Is it possible to reduce the interim maintenane

1. If S. 18 HAMA is dismissed and not Appealed then the dismissal has become final so same grounds cannot be challenged in Appeal before HC which is one.

2. If divorce petition was in your favor and during its pendency some interim maint. under S. 24 HMA was prime facie awarded then once decree sheet prepared the interim maint under S. 24 HMA also closes unless arrears not paid. That is the shelf life of S. 24 HMA and under no circumstances it should override decree. However she might have filed application under S. 25 HMA whose notice your side may not have taken thus this HC Appeal she managed to get admitted and thus seeking same relief as earlier granted under S. 24 HMA to be continued as relief under S. 25 HMA and is called smart reverse engineering of hers.

If that is so then HC will hear parties and remand the case back to adjudicate only for S. 25 HMA as per Law is our view unless something we are missing in your first brief before us.

Now if you claiming yourself to be student then have you submitted an affidavit with proof of you being student at lower court as material record is two?.

Further once you claim yourself dependent upon earning of your mother then have you submitted an proof affidavit on behalf of dependent mother about her income and her other liabilities in trial court as material record is three?

If above last two are missing from material records of already decreed trial court records then place them under reply atleast before HC this time and also pray for making your mother as necessary party is four. Why she has to be made necessary party is for a simple reason she during pendency of S. 18 HAMA as well as your Divorce read with S. 24 HMA was meeting married son’s expenses and the then married son was solely on her mercy.

But now situation has changed / change of circumstances is five.

If / Once she is also made as necessary party then via your mother ask her to express clearly before HC that she is not interested anymore in supporting her son (i.e. her divorcee son) point blank citing his bad marriage read with his divorce status and somehow she as a woman is pulling her life in these inflation times and she have given enough education to her son and even at one point of time agreed to his marriage too and now he can help himself by polishing shoes in street to support himself.

Harsh words should spell out from your mother in HC is the point here.

Also ask your mother to debar yourself by ban notarized affidavit and ask her to place the same in HC file which should be done before filing reply to the Appeal.

Above are some suggestion solely based on probably an incomplete query of yours as we still fail to understand "grounds" she took post dismissal S. 18 HAMA and decreed divorce read with S. 24 HMA lifetime being over as dismissed and if above are not conducive as reply you were expecting then you need to express more reading from her HC Appeal petition so that matter becomes more clear to repliers here and probably totally different reply it generates than what is expressed above???.

Right now we are not paying attention to grounds of dismissal as narrated to us in your brief as we first need to understand "grounds under which her Appeal got admitted in HC".

Now the last question which you asked about minimum / maximum we would say a "student and or un-employed" husband is not liable to maintain his wife or even to his ex wife provided there are no movable / un-movable on his name assets. Certain Judgments of various HC says so and can be used for persuasive pleadings dependent upon your HC.

Suggested to re-read calmly all above there are some intentional harsh wordings here and there used then fire at us your best facts reading her Appeal petition we are here to solve your interesting query not make enemies in one stoke..........

Dear Sir,

Thank you for the reply.

Sorry for the incomplete information in my query above for which I got the above incomplete reply as you have rightly noted.

Circumstances are as below:

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Sir, on your question regarding appeal -----> Wife appealed in the High Court on the main maintenance (u/s 18 HAMA) case only and during the pendency of the main case at highcourt,

she is asking for the continuation of the interim maintenance that was awarded u/s 24 HMA by family court  earlier. Though, the interim stops after the disposal of the main maintenance

case u/s 18 HAMA (24 HMA was filed within 18 HAMA and not in the divorce case) as she has appealed in the high court and until the high court takes decision on the main case, she wants

continuation of the interim that was awarded in the lower court. (My question is, if due to my bad luck, if HC judge decides to grant her continuation, then is it possible to reduce the amount as

new grounds have arrived, since the interim was ordered  earlier?)

The main case u/s 18 HAMA was dismissed by the Hon'ble family court stating that it didn't find any merits in her allegations and also due to her desertion, also she is highly qualified girl (MBA).

Her allegations were, husband is impotent and due to his impotency only she is staying separately from her husband and except on the ground that husband is impotent, there is no other reason for

her to live separaly from her husband and she is not interested to live with her husband even if husband proves himself potent by medical board. Later, medical board found husband to be potent and as her

main reason to live separately from husband is disproved, that drastically weakened her case, though she alleged cruelty due to impoteny (i.e biological inconvenience), this lost force as the husband

is found potent by medical board.

Now, wife appealed in the HighCourt saying that the lower ourt wrongly come to conclusion that there is desertion on her part as she has not stated either in her petition or in affidavit and also on the 

ground that she has no income of her own and depending on her parents for her living and her parents being aged are unable to support her.   

The case is not yet admitted, I only received a showcause notice from the Hon'ble HC, asking me why it should not be admitted, for this in the next week case is coming for hearing and so I wanted to 

know how to go about this case as people are saying that normally HC would admit the cases and award her the continuation of interim maintenance until the disposal of the main maintenance case

at HC.

So, please clarify my below questions sir and anything you say in addition that helps me I would be grateful sir.

My questions were:

(1) As new facts have arrived now and which are on record, is it possible to reduce the amount Rs.5000 interim maintenance to a lower level to lessen the burden of payment at that rate as I'm currently jobless now? (if the Hon'ble high court so decides to grant the interim mainteance)

(2) What is the lowest maintenance that can be awarded u/s 24 HMA (in main case of sec 18 HAMA)?

(3) Since main case is already dismissed at lower court, what factors do they consider before admitting the case at highCourt?

Regards

Dear Sir,

Thank you for the reply.

Sorry for the incomplete information in my query above for which I got the above incomplete reply as you have rightly noted.

Circumstances are as below:

------------------------------------------------------

Sir, on your question regarding appeal -----> Wife appealed in the High Court on the main maintenance (u/s 18 HAMA) case only and during the pendency of the main case at highcourt,

she is asking for the continuation of the interim maintenance that was awarded u/s 24 HMA by family court  earlier. Though, the interim stops after the disposal of the main maintenance

case u/s 18 HAMA (24 HMA was filed within 18 HAMA and not in the divorce case) as she has appealed in the high court and until the high court takes decision on the main case, she wants

continuation of the interim that was awarded in the lower court. (My question is, if due to my bad luck, if HC judge decides to grant her continuation, then is it possible to reduce the amount as

new grounds have arrived, since the interim was ordered  earlier?)

The main case u/s 18 HAMA was dismissed by the Hon'ble family court stating that it didn't find any merits in her allegations and also due to her desertion, also she is highly qualified girl (MBA).

Her allegations were, husband is impotent and due to his impotency only she is staying separately from her husband and except on the ground that husband is impotent, there is no other reason for

her to live separaly from her husband and she is not interested to live with her husband even if husband proves himself potent by medical board. Later, medical board found husband to be potent and as her

main reason to live separately from husband is disproved, that drastically weakened her case, though she alleged cruelty due to impoteny (i.e biological inconvenience), this lost force as the husband

is found potent by medical board.

Now, wife appealed in the HighCourt saying that the lower ourt wrongly come to conclusion that there is desertion on her part as she has not stated either in her petition or in affidavit and also on the 

ground that she has no income of her own and depending on her parents for her living and her parents being aged are unable to support her.   

The case is not yet admitted, I only received a showcause notice from the Hon'ble HC, asking me why it should not be admitted, for this in the next week case is coming for hearing and so I wanted to 

know how to go about this case as people are saying that normally HC would admit the cases and award her the continuation of interim maintenance until the disposal of the main maintenance case

at HC.

So, please clarify my below questions sir and anything you say in addition that helps me I would be grateful sir.

My questions were:

(1) As new facts have arrived now and which are on record, is it possible to reduce the amount Rs.5000 interim maintenance to a lower level to lessen the burden of payment at that rate as I'm currently jobless now? (if the Hon'ble high court so decides to grant the interim mainteance)

(2) What is the lowest maintenance that can be awarded u/s 24 HMA (in main case of sec 18 HAMA)?

(3) Since main case is already dismissed at lower court, what factors do they consider before admitting the case at highCourt?

Regards

Interesting query after long time which is before us.

"She cannot have it both ways" J

Revolve your side's admission arguments around just above. Ignore thinking reduction etal. It is suicidal and you will hurt Men’s Rights Activists statistics greatly if you still think on reduction once divorce decree in hand read with dismissed S. 18 HAMA etc. J

You will highly succeed if you use below silver arguments if still not understood the logics we are using.

Resoning:

We know S. 18 HAMA is standalone Application and has no shelf life.

We also know S. 25 HAMA reads as follows;

25. Amount of Maintenance may be altered on change of circumstances:

The amount of maintenance, whether fixed by a decree of court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.

We also know that the Court which has already heard her S. 18 HAMA petition i.e. her allegation which are “husband is impotent and due to his impotency only I am staying separately from my husband and except on the ground that husband is impotent, there is no other reason for me to live separately from my husband and I am not interested to live with my husband even if my husband proves himself potent by medical board" at length and after perusal of all material records has given a speaking Order which says “did not find any merits in her allegations and also due to her desertion, and she being highly qualified girl (MBA) we donot find merit in her allegations hence dismissed" has the power conferred to alter the prior decree or agreement and same Court definitely includes a power to annul the same if the circumstances so requires so.

But here she never got maint. under S. 18 HAMA at all nor there is any agreement between spouses instead she has causted allegations which are mentioned above so how she can be allowed to admit an Appeal under this Act (HAMA)!

We also know Overriding effects of both HAMA as well as HMA Act. The HMA Act overrides HAMA here.

Now there are two ways to look at her agitation;

One - We also know that in case an order of maintenance is obtained by the wife under S. 125 Cr.PC, a subsequent cohabitation between them would not invalidate the decree, but here she herself says even husband (in a subsisting marriage or decreed as divorced) is potent or impotent it is not her case be it so this is my case under S. 25 HAMA r/w Art. 226/227 COI Vs. S. 24 HMA J

The principle is whether there has been resumption of cohabitation so as to demolish the effect of the divorce decree obtained under HMA ! That is whether there has been resumption of the cohabitation or not does not depend upon the duration of the stay or inclination to cohabit. It rather depends on the animus of the parties and their mental attitude in coming together again but here the lady clearly says what she has to say and her say are self explanatory as per her own allegation paras that they are not planning to come together even at the time of subsisting marriage or post decree except that I have a right to take second frivilious ground and says "to transfer already decreed ad-interim maintenance amount awarded under earlier S. 24 HMA to another civil side maint. case which stands already dismissed because of two vexatious merit grounds that I am taking “that lower Court wrongly come to conclusion that there is desertion on her part as she has not stated either in her petition or in affidavit and also on the ground that she has no income of her own and depending on her parents for her living and her parents being aged are unable to support her".

Two - Once S. 18 HAMA is dismissed challenge is possible on its dismissal on Law points only i.e. merits points and not like transfer ad-interim civil maint. which was awarded elsewhere and later decreed due to main case (as divorce decree) to that under this dismissed case i.e. S. 18 HAMA means you are trying to act smart and telling alleged to be thumb sucking OP’s advocates you got some b'day present this year so next year and till your grave same present you will have to get I mean how would you like that ground to sound like !!!!!!!!!

But, if there is a cohabitation i.e. implied / expressed / mentioned by action or words, the earlier cause of action, on the basis of which the decree was obtained would vanish and as such the decree would become a nullity and in those circumstances, for a fresh cause of action the wife should initiate fresh proceedings for maintenance. But the Hon'ble SC in the latest judgment in Ref.: Mahua Biswas vs. Swagata Biswas, held that such a course would cause a great hardship to the wife by unnecessarily prolonging the litigation between the husband and wife.

Now what the Hon'ble HC has to see from the above two sets of reference - one on criminal side and the other two which are on civil sides whether there is any difference between the decree obtained on civil side under Divorce with ad-interm awarded (allowed) S. 24 HMA and the order obtained on the civil side under S. 18 HAMA that is all what Hon’ble HC is interested to hear to admit or dismiss her Appeal.

Further but it will now be diffuclt for even Hon’ble HC to set aside the allegations and speaking order of trial Court bze it was already got proven and she is admitting she will never ever stay with husband an don top divorce between parties already happened.

Regarding her second plea of parents poorest of poor etc. for that she has no choice left now as even under S. 125 CrPC she cannot claim it post divorce and post proff of desertion unless on the contrary as all Hon'ble HC's have produced two views to same side of coin unfortunately !!!!.

So relax.

So brother that is why she is mentioning and I quote you now " that lower Court wrongly come to conclusion that there is desertion on her part as she has not stated either in her petition or in affidavit XXX………."

But animus is proved. Was her side blind / deaf and dumb not to argue against desertion which she herself states clearly in alegation that she does not wish to cohabit before and after. So what else she could have differed and wanted trial court to bend over heels and place before her on a silver plate and for what ?

Also note I think till 2009 various Hon’ble HC’s as well as Apex Court have given clear Judgment stating “for a deserted wife – no maintenance” So even if your side places one by one those Judgments operating parts (which are from both criminal as well as civil maintenance sides) the Appeal will get dismissed as similarity of maintenance is same in criminal as well as civil side (the intent and object revolves around women n child best protection under Art. 15 (3) COI hence citations of both sides can be interchanged) remember to recall that during arguments as I distinctly remember Jstc. Manmohan of Hon’ble D HC grilled us some years ago on proving why should not the legislative difference in criminal and civil maintenance be taken into account and dismiss your case for which our vehement arguments were same as being hinted to you as in above underlines.  

We cannot prepare you more than above in a free forum he he.

Now we got you why you are in trouble.

Thank you sir your detailed analysis and the arguments to be presented will hopefully help me.

I will let you know the result (admitted or not admitted).

Regards