Divorce and maintenance
kamlesh
(Querist) 01 March 2012
This query is : Resolved
Sir,
i am running a small shop and my monthly income is Rs. 6000/per months. i married in 1997. In 2002, my wife went to her father house and then she was pregnant with three months. In 2003, my daughter was borned their and from that time, my wife is living at the home of her father. In 2006, i filed a case in court for calling them but she refuse my request. In 2007, she complete special B.T.C. course and from last four year, she is government employee in Basic shiksha parishad,U.P. in scale of P.B.2-Rs. 9300-13800/-(gross salary- appproximately 24000/- per month). In 2009, i filed case for divorce and calling of my daughter in my home town court. In mean time, she took stay from high court to transfer the case to her home district and file a additional case for maintenance in their hometown with showing herself unemployed. Now all three case have been opened in the district court of my wife's hometown. In present conditions, i have decided to take divorce from my wife because my married life is suffering, however she neither want to give divorce me nor want to come back. Till now, I and my wife are living alone and not adultery. Both option regarding my daughter, calling with me or leaving with her mother, are accepted to me (as my wife decide). But now i want devorce. Shall i pay the maintenace to my wife, if i divorce to her in such. As my age is near about 38 year and now i doesn't want to live alone, so can i mary with other one, since my wife is living separately from the last 10 years. Is such long separation may be treated as automatically divorce because she desert me with her accord ? Pls. guide me and provide relevent judgement of high court and supreme court in this regard. i also request to suggest me a good advocate in Kanpur City which has less fees because my financial condition is not good to bear such high expenses of fees and transportation.
V R SHROFF
(Expert) 01 March 2012
You cannot re marry withour a Decree of Divorce thr Court.
You are bound to pay Mtn of daughter, and also of wife, if you fail to prove she is earning.
Quantum will reduce, as she did not come back to you.
BEST WAY: TRY TO RE UNITE, AND SAVE YOUR MARRIAGE. Differences dissolves fast.
adv. rajeev ( rajoo )
(Expert) 01 March 2012
When she has got ndependent income she cannot claim maintenance.
Regarding divorce, for the sake of your daughter's future think twice and let wife to think properly and convince her properly and you both take decision.
Here doubt is that between you and your wife there is interference of third person, try to solve that problem.
Kirti Kar Tripathi
(Expert) 01 March 2012
Unless you are not legally divorced, you can not marry. You are also liable to maintain your daughter, You can not escape. However, You can escape from paying maintenance to your wife as she is in Government Job and her earnings are more then yours. This fact very well be proved by summoning the records from her office.
Deepak Nair
(Expert) 01 March 2012
As advised above, no remarriage without divorce.
Regarding maintenance, if you can prove that she is a government employee and earning a good amount, then her claim form maintenance will be rejected. But, you have to provide maintenance to your daughter.
kamlesh
(Querist) 02 March 2012
First, thanks to all of you for your suggestion...
Pls. also clarify following . . .
As i have submitted RTI in BSA,unnao office regarding the confirmation of her job and hence this can be proved in court that she is in government job. So my wife income is approximately five times of mine. In present also, i am agree to accept both, my wife and daughter, but my wife neither accept me nor give me divorce. In purview of this
1. who have the right to be the gardian of our daughter? The age of our daughter is approx. 09 year.
2. If my wife does not agree to send our daughter with me, so in that situation too, Shall i pay the maintenance charge too to my wife, though she is in govt. job and earning Rs. 25000/-per month and my income is Rs. 5000/- per month?
3. If your answer is yes, than what will be the maintenace charge?
4. As the case is in district court and after taking divorce from here, my wife may appeal in high court & supreme court and this will take a long time in finalization. so how can i short this process?
Deepak Nair
(Expert) 03 March 2012
1. Both of you have the right to be guardian. But the mother is in more advantageous position with regards to custody. Further, the choice of the child too is considered in certain circumstances.
2. Yes. You have to pay for maintenance even if wife refuses to send. But you can have visiting rights.
3. Charges depends on many factors. In your case, it can be aroudn Rs.1500/- to 2000/-.
Deepak Nair
(Expert) 03 March 2012
4. There is no way to shorten the legal procedures. You are supposed to follow the same path.
kamlesh
(Querist) 04 March 2012
Thanks deepak sir,
my last query is this, that in my case, if i have no permanent income source and living with my retiered father and mother, which are pentioned holder and getting Rs. 11000/- per month. i serve my mother-father and so they are bearing my daily expenditure. In that situation also, Shall i pay the maintenance charge for my daughter to my wife, though she is in govt. job and earning Rs. 25000/-per month and my income is zero.
may i claim maintenance for expence of court case procedding under Hindu Marriage Act 1955 section 24.
Pls. also suggest me some judgement of high court and supreme court.
Shonee Kapoor
(Expert) 04 March 2012
Though you can put a petition u/s 24HMA, it is unlikely that the same would be granted.
The maintenance of the child would be borne by both parties in proportion to the income of the parties.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
