Appeal against recovery warrants and stay order in 125 crpc

Hi Friends,

Wife filed sec 125 in July 2011. She averred in her petition that "because she is unable to maintain herself....she requires maintenance". October 2011 counseling session happens and settlement is reached through Lok Adalat to give maintenance @ 4200/- p.m. to the wife as she had averred in counseling session that she is not working anywhere and she requires maintenance as well as she wrote in her 125 petition that "as the respondent is not able to maintain herself......". Also I was not able to prove where she was working and had limited knowledge that time so I agreed for settlement reached through Lok Adalat.

Later on in April 2012 I get to know that wife was working in a prestigious private school in her hometown and earning handsomely even while she filed the petition in sec 125 crpc. I then filed a petition u/s 127(1) crpc in August 2012 for cancelling maintenance of wife as she was working and was able to maintain herself. The wife had averred wrongly in her 125 petition and had played fraud with the court. She was working and at the same time she was taking maintenance.

I had stopped paying maintenance voluntarily (as in one of the counseling sessions in November 2012 I was assured by the Hon'ble Judge of Family Court that till the disposal of the 127(1) crpc case my wife would not claim maintenance from me in sec 125 crpc. Unfortunately all this was verbal and was not noted down in the order sheet.) from November 2012 - till date though the 125 crpc order is still in existence and the crpc 127(1) case is going on in Family Court since August 2012. My statement has been recorded and he has been cross examined by his wife. Also I have given an application calling for records u/s 91 crpc from the wife's school and provident commissioner office citing the wife's p.f. a/c number in which her p.f. was getting accrued. The reply has been filed by the opposite party and in the next date arguments would be held as to why the records of the wife should be called. The wife has mainly taken the defense in her reply that "she had already told me that she was working in the school and I knew this very well".

Wife has filed various execution applications u/s 125(3) in family Court for different months. In some application Family Court has issued recovery warrants against the husband without hearing the husband And In some other execution application the date has been given when the order would be given for the execution applications.

My Queries:

1) Can I get a stay on the crpc 125 order from the HC ?

Yes.

citing the facts of the case stating the girl has played fraud with the court, she has not come to the court with clean hands as she was working and earning handsomely still she was receiving maintenance ? Can I make this as a prayer in my 482 crpc application in HC ? What is the chance of this being accepted by HC ?

HC will look into the stay appeal first then subsequently will accept your 482.

2) Can I also make a prayer that the various recovery execution applications should also be stayed till the final disposal of the application u/s 127(1) filed by the husband ? Can the execution application in which recovery warrants have been issued be stayed by the HC ? Can this also be made as a prayer in my 482 crpc application in HC ? What is the possibility of this being accepted by HC ?

Yes, you should have to ask LCR, and ask for stay of proceedings in LC, and at the same time you have to approach the LC and show that you have already approached HC vide case number so and so.  Make this prayer in appeal while asking stay and not in 482.

 

3) The third point in the prayer which I want to make is for early disposal of my crpc 127(1) case filed in Family Court and which is being unnecessary delayed by the wife by claiming exemptions as per maintenance in sec 125 is still going on and is valid so its piling up. What is the possibility of this being accepted by HC ?

Early disposal ?  Dont make such prayer. Why?  It is not a feasible move, court may react differently in this situation, you cannot ever ask court to move fast.

I have been advised by my HC lawyer that HC rarely stays the crpc 125 order as well as recovery execution applications whatever be the circumstance of the case. Is this correct ? OR do I have chance seeing the facts and circumstance of my case ? I am filing an application u/s 482 crpc. since the section is criminal. Is it OK

As you have done all the things required in LC, HC has to look into the matter, for sure.  Why your lawyer has told that HC wont interupt in 125 is for the sole reason that this is just IA and not permanent alimony.  HC will think that as this is just IA, let him pay, but as you have done your paper work in LC, you have a good chance of being heard and the case getting dismissed if argued properly.

Also do I need to file separate application for early disposal and stay Or can I file stay in the same 482 crpc application ?

All that you mention in stay appeal, no seperate application for that.

Please do help with judgments given the circumstance of the case as well as your esteemed suggestions in great numbers. I am in dire need of suggestions and help. Please do suggest in large numbers as to what is the best possible solution in the present circumstance.
Thanks and Regards,

Sid

Originally posted by : Siddhartha







Hi Friends,

Wife filed sec 125 in July 2011. She averred in her petition that "because she is unable to maintain herself....she requires maintenance". October 2011 counseling session happens and settlement is reached through Lok Adalat to give maintenance @ 4200/- p.m. to the wife as she had averred in counseling session that she is not working anywhere and she requires maintenance as well as she wrote in her 125 petition that "as the respondent is not able to maintain herself......". Also I was not able to prove where she was working and had limited knowledge that time so I agreed for settlement reached through Lok Adalat.

Later on in April 2012 I get to know that wife was working in a prestigious private school in her hometown and earning handsomely even while she filed the petition in sec 125 crpc. I then filed a petition u/s 127(1) crpc in August 2012 for cancelling maintenance of wife as she was working and was able to maintain herself. The wife had averred wrongly in her 125 petition and had played fraud with the court. She was working and at the same time she was taking maintenance.

I had stopped paying maintenance voluntarily (as in one of the counseling sessions in November 2012 I was assured by the Hon'ble Judge of Family Court that till the disposal of the 127(1) crpc case my wife would not claim maintenance from me in sec 125 crpc. Unfortunately all this was verbal and was not noted down in the order sheet.) from November 2012 - till date though the 125 crpc order is still in existence and the crpc 127(1) case is going on in Family Court since August 2012. My statement has been recorded and he has been cross examined by his wife. Also I have given an application calling for records u/s 91 crpc from the wife's school and provident commissioner office citing the wife's p.f. a/c number in which her p.f. was getting accrued. The reply has been filed by the opposite party and in the next date arguments would be held as to why the records of the wife should be called. The wife has mainly taken the defense in her reply that "she had already told me that she was working in the school and I knew this very well".

Wife has filed various execution applications u/s 125(3) in family Court for different months. In some application Family Court has issued recovery warrants against the husband without hearing the husband And In some other execution application the date has been given when the order would be given for the execution applications.

My Queries:

1) Can I get a stay on the crpc 125 order from the HC ?

 

Yes.

 
citing the facts of the case stating the girl has played fraud with the court, she has not come to the court with clean hands as she was working and earning handsomely still she was receiving maintenance ? Can I make this as a prayer in my 482 crpc application in HC ? What is the chance of this being accepted by HC ?

HC will look into the stay appeal first then subsequently will accept your 482.

Firstly, thanks a lot helping hand for your thoughful advise. I have filed 482 in the HC with a stay petition and all the 3 prayers. I am fighting as party in person and would be keeping all the facts of the case in front of the Hon'ble Judge. I am hopeful of some kind of releif. My 127(1) case is still going on in Family Court and its in argument stage where I would be arguing that the records of the wife should be called. Seems that the Family Court case would take long. That's why I had included a prayer to decide the case in a time bound manner. Could HC dimiss my 482 in the intial stages? I understand that stay appeal are heard first and then its decided whether to grant stay or not. I am very hopeful of getting a stay in my 125 case as well in the execution petitions being filed by my estranged wife. She is keeping on filing execution petitions taking advantage of the fact that the order of sec 125 is still is existance and no stay order has been granted till date. My Family Court date is also coming soon where the Hon'ble Judge would also ask me to pay up in the execution peitions being filed by my wife. Recovery warrants have been issues in some of the execution petitions. Lets see what happens in HC. Everybody is discouraging me that HC rarely grants stay in 125 whatever be the case. 

2) Can I also make a prayer that the various recovery execution applications should also be stayed till the final disposal of the application u/s 127(1) filed by the husband ? Can the execution application in which recovery warrants have been issued be stayed by the HC ? Can this also be made as a prayer in my 482 crpc application in HC ? What is the possibility of this being accepted by HC ?

Yes, you should have to ask LCR, and ask for stay of proceedings in LC, and at the same time you have to approach the LC and show that you have already approached HC vide case number so and so.  Make this prayer in appeal while asking stay and not in 482.

Pardon me my ignorance but could you let me know what is LCR? I asked for stay in proceedings in LC i.e FC but the Hon'ble Judge is not ready to listen and I have been advised by many that FC Judge dosn't have the powers to stay the orders granted by iteself. They advised me to approach HC which I have done. I would surely approach FC in my next date that I have approached HC and give then the case no. I have made this as a prayer in appeal while asking stay as well in 482. 
 

3) The third point in the prayer which I want to make is for early disposal of my crpc 127(1) case filed in Family Court and which is being unnecessary delayed by the wife by claiming exemptions as per maintenance in sec 125 is still going on and is valid so its piling up. What is the possibility of this being accepted by HC ?

Early disposal ?  Dont make such prayer. Why?  It is not a feasible move, court may react differently in this situation, you cannot ever ask court to move fast.

But many of us move for early dispoal filing a Writ petitions under Article 221 of the Constituion. If this case is not finished early then it would hurt me financially. The opposite party would delay the case and keep taking the maintenance knowing that the maintenance once given cannot be returned. 

I have been advised by my HC lawyer that HC rarely stays the crpc 125 order as well as recovery execution applications whatever be the circumstance of the case. Is this correct ? OR do I have chance seeing the facts and circumstance of my case ? I am filing an application u/s 482 crpc. since the section is criminal. Is it OK

As you have done all the things required in LC, HC has to look into the matter, for sure.  Why your lawyer has told that HC wont interupt in 125 is for the sole reason that this is just IA and not permanent alimony.  HC will think that as this is just IA, let him pay, but as you have done your paper work in LC, you have a good chance of being heard and the case getting dismissed if argued properly.

Yeah if HC looks into the matter and hears me properly I am sure that would dismiss the case. The opposite party has come to the court with unclean hands and had hidden material facts before the court. 

Also do I need to file separate application for early disposal and stay Or can I file stay in the same 482 crpc application ?

All that you mention in stay appeal, no seperate application for that.




Please do help with judgments given the circumstance of the case as well as your esteemed suggestions in great numbers. I am in dire need of suggestions and help. Please do suggest in large numbers as to what is the best possible solution in the present circumstance.
Thanks and Regards,

Sid







 

Find attachments which can be helpful.

Originally posted by : Helping Hand !










Originally posted by : Siddhartha







Firstly, thanks a lot helping hand for your thoughful advise. I have filed 482 in the HC with a stay petition and all the 3 prayers. I am fighting as party in person and would be keeping all the facts of the case in front of the Hon'ble Judge. I am hopeful of some kind of releif. My 127(1) case is still going on in Family Court and its in argument stage where I would be arguing that the records of the wife should be called. Seems that the Family Court case would take long. That's why I had included a prayer to decide the case in a time bound manner. Could HC dimiss my 482 in the intial stages? I understand that stay appeal are heard first and then its decided whether to grant stay or not. I am very hopeful of getting a stay in my 125 case as well in the execution petitions being filed by my estranged wife. She is keeping on filing execution petitions taking advantage of the fact that the order of sec 125 is still is existance and no stay order has been granted till date.

When you are stating that your wife is going on filing execution application for recovery of maintenance, your lawyer has failed to mention 1 thing in stay appeal in HC, asking for call of records from lower court ie Family Court with reagard to that maintenance application. [LC= lower court which is Family court, LCR = Lower court records]  Even if he has not mentioned such a line in appeal, your lawyer of LC/FC should have notified the LC of your approaching HC vide number so and so, as parallel proceedings are not allowed under law, means to say that when you have approaced Higher Court then same matter cannot be run in LC.  Your LC lawyer has made mistake of not intimating LC judge.

Pardon me my ignorance but could you let me know what is LCR? I asked for stay in proceedings in LC i.e FC but the Hon'ble Judge is not ready to listen and I have been advised by many that FC Judge dosn't have the powers to stay the orders granted by iteself. They advised me to approach HC which I have done. I would surely approach FC in my next date that I have approached HC and give then the case no. I have made this as a prayer in appeal while asking stay as well in 482. 
 

The moment you get that number of stay appeal in crl mis petition vide number, the very next moment you or your lawyer should approach LC with copy of said appeal [carbon copy or xerox copy] stating that you have approached and ask for stay on execution proceedings on maintenance with immediate effect.  LC, LCR explained above. 

But many of us move for early dispoal filing a Writ petitions under Article 221 of the Constituion. If this case is not finished early then it would hurt me financially. The opposite party would delay the case and keep taking the maintenance knowing that the maintenance once given cannot be returned. 

Writ petition is different, appeal for asking stay is different. Do not feel bad about this advice.  You open your application any of it, first line in your application/petition will be "THE PETITIONER BEGS TO SUBMIT AS UNDER"

When you go to court yourself or via lawyer, you are begging for justice to be given to you stating so and so, here you cannot tell give me so and so urgently, hope you are getting my point.  Lots of cases, and even if your lawyer asks the court to speeden up case, it may have an adverse effect on your case, it is not good to pressurize the judge, so I do not advocate speedening up of the case.


Yeah if HC looks into the matter and hears me properly I am sure that would dismiss the case. The opposite party has come to the court with unclean hands and had hidden material facts before the court. 

That entirely depends on how your advocate presents the case before HC, totally depends upon his skill, wishing you good !

Also do I need to file separate application for early disposal and stay Or can I file stay in the same 482 crpc application ?

All that you mention in stay appeal, no seperate application for that.




Please do help with judgments given the circumstance of the case as well as your esteemed suggestions in great numbers. I am in dire need of suggestions and help. Please do suggest in large numbers as to what is the best possible solution in the present circumstance.
Thanks and Regards,

Sid







 

Find attachments which can be helpful.