Kumar (Software Engineer) 13 September 2014

Divorce and maintenance query

Hello esteemed lawyers,

I have a query regarding divorce. This post is bit long, but hope people dont mind.

My cousin sister is 28, and has a kid of 6 years. When in college she went and did lover marriage with a person ( of different caste) , and she fled home. My uncle , her father is a group D employee in central government organisation , she refused to come back home, finally when she became pregnant , her marriage was registered by my uncle.

Later she came to know about her husbands actual behavior, he was a womaniser and go after many women ..My cousin tried to correct him, filed a police complaint against his paramour , but he would be allright for few months and again go after some other woman. Finally in 2012, my sister started living seperately with the help of her parents.

Now the real shock came few months back when she was diagnosed with stage 4 kidney cancer. This costed 2 lakhs for initial surgery , my uncle, me and her husband bore these charges. But now she needs 50K of medicines every 2 weeks , as my uncle has finished all this savings, we are looking for alternative. There is a provision in my uncles organisation that govt pays for medical expenses for the children and divorced daughter who is dependent on the employee. So we asked her husand to apply for divorce to which he readily agreed as he is married to other woman and she is pregnant now.

Now my cousin has recieved a divorce petition which consists of 4 pages of accusation against my cousin, full of lies. When asked he says, it is written by his lawyers, and as we wnat divorce we should accept it. But my cousin is worried about maintenance monry to look after her son . But the fact is if there is a maintenance clause mentioned in divorce order, she wont get the medical expense reimbursement

My question is:

1) If she agrees to his petition which is full of lie, will she have any problem filing maitenance petition. later?

2) Is it ok to not ask for maintenance during divorce and ask for maintenance later in seperate petition?

3) He earns a salary of 20K/month and he has no other property, so how much maintenance can she get considering she is living in expensive city bangalore.

Thanks a lot, Appreciate your help.

Regards,

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2 Replies

Tajobsindia (Senior Partner ) 14 September 2014

1. In my opinion first check ‘dependent’ age from your Uncle’s Department who receives family medical treatment expenses correctly, least it later backfires before proceeding on divorce.

2. Without divorce he could not have married again. You tell me in your brief that he is already got himself re-married without divorce and second wife is pregnant, check facts again as the moment now he files for divorce from first wife he is mentioning statutory facts in-correctly in divorce petitions and committing perjury is my view.

3. You are right the moment maintenance is mentioned in a divorce decree Department will not consider her to be dependent to employee.

4. If she agrees to allegations paras without claiming maintenance and parties gets divorce she can still file S. 125 CrPC Application post divorce and seek maintenance as his divorced wife.

5. The family needs to first check para 1 and para 2 factual correctness of facts mentioned in this brief first then make a call she should or should not seek maintenance.

6. If she is not working and not earning an income r/w her medical condition and further r/w a minor of parties she can receive close to half of his declared income as maintenance for herself and parties minor and she can still claim some extra as one time money under litigation expenses being a medically ill spouse.

Ideal course based on presented brief may be as follows;

A. Contact https://www.vaidyashri.com and get her better quality of life.

B. Get proof of his second marriage (there should be religious ceremony or marriage certificate) in a subsisting marriage. Get proof of pregnancy of second wife.

C. File Criminal case of Bigamy on her husband based on para B facts. She can file the case or her father can file such case as being her lineal ascendant.

D. If para A does not bring her quality of better health results in next 90-120 days then the Bigamy Complaint case charges will get her atleast divorce in her own terms. A womanizer may seek multiple partners in life hidden in tryst but always fears brush with Criminal Law of the land.

E. Seek information from Govt. Department about actual limit of medical expenses for a "dependent" as I believe it is mostly limitless but still seek such information. Post divorce on grounds of proving Bigamy (if presented proof of his second marriage were strict and of sufficient quality) then donot file maintenance case for your cousin but seek Govt. Department medical treatment on grounds of her being your Uncle's dependent by showing her divorce decree on grounds of her husband's bigamy and yet file maintenance case on behalf of minor child of parties under S. 125 CrPC by being child's guardian and in such case it is seen the minor gets slightly more than 1/3rd. of declared income of his natural father as maintenance till minor turns major..

Kumar (Software Engineer) 16 September 2014

Thanks a lot TajobsIndia sir for your valuable reply and really appreciate for spending time replying . You have given ideal course, but I am not sure it is a very good idea to file a divorce based on Bigamy because 1) His second marriage is not official, so it is hard to collect proof of his marriage although we have recording of him talking about his other wife 2) He is going to contest it which would dealy the proceeding further which means medical expense will shoot up

But thanks for letting us know that even if we accept the divorce petition now, which will help us to get divorce quickly , we can always file a petition for maintenance later on for the kid's education.

Specilal thanks for vaidyashri link, but not sure if they give medicines remotely as we live in Bangalore and vaidyashri is in Delhi.