a on me (and i can assure it is 100% false).
looking forward to your kind guidence sir.
thanks.
ajay sethi
(Expert) 28 August 2011
the court while determing amount of alimony a wife will get takes into account husband financial position . you have stated that you do not have nay job . the question of payment of Rs 40 lakhs as lumpsum payment does not arise .
however please note that your wife can call upon you to produce your bank statement of last 3 years .if the court finds that you have substantail savings you may be clalaed upon to pay some amount to your wife . better consult a local lawyer .
if flat is owned by your mother your wife cannot claim share in said property
ajay sethi
(Expert) 28 August 2011
Maintenance of a married woman is her husband’s personal obligation and the property in her mother-in-law’s name can never be the subject matter of the obligation to maintain a daughter-in-law even after the death of her husband, said a Bench comprising Justices S B Sinha and V S Sirpurkar.
A woman lawyer, who had filed several cases against her parents-in-law in Chincholi, Karnataka, had even taken recourse to litigation to see that their property was auctioned for getting the maintenance she was entitled to from their son.
Disapproving the extra-legal arguments taken by her and deprecating the trial court and the Karnataka High Court overstretching the law as well as their jurisdiction to go by her
pleadings, the Bench said a woman could seek attachment of properties only if her husband had a share in it.
This means, if the parents-inlaw’s properties were self-acquired and not inherited, then their daughter-in-law could institute suits seeking attachment of those properties which stood in the name of her husband and not against those owned by his parents.
Referring to the plea of the daughter-in-law, Sonalben, the Bench said she might be entitled to maintenance from her husband and the decree in her suit could only be against his properties.
“The decree, if any, must be executed against her husband and only his properties could be attached for that but not of her mother-in-law,” said Justice Sinha, writing the judgment for the
Bench. Referring to the HC order, which was challenged by mother-in-law Vimlaben, the apex court said it suffered from “total non-application of mind” and was “wholly unsustainable”.
“The said orders might have been passed only on consideration that Sonalben is a harassed lady, but the fact that Vimlaben is also a much harassed lady was lost sight of (by the HC),” the Bench said.
Directing release of the attached properties to Vimlaben, the court directed Sonalben to give Rs 50,000 to her mother-in-law as cost of litigation.
As a general guideline to the trial courts, the Bench said: “Sympathy or sentiment, as is well known, should not allow the court to have any effect in its decision-making process. Sympathy or
sentiment can be invoked only in favour of a person who is entitled to it. It should never be taken into consideration as a result whereof the other side would suffer civil or evil consequences.”
Raj Kumar Makkad
(Expert) 28 August 2011
Nothing remains to be added in detailed reply of sethi.
Devajyoti Barman
(Expert) 28 August 2011
But for that the wife needs to file case under Adoption and Maintenance Act. The court under Marriage Act can not pass such order.
M/s. Y-not legal services
(Expert) 29 August 2011
Yes. Am also agree with mr.barman. The wife's current plea is not legal. Its liable to be dismissed.
Arun Kumar Bhagat
(Expert) 31 August 2011
Permanent alimony can not be decided in mutual divorce. It is a precondition of mutual divorce application that every thing is mutually decided. If there remains something undecided, then the application becomes infructuous and it becomes contested suit.
