power of jmfc court in recovery from husband and husband has applied in high court.
Querist :
Anonymous
(Querist) 02 August 2011
This query is : Resolved
most humble request to lawyers-
recently session judge has cancelled the appeal of husband for stay order against interim relief to wife passed by jmfc, husband has applied in high court against jmfc and session judge order agaisnt husband to pay xxxx amount to wife.
during this pending time husband didn't deposited amount as he does not have any amount balance to pay in physically but the interim relief amount is gone upto rs. 100000/- now wife has filed for recovery application before jmfc but yet high court order is yet to came. and jmfc court is making pressure on husband to pay interim maintenance to wife or produce high court order for stay for the same. and further wife applied for issue of NON BAILABLE WARRANT against husband.
query to be replied for -
can a jmfc court take action against husband where husband is in appeal procedure and the same is pending before high court.?
is there any bar on lower court where appeal is pending before upper court? any case law to curb jmfc monopoly to execute order issued by them but yet appeal judgement is yet to come.?
what step can i take in this dilemma where jmfc is not considering all false allegation made by wife in d.v. case of maintenance and the financial position of husband as actually he is not in the position to pay heavy amount.?
adv. rajeev ( rajoo )
(Expert) 02 August 2011
When there is no stay from the high court, lower court will not wait for that. Mere filing of an appeal is not stay. So take the order sheet of the lower court and produce before the high court and pray for stay the proceedings of the lower court.
J.D.Sharma
(Expert) 02 August 2011
The first proviso to Sub-section (3) of Section 125, Cr.PC provides that for issuance of warrant for recovery of any amount due, an application to levy the amount has to be moved within a period of one year from the date on which it became due. First proviso to Sub-section (3) of Section 125, Cr.PC deals only with the period of limitation for recovering the amount by issuance of warrant in the same manner in which fines are recovered, and a person can also be sentenced to imprisonment for a term which may extend to one month, co-terminus with payment, if made sooner. The amount under an order passed under Section 125, Cr.PC becomes due every month. The monthly payment has purpose behind it. Firstly, it ensures welfare of person in whose favour order of maintenance has been passed, and also ensures that such person should not be rendered destitute. Right of maintenance is integrally connected with right to live itself, as without it, it may be difficult for a person to survive and keep Soul and body integral. The other side of the coin is, if maintenance is not claimed for one year it becomes irrecoverable as husband or other person may not be in a position to pay it in lump-sum and it appears that law presumes that for such a righl of maintenance a really needy person should not sit idle and must enforce the order in accordance with its spirit and purpose for which it is passed, to meet day to day essential requirement for very survival.
So in the absence of any specific stay issued by the high court, the proceeding of the lower court will not stop. In fact, the court will direct you to pay the interim amount in full and only than they'll proceed to hear your appeal.Alternatively, the High court may ask you to deposit the whole amount before it. The Ld. JMIC is acting within his jurisdiction by compelling you to pay the interim amount. This may look rude to you but my friend this is the not what i am saying but i am only reciting you the law of the land.
As regarding your second query on heavy amount and financial position you'll have to lead positive evidence in this regard.
This sure will be taken into consideration at the time of final disposal of main petition. For interim maintenance, the amount is not calculated on merits but on prima-facie material before the court.
