Maintenance - how it would be decided

Fight your case on their merits collect all relevant proof of your innocence and for counter of her allegations , collect proof of her Education and her service exhibit it before the court that she is capable for her maintenance, sitting idle is only the intention to grab money from husband , strongly object on her maintenance petition and request the court to dismiss her petition .

But Sir, given my understanding, proofs related to the facts of the case are not considered at the interim stage. My lawyer told me that after WS and affidavits, the interim maintenance would be decided in CrPC 125. At this stage all that the judge would consider is whether the girl is earning or not and if she is not earning then husband would have to bear the burden of mainteance to some extent. Is this true? If I bring the fact about her prior jobs and earnings, would that help? I forgot to mention that after leaving me, my wife started doing some part time course and she is claiming that since she is studying she cannot do a job. Are there are any judgements to counter this?

According to legal concept of Sec.125 Cr.P.C. unemployed husband also has to pay maintenance to his wife if his health is fit to earn money and wife has no income for her livelihood..

Wife was working previously cannot be a ground to avoid the question of payment of maintenance.

If the wife after leaving her husband study any part time course and if under such a position wife is unable to do any job that cannot disqualify her to get maintenance from her husband. 

Sir, As I mentioned "given my understanding, proofs related to the facts of the case are not considered at the interim stage."

I said because have a voice recording on my mobile phone wherein she is clearly saying that

"Agar tum apne maa-baap se alag hone ko tayyar ho jao toh mujhe lene aa jaana varna aaj ke baad main apne papa ke ghar main hi rahungi"

In my view, this is a clear evidence of desertion. Can I request the judge to listen to the recording during the argument for interim itself so that her desertion is proven and maintenance can be denied? My lawyer says that evidence are not considered for interim stage but this is a crucial evidence of her desertion in my opinion.

Originally posted by : Dev Pundeer
	Sir, I'm an Computer Sc. graduate (BE - Engg) who got married to my wife (MBA HR recruitment) in Aug 2011. Both families belong to delhi. My family is working class (all govt service) and hers is business class family. There was no dowry demand in marriage. The girl was working for 1 years befor marriage and for 8-9 months after marriage. All total she stayed with me for one and half years in which there were lot of issues. She didn't wanted to do job and was critical of my parents and my unwedded younger sister. My father is still working while mother is housewife. She didn't wanted to help in any housework and constantly wanted me to seperate from parents. A younger sister who is the joint responsibility of my father and myself, I never wanted to leave the house and always begged her to stop with all the non-sense but she was adamant. She left me in Jan 2013 and filed cases in Feb 2013. There family has filed Dowry, 498a, 406, 506 and 125 CrPC on us. Her father is influential and used his approach to constantly harass us by sending police to our house every other day. Mentally disturbed after about 1 years I couldn't continue with job in Jan this year because in private company time is money and they took away my time in court dates, CAW cell, police harassment, her routine public nautanki at our house etc etc. Also they created negative repute in the eyes of my manager and HR by sending letters stating that I was involved in dowry practice and that the company should reveal my salary in court. 125 CrPC is coming up for interim maintenance next month and I have no job. I've filed my affidavit in which I've mentioned that in since marriage in Aug 2011 till now in 3 years I've worked for 31 months in which I earned all total 17 Lakh Rs but had not been doing job for the last 7 months. I do not have any other income but my father is still earning. Since we have house, there are no liabilities on me but today after 7 months, my savings have exhausted due to marriage expenses, foreign honeymoon trip, bought car 3 months after marriage and recent marriage expenses of younger sister. Still looking for an IT job (I'm a C/C++ programmer with 6 years of experience). My wife, who was earning last about 12000 pm after marriage is not working anywhere (A friend living nearby sees her almost daily at her home). Case is in Delhi in Family court. How much mainteance could I end up paying in the view of the learned advocates? Is it possible to ask the court to defer interim maintenance until I get a job? My advocate says that the judge will consider delhi labour wages for educated skilled worker and I might end up paying Rs 4000 to 5000 per month which would be a great burden on my father because I can't pay her the arrears for past 1.5 yeasr considering this amount  and future maintenance. What to do?

Sir, As I mentioned "given my understanding, proofs related to the facts of the case are not considered at the interim stage."

I said because have a voice recording on my mobile phone wherein she is clearly saying that

"Agar tum apne maa-baap se alag hone ko tayyar ho jao toh mujhe lene aa jaana varna aaj ke baad main apne papa ke ghar main hi rahungi"

In my view, this is a clear evidence of desertion. Can I request the judge to listen to the recording during the argument for interim itself so that her desertion is proven and maintenance can be denied? My lawyer says that evidence are not considered for interim stage but this is a crucial evidence of her desertion in my opinion.

 

Yes its a clear case of desertion.  Recorded material can be used to prove desertion in court.

It appears that your lawyer has misguided you or not guided you.  How did you allow for maintenance arrears to pile up for 1.5 years?  At end of 1 year you should have filed change in cirumstances application requesting teh court to readujudicate the maintenance ordered, by showing appropriate income certificate, plus showing all the expenditures you have on day to day basis/monthly basis/yearly basis.  Now after deducting expenditure from salary, you will get take home salary, on that 1/3rd will be calculated as maintenance.

Regarding arrears, you will have to clear of the arrears or face further consequences such as issuance of warrant, NBW etc.  And then file change in cirumstances application to court, and then again new count will start.

If you dont want to pay such huge arrears, its economical to bring wife back.  Then no need to pay money.

Or you can go for one time settlement, pay her money and get MCD in 6 months time.  All false cases will be taken back by your wife.  Next time dont marry, go for livin relationship.  Live together until either of you get fed up of each other, is the best way forward. 

Sir, Perhaps you've not read my complete problem. I've specifically written - "125 CrPC is coming up for interim maintenance next month".

I do not have any arrears, but if maintenance is decided to the tune of 5000 Rs and the case has been running for about 14 months now, that would be a huge amount for a jobless person like me to pay. Speciifically, what I'm asking is, can I present these evidences during the inteim argument hearing itself?

You may take help of your Advocate for speedy disposal of your case.  He should know the process.

Mr. Dev. few points in your favour are 1) your wife is educated, 2) your wife was previously employed both before and after marriage, 3) Your wife incapacitated herself from earning. 

 

Now i suggest the following strategy. 1) produce all documents related to your wife's education in court, if you dont have those then file rti with her collage from where she studied, if it fails the file application u/s 91 crpc in court to issue summons to your wife's collage to produce her academic details.

 

2) Produce all documents related to her past employement including her salary details. in case you dont have the documents then follow above procedure.

 

3) dont be jobless do some job and let court decide your income on your actual earning. at least satisfy court about your genuine efforts for getting job.

 

4) use attached case laws in support of your arguments.

 

5) in damanreet kaur case court clearly mentioned that if wife is previously working and left her job then the reasons must be analysed and if it is found that job was left intentionaly then no interim.

I totally disagree with the views of  Learned Mr. Victim..

And I totally agree with Mr. victim's reply and totally disagree with mr. Bishwanth Roy's reply.

What Mr.Victim had suggested is totally correct and useful to reduce or to cancel the maintenance of wife.

 

Delhi High Court had clearly ruled in the case of Damanreet Kaur vs Indermeet juneja that a qualified and previously earning wife if dont want to work and claims maintenance is not entitled for any relief.

 

Mr. Dev one more thing if your concealed any information related to her qualification details, past job and earnings etc. then she can be denied interim on grounds of approaching court with unclean hands. judgment in matter of dalip sing vs state of u.p will help you in this regard.

 

Sir, Biawanath Roy, after going through all these judgements, I find them relevant but I do wish to understand your reason for vehemently opposing the advice by others.

Could you please make it more clear as to what, in your viewpoints, is the logic that court would follow in such a case given the circumstances I've mentioned?

The question comes under the perview of section 125 Cr.PC IS "INABILITY OF THE APPLICANT TO MAINTAIN HERSELF". It is to be noted that the said words has been newly inserted in each of the Sub-Cls (a)-(d) of sub section (1).

Under the old section 488(1) in the absence of such words it was held in the case of Bhagawan vs. Kamala reported in  AIR 1975 at paras 18-19 by the Hon'ble Supreme Court that it was not incumbant on the wife applicant to prove that she was unable to maintain herself or her child, though of course in determining the amount of maintenance, the Court was entitled to take into consideration the separate income and means of the wife.

But the new code has expressly made it a condition precedent to the maintainability of an application for maintenance that the applicant - whether wife , child or parent, must be unable to maintain herself or himself- in addition to the other condition that the opposite party has neglected or refused to maintain the applicant.

But the fact that the petitioner has some separate income is not sufficient to throw out a petition under section 125 Cr.PC as not maintainable. It is to be decided at the hearing whether that seperate income is sufficient for the maintenance of the petitioner. If not, the application should be allowed, though in fixing the quantum of maintenance, the court will take into consideration the seperate income of the petitioner along with other relevant circumstances. 

The expression 'unable to maintain herself' does not include her potential earning or capacity to earn. Even if the wife is a MBA Graduate but she did not take any employment, for the sake of her family.  If her husband neglects to maintain on the ground that she is highly quaiified and capable of earning, the husband is liable to maintain such a wife who is unable to maintain herself having no separate income of her own.  This view was taken up in the case of Tejaswini vs. Aravinda Tejas Chandra AIR 2010 (NOC) 228 (Kant)

Mere fact that the wife has qualification is not sufficient ipso facto to conclude that she is in a position to maintain herself. The wife is not liable to plead specifically that she is unable to maintain herself.  But the averment by her that she is surviving with difficulty is  sufficient proof that she is unable to maintain herself.

By going through the query and the circumstances r/w the author's evidences in hand it is clear cut case of desertion by an erring wife.

Now, by going through sub sections of 125 crpc,

It is well settled law that a wife can't get maintenance until it is proved that husband has willingly not taken the responsibility of wife and thus,he had stopped looking after her basic needs,if she is unable to maintain herself.

The above explanation moves differently in each case pertaining to facts and circumstances of the case.

Hence, the views expressed on this particular query by Mr. Bishwanath rRy is quite obnoxious.

Reasoning:

1. The case which he is amplifying is already considered after the amendments.

2. In that particular case also the courts adjudication was based on "inability of wife to maintain herself"

3. So,here the inability of maintaining the author's wife doesn't lies under the circumstances within the vicinity,as she has herself walked away causing a desertion to her husband.

4. In the citations as below:

729028431_damanreet_kaur_vs_indermeet_juneja_&_anr_on_14_may   _2012.pdf 729028431_smt. mamta jaiswal vs rajesh jaiswal.pdf

it is very well ruled that a capable and well educated wife who had willingly stopped working just for the sake of maintenance can't be allowed maintenance considering her unemployment.

5. The author of this particular thread has a convincing case in his hand to oppose the suit of 125crpc pending before him and make it dispose without any adverse order on his part.

6. Further, I would like to say that maintenance is not merely decided on the words of a wife but it has to be proved beyond doubts that what she is asking is actually lawful and in the existence of the respondent or not.

So, I totally disagree with the views and points raised by Mr. Roy. He is simply mistaken by the virtue of an infringed and vandalism say "A women's words are like Gangajal,where ever she pours the things become pious".

But,sorry it is not so easy in each and every cases, when there is an evidence to nullify her immoral quest.

PS: The author of this thread can use his evidences and relevant citations along with a a suit of sec-9 HMA to win this 125crpc against her wife.

ESIS