If divorce decree is silent on granting of maintenance can it construed that judges have refused
ashutosh
(Querist) 03 April 2014
This query is : Resolved
Dear Experts
Legal points for consideration
Urgently please HELP me with a very tricky situation on the point of whether “NO MAINTENANCE IS PAYABLE TO A WIFE " WHEN the final divorce decree GIVEN by division bench of Justice Oka & S.C.Gupte at Mumbai is SILENT ABOUT any FINAL ALIMONY/ OR MAINTENANCE to be paid to the WIFE in in spite of the fact known & being mentioned in the final Divorce Decree that wife was getting Rs 5000/- interim maintenance in all. The reason of granting divorce was that the bench found the Wife guilty of desertion without any just cause alongwith Animus disserendi proved in this case.
2.When the FINAL decree by division bench itself is silent on the point of maintenance as per Rule 12(1)(c) of Order 20 of cpc can it be said that the Judges have refused to grant any maintenance as the Fault of WIFEs Desertion & clear case of Animus Disserendi was proved.
3. In lieu of the above Divorce Decree ,Whether a pending civil suit u/s 18 (2) of Hindu Adoption & Maintenance Act will survive / is tenable in Law , as Maintenance can only be granted u/s 18 (2) is to a “wife” when the relationship of Husband & wife exists.But due to divorce decree this relationship has come to an end.
4. Whether “Preliminary issue” can be allowed to be framed by the court in the civil suit u/s 18 (2) of Hindu Adoptions & Maintenance act under order 14 rule 2 of cpc . The stage of the civil suit is that it has been already partially heard and is at the stage is of part recording of evidence of Husband &his cross examination.
Facts of the case in brief.
1. Marraige took place in May 1999. First 5 months cohabited with husband .Wife was 3 months pregnant in dec1999. Wife left matrimonial home to Ahmednagar on 14 dec 1999 on pretext of her mother being ill & subsequently deserted company of the Husband. Wife did not return back to matrimonial home in Mumbai. Inspite of several attempts by husband she refused to comeback to Mumbai. Wife gave birth to "still born baby"(dead child) in june 2000.
2.Wife did not return from june 2000 to nov 2000 inspite of many attempts to fetch her back failed. Finally Husband filed RCR in Mumbai bandra court inNov 2000
3.Subsequent to filing of RCR Husband received letter from wife & her family with wild allegations against husband & his family. Hence husband withdrew my RCR case.in March 2001.
4.In the meantime in JAN2001 Wife filed Maintenace u/s 125crpc in Ahmednagar court. Court granted maintenance of 1500 quoting I refused to take her back.
5.In Aug2003 I filed divorce petition in family court at bandra on grounds of desertion & mental cruelty. Divorce petition got dismissed against Husband as Judge termed the instances of desertion and mental cruelty as normal wear and tear of Marraige.
6. During the pendency of Divorce petition Wife had filed for interim maintenance u/s 24 of H.M.A, same was granted & another Rs 1500 was payable total 3000 (was paid 1500 u/s 125 & pendenlite interim maintenance u/s 24 of Rs1500. ).
7. Husband went in appeal in Mumbai High court against this family court dismissal & the Divorce Appeal came to be admitted in Feb2007.
8.While divorce appeal was pending wife once again filed Civil application for maintenance in Aug 2007 which was granted by Mumbai High court & Maintenance was increased to Rs 5000pm .in all. considering earlier two maintenance were granted.
9.In Jan 2008 , the wife while staying apart from the husband filed yet another Civil suit in Ahmednagar u/s 18 (2) of Hindu Adoption and Maintenance Act claiming her right to stay apart & yet receive maintenance, & claimed final maintenance of Rs 45,00,000 & future maintenance of Rs 40000 p.m. In this proceedings the examination & cross examination of wife is over , “examination in chief” is over & cross examination of the husband is to be taken”.
10. Husband filed stay application in Aurangabad High court against Civil suit filed u/s 18 (2) of H.A.M.A by wife, claiming an earlier Divorce appeal was pending in Mumbai High court & same needs to be decreed before proceeding in the matter of Civil suit u/s 18(2) of H.A.M.A. Stay was granted by Aurangabad bench .
11 . Divorce appeal came to be finally heard on 10th dec 2013 but judgement was kept reserved until 7th March 2013
11.In the intermediate in Oct 2013 Wife filed application for dismissal of stay & writ petiton in Aurangabad High court and prayed for order to proceed in H.A.M.A case for granting of maintenance. u/s 18(2) at Ahmednagar.
12.On 21st Feb 2014 (when the matter of divorce appeal had already been heard in Mumbai High court but the Judgement had been kept reserved & not declared till that time) the Aurangabad High court Judge finally heard the matter and disposed of the Writ petition& Civil application by wife stating that the Civil suit in Ahmednagar u/s 18(2) of H.A.M.A should proceed after the delivery of judgment in Divorce appeal of Mumbai High court.
13. 7TH MARCH 2014 the final judgement / decree of divorce was passed by the Mumbai High court in favour of the Husband claiming that wife had deserted the husband without any just cause and not only deserted but with animus disserendi proved.
14. Now when the Divorce decree itself is completely silent on the point of final maintenance or alimony as per Rule 12(1)(c) of Order 20 of cpc can it be said that the Division bench have refused to grant any Maintenance due to the fault of wifes desertion with animus disserendi.
Please revert urgently
would be obliged
awc
V R SHROFF
(Expert) 03 April 2014
Division bench have refused to grant any Maintenance due to the fault of wife's desertion, BUT MATTER FOR DIVORCE ONLY,SO MTN WILL CONTINUE.
Rajendra K Goyal
(Expert) 03 April 2014
Consult a local lawyer and show him all the papers including the judgment copies.
Devajyoti Barman
(Expert) 03 April 2014
No, it can not be interpreted in that manner. The divorcee wife can still claim for maintenance u/s 125 crpc.
Guest
(Expert) 03 April 2014
Well advised.
ashutosh
(Querist) 04 April 2014
Thanks you Experts sirs
Please also let me know about the other two points
3. In lieu of the above Divorce Decree ,Whether a pending civil suit u/s 18 (2) of Hindu Adoption & Maintenance Act will survive / is tenable in Law , as Maintenance can only be granted u/s 18 (2) is to a “wife” when the relationship of Husband & wife exists.But due to divorce decree this relationship has come to an end.
4. Whether “Preliminary issue” can be allowed to be framed by the court in the civil suit u/s 18 (2) of Hindu Adoptions & Maintenance act under order 14 rule 2 of cpc . The stage of the civil suit is that it has been already partially heard and is at the stage is of part recording of evidence of Husband &his cross examination.
Devajyoti Barman
(Expert) 04 April 2014
who are you and how are you related to this query?
ashutosh
(Querist) 04 April 2014
I am the husband & this is my own case
Guest
(Expert) 04 April 2014
No escape from maintenance charges, unless your divorced wife prefers not to claim or she has more income than yours.
Devajyoti Barman
(Expert) 09 April 2014
the case is not fit for framing of preliminary issue u/o 2 r 2 of cpc.
