Maintenance u/s 125 crpc of void marriage
Guest
(Querist) 23 March 2015
This query is : Resolved
Sir,
With all due respect, please help me.
The case is that ki the wife of my client was already married and was having a customary divorce from the first husband and she hid this fact from her second husband/my client and married the my client with fraud in order to grab his money..
Then she lived with the husband/my client for few days and left to her parental home and after sometime filed a complint in womens cell and there the husband/my client came to know about her first marriage.
Now the wife has filed maintenance petition u/s 125, magistrate awarded interim maintenance which i got stayed in sessions..now it is pending for final arguments..kindly help..
Petition for declaration of marriage as null and void is pending..
And how come she can get maintenance as the marriage was void and shes not the legally wedded wife..
malipeddi jaggarao
(Expert) 23 March 2015
There is no relation for maintenance petition and petition for declaration of marriage as null and void. The magistrate can award interim maintenance pending declaration of marriage as null and void.
As regards customary divorce, you being the advocate might be aware, customary divorce is prevailing in some communities and as per Hindu Law, it is recognized subject to strict proof. Hence, it is not since she has obtained legal marriage, her divorce could not be recognized. There are Supreme Court decision in this regard, you can browse through and acquaint yourself. As regards suppression of fact that she was divorcee, merely on this count, the second marriage cannot be declared as null and void.
SAINATH DEVALLA
(Expert) 23 March 2015
Contrary to the general notion regarding the indissolubility of Hindu marriages, a large section of Hindus among the lower castes have traditionally practiced divorce. These customary forms of divorce were recognized, both socially and judicially. The usual customary forms are:
(1) By mutual consent
(2) Unilaterally—at the pleasure of the husband or by the abandonment of the wife
(3) By deed of divorce
Suppression of earlier marriage by the wife makes the 2nd marriage null and void
go through this case
http://judis.nic.in/judis_andhra/filename=9728
Rajendra K Goyal
(Expert) 23 March 2015
If the court decides the marriage as null and void, court may not grant maintenance.
ajay sethi
(Expert) 23 March 2015
pay interim maintenance as per court orders . if court declares second marriage as null and void you may not have to pay anything later
DEFENSE ADVOCATE.-firmaction@g
(Expert) 23 March 2015
Court cases are tactics and do not run like a math problem.
You have to be on your toes if want to win the cases.
You have missed the first bus.The court must have granted interim on your admission of marriage.
Legal or void will take years to decide.
It is an interlocutory order so only if the opponent is docile than only stay will continue otherwise it will be vacated.
Start journey again in lower court by taking plea of jurisdiction and maintainability of the case.
Study case laws , seeking advice on such open and free forums is no solution in long run since you can not fed step by step.
Guest
(Querist) 23 March 2015
Sir for the divorce part, the customary divorce is not prevailing which means that she was already having a living spouse at the time of marriage with my client(which beats the basic conditions of a valid hindu marriage).
But sir for declaring the marriage void it will take many years and till the time it is proved that the wife was already married to someone..can the revisional court make any such order whereby it can mention that until the marriage is declared legal my client does not have to pay any maintenance.
And advocate defence, with all due regards and respect to u, if i am posting anything on this forum and taking advice of my learned seniors it does not mean that i am taking free advice, it will defeat the basic purpose of this site and forum whereby all the members are there to help their counterparts in different parts of the country and making a unity among themselves as advocates..
And sir moreover the constitution of india and other prevailing laws does not anywhere say that an advocate should charge fee for giving his advice..its a nobel profession..which we all are proud of..
Regards..
Dr J C Vashista
(Expert) 24 March 2015
Dear Karan,
1. Find out the details of her first husband, contact and persuade him to file a case of bigamy (U/S 494 IPC) against the lady, you will have to be offensive, if you are serious to win your case.
2. Present marriage with your client is void, apply and pursue it vigorously, without any iota of compromise at any stage.
3. Your client is liable to pay interim maintenance since there are various decisions where Supreme Court has allowed maintenance to live-in-relation lady.However, lis pendence, keep on lingering payment of interim maintenance on one or the other pretext.
4. You are required to be polite with any one of the experts on this platform for such discussions/ debates as some of the authors of the query do post for time pass, which irretates.
5. I agree with you it is a noble profession and for the maintenance/ survival, selling intellectual proprietary of the expertise as well as professional demand for fee cannot be denied by you, isn't it?
6. Despite the fact this platform is providing free legal consultancy services to the needy litigant as a social service, Constitution of India or any other Law of the land do not debar a professional to charge fee for the legal or any other professional service rendered to his clients.
7. Whatsoever, when you sign a vakalatnama with your client it creates an obligation on the part of client to pay the agreed amount as your fees (consideration- an essential ingredient of contract) otherwise, you are not bound by the terms of the conditions.
8. I suggest and advise you please do not feel offensive on the advise of either of the experts/seniors, if you want to enrich your professional knowledge and gain something.
Best wishes.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 March 2015
Experts are giving free advice on the information provided.
All I have said that being advocate you should not expect step by step advice on free web sites.
And if at all you needed advice it should have been taken before the interim order was passed.
Now very expert action is needed for which free sites are no solution since other side has played their cards properly.
SAINATH DEVALLA
(Expert) 24 March 2015
well analysed by Dr.Vasistha and Advocate Defence
Guest
(Querist) 24 March 2015
Dr. Vasistha your advice duly noted down... And i apologise the experts if my words were offensive...thank you for your valuable advice..
And advocate defence thank u fr ur advice and in the trial court i was not engaged by the client, he only engaged me for the revision..
And sir this does not come within the purview of live-in relation..i suppose..there are various judgments of the SC in which the maintenance was denied to the wife as she does not fall within the def. of wife as given under sec 125..like 2005 SCC (3) 636
2013 SCC (2) 137
Air 1998 SC 644
2002 AIR(Del) 373..
But in all these cases the wife was denied maintenance for not being a legally wedded wife..and in these cases it was the second marriage of the husband..
T. Kalaiselvan, Advocate
(Expert) 25 March 2015
What do you mean by second marriage of the husband? Legally, if matter is taken up properly, the maintenance award can be dismissed, but you have a problem in the lower court which was not presented properly by the previous counsel, so you may have to struggle in the revision court.
Guest
(Querist) 26 March 2015
Sir i mean those were the cases in which the husband was earlier married and the court denied maintenance to the wife being his second wife..
But in my case it is the second marriage of the wife while the first marriage of the wife still subsists as there is no formal declaration of divorce between them..
However many decisions are in my favour that its the personal laws of the Parties which are to be seen while granting maintenance u/s 125...and my case is hit by sec.5(i) r/w sec.11 of HMA as the present marriage was null and void bcoz the wife was having a living spouse at the time of marriage...
Rest i am feared about the judge as in the lower courts the decision is always biased in favour of the wife..lets hope for the best..
And thank u a lot sir for replying..
DEFENSE ADVOCATE.-firmaction@g
(Expert) 26 March 2015
Citations rarely help since there is always the other side and the court to interpret it .
The quoted citations goes against you. More ever the lady can always claim that even after knowing she was lured in relationship.
Again while claiming void marriage means you admit marriage even though may be illegal which is sufficient to grant maintenance.
Guest
(Expert) 26 March 2015
What do you mean by customary divorce and whether in the case of Hindu or Muslim wife?
However, cases fought on merits are more successful and help in long run, rather than on the basis of case laws, where the judgment based on case laws can be treated as merely lame justice tending to arise more complications later, if appeals are preferred against such orders.
T. Kalaiselvan, Advocate
(Expert) 26 March 2015
It is a clear case of void marriage which can be declared as null and void by court on a petition with documentary evidences to prove it, after which the maintenance case can be handled in the appeal too. Put your hard work and efforts to prove nullity before court.
Dr J C Vashista
(Expert) 29 March 2015
Dear Karan,
Did you advise your client to file a case/ lodge a police complaint of committing cheating, forgery and blackmailing by the (so-called) wife qua concealment of first marriage? If yes, pursue it vigorously; otherwise, get it done quickly.
Best of luck.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 29 March 2015
Mr Kalaselven you are assuming that earlier marriage was legal. She may be living as couple with earlier person without any legal marriage.
And once the present party has admitted living together no action by other side can be avoided.
And Dr Vashista there will be legal help to other side also so she can also file extreme cases which may be more lethal.
Guest
(Expert) 29 March 2015
Mr. Karan,
Do you have any answer to my query posted 3 days ago?
Guest
(Querist) 31 March 2015
Sorry PS Dhingra sir for replying so late..customary divorce on stamp papers before a notary has been executed by the wife and her first husband, just after 4 months of their earlier marriage and it has been witnessed by more than 6 people, including the parentage of both the parties and the bardari( community) head and moreover the earlier husband is not denying the fact that ki he married the girl.. And yes the earlier marriage was according to hindu rites and customs so far..
Dr JC Vashista sir yes a case u/s 494 and 420 is also pending..
And ADVOCATE DEFENCE sir, yes the earlier marriage was legal bcoz the earlier husband is ready to accept before the court that he got married to her and they had a customary divorce..but that has to be proved in the trial, which will take time..
