Permanent alimony and hma amendment

 Your query could be replied in two ways;

1.    1.    If there is already a live divorce case running in a Court and if party have shown 3 years separation in petition then when time comes to decide on an moved petition under S. 25 HMA by wife, Court may consider counter claims of wife under IrBM clause and is not in addition given as it can’t be done so. My guess is wife will definitely move counter claim to invoke IrBM clause showing alleged facts of separation is very much there in petition i.e. of 3 years yet grounds for seeking divorce are different though ! But hell what, it will still go under IrBM dust in that alleged scenario.

2.    If there is already a live divorce case running and if other party (wife obviously) scuttles the proceedings and makes it delayed by 3 years then puts in a counter claim using IrBM clause sayign with wet eyes to lordship; look 3 years seperation already there between us then it is obvious S. 25 HMA petition as then moved by her will encompass IrBM clauses i.e. her financial security out of movable - immovable assets of husband.

3.    You are confused is what I feel; to simplify this amendment; IrBM is a additional ground with a caveat party should have been living in separation for minimum 3 years to invoke it. Wife can invoke it and husband cannot oppose it. Husband can invoke it too and wife will gladly file Petition under S. 25 HMA if self acquired or inherited property found with husband – Inlaws side and end up making a mullah out of such amended ground as previously she was finding it difficult to get divorce when husband used to oppose it and even if she used to get divorce then the alimony was pittance and now with this amendment all she has to watch or politely said here is that, get land revenue records via RTI or from District level (even net copies) eSoft copies from net or from real estate websites of valuation will do as material facts and press ld. Judge to apply his discretion as under the amendment lots of discretionary powers to ld. Judges have been given on partition - division of assets how it should be given to her (I mean a monetary share out of partition not actual share of the property).  

@Tajobs When false cases of 498A, DV etc. has already been filed, Can she seek relief under 13c /  S. 25 (13c) even then? Please provide your valuable guidance

Woman can seek any relief.

But you should be knowing how to play hide n seek.

1.    Yes.

2.    Mentioned cases will still run post divorce on their respective strengths.

3.    No such clause as ‘end all litigation between spouses’ before decree under IrBM has been in-built by legislatures in their wise wisdom and for the same Hon’ble SC may step in once this Amendment becomes Law i s my view.

4.    You did not read the fine prints which I repeat; All a metro wife has to say to Court  IrBM grant me divorce as 3 years separation also proved by me and her husband cannot oppose her ground and secondly her financial hardship at the time of passing decree under S. 25 HMA has to be discretionarily decided by a ld. Judge PERIOD
Illustration:
A lady marries a man in 2010. From day one as she usually alleges she was subject to cruelties and on day two she leaves for her natal home. Husband – his side tries to reconcile all the time. It fails. Meanwhile she files S. 498a / S. 125 / DV complains. Three years is well passed. She works all along meanwhile which Husband – his side never comes to know. On completion of exactly three years she walks to Court and says IrBM Sirji ! Result - Husband cannot oppose her grounds at all in civil personal law suit matter due to Amendment wordings. She gets decree under IrBM, smiles and shakes hand with husband telling him now you know me or still you want to know me...... Husband has self acquired property whose EMI’s he is still paying. She goes to some property dealer in locality and asks current market value of still constructing THAT property and files ‘financial hardship’ plea u/s 25 HMA and also says from last three years no work I was doing due to stress of half dozen case and was sitting at home dependent upon my older than Limca book of records parents and a ld. Judge all he has to do is take ‘property dealer’  some market value statement on record and halve that valuation into two parts and give her half of it as S. 25 HMA alimony ‘financial hardship’.
[say the property under construction under EMI’s at the time of application was 30 L which is usual national average now-a-days and in three years it is natural the said property would have escalated to 40 L. Property dealer will always speculate the property rates for his commission benefits and he values it for 45 L. Wife shows this valuation. Now when s. 25 HMA is before ld. Judge either he will apply his ‘discretion’ to 40 L or 45 L and with a long lecture on morality (that husbands hide their income blah blah) it is natural he will value it for 45 L under trial Court discretionary power this IrBM Amendment gives to him. What happens now – wife gets 20 L.]
Now imagine where from husband who does not even have that property allotted or having its possession and still paying EMI is going to bring in this extra cash to avoid distress warrant? So he obviously will go to HC with that middle class HOPE mentality. HC for admitting his Appeal will ask him to deposit minimum 5 L. That 5 L will obviously go to wife and then shall admit the case. Few dates will be given. HC will in its wisdom will not wave it off but most probably will say with its morality – ethics lecture property is valued at 30 L and hence follow trial Court 50% share ration in good spirit which I revise by way of my superior Order to be 15 L ! Again from where husband is going to bring this 15 L? So he will search for a SC AoR. Now most probably before Hon’ble SC she will send parties to SC Lok Adalat to settle their issues. Here bargaining be it 20 L or 15 L will fail as the husband has already paid huge EMI’s till date + already paid 5 L to admit his case in HC + paid for HC advocate + now paying for SC AoR. So what he will do in his SLP is to challenge it as he left with no other choice in depressing economic times as he still has THAT MIDDLE CLASS LITIGANT INTITUTION fluterring in his stomach. Now Hon’ble SC will most probably will decide saying look man you already paid 5 L what we see as natural justice is that we give you 1 year to pay balance 10 L and case dismissed with no further recourse to appeal PERIOD.
Before this grandstanding PERIOD the poor chap will still be facing S. 498a / S. 125 / DV complaint which neither Hon’ble HC and/or SC will touch saying point blank to him MERIT se lado balak divorce ho gaya tumhara we cannot change or add legislative wisdom as it is parliament's prerogative they even clipped some of our recent Orders (criminal cannot remain legislatures / appointment of Judges / on Red Lights atop cars etc. etc...the list is there brother)……………..
BTW in above illustration add your inheritance pot puree and make illustration scope wider as in Hindu Marriage Act is infact worlds best Amendment Laboratory and either test strength of a ceiling fan or join AAP and see WE THE CHANGE……………….
[Last reply]

Tajobs sir thanks a lot for your comprehensive reply.

Still some doubts persist and clarification will help many of us . quoting from section13F (1) Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 13C on a petition made by the wife, order that the husband shall give for her and children as defined in section 13E, such compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable".

Sec25 refers to payment  'for maintenance and support'. If sec25 is still valid for sec 13F  words'just and equitable' mentioned in sec 13F should get qualified and interpreted in terms of sec 25 viz. 'for maint. and support.' As various judgements,while deciding alimony have held that 'wife should neither live in penury nor luxury'.

My point is sec 13F read with sec25 should still give total compensation which is needed for her to maintain the same lifestyle as she used to in her matrimonial home.Imean it should be no profit no loss case financially for wife.She cannot earn profit out of divorce.Of course it is to be seen how higher courts will interpret sec13F in light of sec 25.Any further thoughts on this will be very helpful.

Regards

ASHISH

Dear Tajob Sir

In the example/hypothetical scenario given below, the main points are

1. Wife leaves home

2. Wife files DV, 498A, 406 etc against in laws. Husband does not file divorce on grounds of cruelty.

3. After 3 years of separation, Wife files divorce under IRBM and seeks alimony u/s 13F.

As per amendment passed in Rajya Sabha, there is a change in section 23 (1) (a) also. Now this section will become

Section 23. Decree in proceedings.-(1) In any proceeding under this Act, whether
defended or not, if the Court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner except in cases where
the relief is sought by him on the ground specified in sub-clause (a),sub-clause (b) or subclause
(c) of clause (2) of section 5 or in cases where the petition is presented under section 13 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

My question is :

Can husband object to divorce u/s 13C(IRBM) by citing section 23 (1) (a)?

If yes, then in my opinion, husband can file counter claim of divorce on ground of cruelty and desertion. And if husband can get acquittal before the order of divorce i.e.if he can prove cruelty then he will not have to pay alimony u/s 13F but he may have to pay alimony u/s 25 only (if wife is not working).

Please guide.

My opinion is: I doubt one can change ground for divorce from one time to another. I have not come across such thing till date. Any citation please let me know.

I think that you can change grounds to desertion after filing grounds for cruelty if the two years (or is it three?) threshold period passes by while the case goes on on grounds of cruelty and the separation in the meantime exceeds the two years requirement. 

Also, one more IMPORTANT point that we husbands often miss: Wife files for DV, 498a, etc. and for divorce on grounds of cruelty. You, the husband, frustrated and angry, just keep defending yourself, may be even get arrested and released on bail, whatever. The worse the nightmare, the better. Why? Well, if you get all these other non-divorce cases thrown out fast, then you can and should file a counter-application for divorce on grounds of cruelty by wife. There are MANY caselaws in support that the filing of false cases tantamount to cruelty by wife. Point is: Yes, you can change, or rather in this case, add the grounds for divorce. And do you know that cruelty by wife disqualifies her from maintenance? I bet most of us are unaware of this. 

So... when a wife files  a false criminal or quasi-criminal cases, feel happy.. even distribute pedas in front of her and give one to her too! The more she files, the more happier you should be if you keep the end goal in mind.... just keep delaying the divorce proceedings until the criminal cases are disposed of. In fact, you can file your counter-divorce case and ask the Judge for a stay until the criminal cases are disposed of. 

I HOPE THAT THIS INFORMATION IS PASSED TO EVERY VICTIM OF FALSE CRIMINAL CASES. MOST FAMILY COURT ADVOCATES TAKE NO STEPS IN THIS DIRECTION BECAUSE THEY ARE MOSTLY IDIOTS SO IT IS BETTER IN FAMILY MATTERS TO DO YOUR OWN READING, GET ADVISE ON FORUMS SUCH AS THIS AND REPRESENT YOURSELF.

Yes.  Can withdraw main petition and file fresh petition, divorce getting will become easy.  But one would have lost that time already, for eg today you file divorce in hurry burry, on basis of desertion.  Tomrw, after 2 years wife will file DV, 498a that this everything, now you can withdraw main petition and file fresh petition asking for divorce on basis of desertion and also mental cruelty showing false cases.  But those 2 years will be lost, and the money that husband would have paid to wife if any will also be lost.  New account start afresh now.

@Helping Hand... When there are problems with wife, these days, DV, 498 cases are all given... We know it and Judges know it. So, one day or the other you will have to face them, sooner the better. Want to expedite it, do something that will really drive her to file such cases... Like give her one fatka with Chappal every morning. Somebody referred to it as Chappal Pooja in this very forum. 

Wife filed divorce on mental cruelty ground. I filed RCR. Interim granted only to child.

we are seperated since last one year.

My question is after 3 years of completion can wife file divorce under IRBM if existing mental cruelty divorce & my RCR is still pending?

PLs advise

Thanks Samir and Helping Hand. One good point from your reply is there cannot be two grounds for divorce. For eg. She cannot simultaneously ask for divorce on say desertion and IRBM.

Also, as i pointed out in other thread in this forum, that, once she files cruelity etc. she cannot take no-fault divorce under IRBM i think. She has take other form IRBM which is fault based for which she has to prove. I really doubt that she can go ahead with no - fault divorce after filing 498a, dv etc and divorce by cruelity.

Also, these days she used to file 498a, dv and divorce by cruelity etc to get huge alimony by coercion and also getting divorce was difficult. Now with the divorce made easy also making quick bucks is made easy, she must be crazy to file these false cases. Anyways she has to wait for 3 years to get no-fault divorce which is good :P

Originally posted by : Samir N
	@Helping Hand... When there are problems with wife, these days, DV, 498 cases are all given... We know it and Judges know it. So, one day or the other you will have to face them, sooner the better. Want to expedite it, do something that will really drive her to file such cases... Like give her one fatka with Chappal every morning. Somebody referred to it as Chappal Pooja in this very forum.

Look this is where these bl**dy laws have lead men to.

I really could not convince the boy and his mother who were crying in court premises after getting arrested under DV, not to cry.

He was telling, sir I dint do anything sir, how I wish I would have really beaten her nicely everyday.  At least then me getting arrested would have had some meaning.

Especially that section 23 of the DV act is very dangerous one.  Issuance of ex-parte orders even if boy has told a 100 page story to the magistrate,he wont listen to all that, will just pass some idiotic one-sided order.