Maintenance 125(3) executions, 127 & perjury

Why are you not filed RCR sec9 of HMA and sec 125(4) of crpc yet. I think you are not defending your case to avoid the maintenance from the begining. There are are lot of SC and HC judgements are available to "NO Maintenance" if wife deserts you without any reasonable cause. I am not under stand what was going in your mind?

Dear Manoj,

Thanks for your comment.

I had filed RCR Section 9 in the begning when there was no FIR or other case filed by my wife.

In that Sec-9 case she came back to matrimonial home on the ery first date & in Order sheet ADJ wrote that "Wife said she will not do any act that hurts her inlaws members. Also she will adjust in the family & respect everyone." Then my lawyer asked for 1 more date for Sec9 but no 1 went in the court from either side & case was disposed in default.

Now in my Sec127 application i had already attached the Section 9 order to be read in respect to section 125(4) along with her past 4 years employment Record & 9 months salary statements which she used to persue till the month of marriage.

And these things were never raised by my earlier lawyer thats the reason i had suffered alot.

What do you suggest now ?

Thanks..

One point is not clarified from the above conversations.  Whether the wife will get any punishment for committing perjury.

Nothing to add more.

Hello Ravinder,

In this earlier the MM was threating the wife saying that "If wife has made false statement & hided the facts then she will return the Maintenance amount to husband & will be punished under perjury."

But in 1 of the previous date when husband putted the facts like wifes salary statements (certified copy) then the MM was quite & didn't say even 1 single word against wife.

Lets see & hope for the best for husband.

thanks..

So you are planning to get back the money what you have paid?

Dear Helping Hand..

Thanks for your post.

In this case wife attained IM order by concealing her previous 4 years of employment before marriage.

Even Revision court upheld the revision as wife previous salary details were not available with husband & in criminal revision as well wife's lawyer didn't file WS so as to avoid accepting her previous working as mentioned in my Revision petiton.

Husband got the certified bank salary statement of wife in July 2012 in certified chargesheet in 498a case.

Now I want your advice / suggestion in next course of action :-

Situation is :-

       Husband Filed Stay Application in year 2011

                    Husband filed stay application in Trial , Session & in High Court that the 1st execution Filed                     by wife  for 33 Months was delayed in filing for 16 days & hence time barred under                                      limitation act.

      Result

                     But all the courts had rejected husband's application stating that 6 montths of time was                             given to husband in  IM order to clear the arrears. So no Stay was granted ever.                                            But in the above said Limitation act Trial court partly allowed husband plea stating that 31                      months of execution is well within limitation. 

         Executions Details:-

                     1st      Execution for 33 Months.

                     2nd   Execution for 6 Months.

                     3rd   Execution for 6 Months.

                     4th   Execution for 10 Months.

In 1st execution husband which is of 33 months has paid for 29 months.

Husband had already filed application u/s 127 after 1st execution & pleadings are complete as on today. Husband also filed application u/s 340 crpc & thier reply is expected.

Stay Application by Husband in December 2012

            Husband moved the stay Application on executions in December 2012.

              Grounds :-

                         1. Husbands 127(1) application must be treated as Defense in 125(3) proceedings.

                         2.  Wife has mislea the court & attained the IM order in her favor by Concealment. &                                         attached wife's CV & Certified Bank Salary Statements.

Trial Court order is awaited in this month..

In coming july 2013

                      Main Petiton date is coming where Wife side reply u/s 340 is expected.

                      127 further proceedings will continue. PE cross is still awaited.

Course of Action to Recover / Adjust the Excessive amount paid by husband.

1. Husband has got  citation that clearly states that :-

     Rajasthan High Court Citation link :- 

              [The Court held that the first proviso to Sub-section (3) of Section 125 Cr.P.C. is clear                 and unambiguous. ……… There is no right conferred to the Court to enforce arrears of               more than one year arrears.]

2. Another Supreme Court Citation that clearly held that :- Order achieved by fraud is a nullity & is                unsustainable even in colletral proceedings. Attached file is SC - Order can be challenged in                  Colleteral Proceedings as well.pdf.                   

3.  Delhi High Court Held that in citation attached as                                                                                                               Poonam_Khanna_vs_V_P_Sharma_&_Anr_on_30_January,_2012.PDF

                      ["6…….. The affidavit may be treated as supplying prima facie proof of the case                          of the applicant. If the allegations in the application or the affidavit are not true, it                          is always open to the person against whom such an order is made to show that                            the order is unsustainable."        

                        “12…..It is pertinent to mention here that there is no mode of recovery, if later                              on it is found that respondent / wife has sufficient means to maintain herself.”]

4.    In this present case wife in her petition & in her Evidence affidavit file in May 2011 stated herself               as a housewife & concealed about her before marriage jobs of 4 years of tenure..

=====================================================

What should husband do now

1.  Shall husband file an application that Wife 1st execution is of 33 months & as per Rajasthan High           court , No court can recover maintenance beyond 12 months.

      And in this over payment beyond 12 months must be given back to husband or must be adjusted         in other subsequent executions.

2.  Challange the IM Order of year 2010 by using Supreme Court & delhi High Court citation as                    attached. As husband got the Wife's salary details in July 2012.

Kindly share your thoughts with relevant sections & citations.

Dear Helping Hand..

Thanks for your post.

In this case wife attained IM order by concealing her previous 4 years of employment before marriage.

Even Revision court upheld the revision as wife previous salary details were not available with husband & in criminal revision as well wife's lawyer didn't file WS so as to avoid accepting her previous working as mentioned in my Revision petiton.

Husband got the certified bank salary statement of wife in July 2012 in certified chargesheet in 498a case.

Now I want your advice / suggestion in next course of action :-

Situation is :-

       Husband Filed Stay Application in year 2011

                    Husband filed stay application in Trial , Session & in High Court that the 1st execution Filed                     by wife  for 33 Months was delayed in filing for 16 days & hence time barred under                                      limitation act.

      Result

                     But all the courts had rejected husband's application stating that 6 montths of time was                             given to husband in  IM order to clear the arrears. So no Stay was granted ever.                                            But in the above said Limitation act Trial court partly allowed husband plea stating that 31                      months of execution is well within limitation. 

         Executions Details:-

                     1st      Execution for 33 Months.

                     2nd   Execution for 6 Months.

                     3rd   Execution for 6 Months.

                     4th   Execution for 10 Months.

In 1st execution husband which is of 33 months has paid for 29 months.

Husband had already filed application u/s 127 after 1st execution & pleadings are complete as on today. Husband also filed application u/s 340 crpc & thier reply is expected.

Stay Application by Husband in December 2012

            Husband moved the stay Application on executions in December 2012.

              Grounds :-

                         1. Husbands 127(1) application must be treated as Defense in 125(3) proceedings.

                         2.  Wife has mislea the court & attained the IM order in her favor by Concealment. &                                         attached wife's CV & Certified Bank Salary Statements.

Trial Court order is awaited in this month..

In coming july 2013

                      Main Petiton date is coming where Wife side reply u/s 340 is expected.

                      127 further proceedings will continue. PE cross is still awaited.

Course of Action to Recover / Adjust the Excessive amount paid by husband.

1. Husband has got  citation that clearly states that :-

     Rajasthan High Court Citation link :- 

              [The Court held that the first proviso to Sub-section (3) of Section 125 Cr.P.C. is clear                 and unambiguous. ……… There is no right conferred to the Court to enforce arrears of               more than one year arrears.]

2. Another Supreme Court Citation that clearly held that :- Order achieved by fraud is a nullity & is                unsustainable even in colletral proceedings. Attached file is SC - Order can be challenged in                  Colleteral Proceedings as well.pdf.                   

3.  Delhi High Court Held that in citation attached as                                                                                                               Poonam_Khanna_vs_V_P_Sharma_&_Anr_on_30_January,_2012.PDF

                      ["6…….. The affidavit may be treated as supplying prima facie proof of the case                          of the applicant. If the allegations in the application or the affidavit are not true, it                          is always open to the person against whom such an order is made to show that                            the order is unsustainable."        

                        “12…..It is pertinent to mention here that there is no mode of recovery, if later                              on it is found that respondent / wife has sufficient means to maintain herself.”]

4.    In this present case wife in her petition & in her Evidence affidavit file in May 2011 stated herself               as a housewife & concealed about her before marriage jobs of 4 years of tenure..

=====================================================

What should husband do now

1.  Shall husband file an application that Wife 1st execution is of 33 months & as per Rajasthan High           court , No court can recover maintenance beyond 12 months.

      And in this over payment beyond 12 months must be given back to husband or must be adjusted         in other subsequent executions.

2.  Challange the IM Order of year 2010 by using Supreme Court & delhi High Court citation as                    attached. As husband got the Wife's salary details in July 2012.

Kindly share your thoughts with relevant sections & citations.

@Rahul

The burden of proof lies only on the husband, for both 

1.  Showing your income details [in order to prevent judge from passing some one-sided order regarding maintenance]

2.  Showing her income details [in order to disable the judge from ordering maintenance/alimony]

Without which the court has full power to order what the wife has asked, when no objections are filed from the husband.

Both Rajasthan and SC citations should be used.

Make sure that its not just filing these citations along with the application, forceful pleading is most important thing which is needed.

Further, if your wife is currently working and you are not aware of her employment details, you should be asking for appointment of Court Commisioner, who will look not only into, her employment details, but also get details of property in her name, fixed deposits in her name etc.

Please also make use of this citation too which is as follows:

M No. 28/07

Sh. Neeraj Aggarwal – Petitioner

Vs.

Mrs. Veeka Aggarwal – Respondent

“Section 24 – Pendente Lite Alimony : Purpose of Enactment : Not meant for supporting idle (Qualified) spouses waiting for ‘Dole’ to be Awarded by her husband – Section 24 has been enacted for purpose of providing monetary assistance to such spouse who is incapable of supporting himself/ herself in spite of sincere efforts – Spouse well qualified to get service immediately with less efforts is not expected to remain idle to squeeze out his/her purse by cut in nature of pendent elite alimony – Wife well qualified woman possessing qualification like M.Sc., M.C. M.Ed – How can such a lady remain without service – lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and put her burden on husband for demanding – pendente lite alimony from him during pendency of matrimonial petition.”

Dated : 19.09.2007

Justice Shiv Narayan Dhingra judgment

Dear Helping Hand,

First of all thanks a lot for your prompt reply. God Bless you for your helping nature.

At present as mentioned by me that Trial Court will give the decision on my application for stay in executions on the ground that Wife Concealment & 127(1) must be treated as defense in 125(3).

Also i filed the Citations referred by you i.e. Neeraj Aggarwal & other relevant citations stating that Capable ex working woman cann't take maintenance.

Also Filed written submissions along with Points to be considered / Argued with Citations as below.

============================================================================

Brief: - The below points were not called or putted in earlier proceedings hence requested by Respondent (husband) to be considered in the interest of justice.

1.     In 125(3) Cr.PC, Maximum 1 year of Arrears can be recovered.                                                                                             [To be Read with Rajasthan High Court Order]

         Plead the court to adjust the excessive payment in subsequent executions.

2.     125(4) & 125(5) Cr.PC i.e. No wife shall be entitled for maintenance if she refuses to live with her              husband without reasonable cause.                                                                                                                                                        [To be read with Delhi High Court Anticipatory Bail Order  dated 28-5-09 in which                                           specifically denied to join husband in matrimonial as well as other rented house.]

3.      Judgment or decree obtained by playing fraud on the court is a nullity and can can be challenged          in Colleteral Proceedings.       [To be read with Supreme Court Citation]

4.      127(1) Application must be treated as a defense in 125(3) proceedings                                                                                [To be Read with Bombay High Court Citation AY Samant vs Suparna Ashok samant                                 27-7-1990.]

5.       Capable Working Woman does not deserve any Maintenance from Husband.                                                                                     [To be Read with 13 relevant citations]

======================================================================

So if Trial Court in my stay application considers the above points then it will be good but in case trial court does not consider then what is the way out to adjust the over paid Execution amount till 127(1) decision so to avoid 125(3) pain. 

Also Sir as stated by you 

"Make sure that its not just filing these citations along with the application, forceful pleading is most important thing which is needed."

1. What type application should i file & in which section along with Rajasthan High Court  & Supreme         Court Citation. And how to make Trail court bound to adjust the excessive payment in 1st execution       in subsequent executions till husband's 127(1) orders. 

2.  Please put some light on forceful pleading procedure.

Thanks in advance. Sir awaiting your guidance as a hope of light.

Originally posted by : Rahul
	"Make sure that its not just filing these citations along with the application, forceful pleading is most important thing which is needed." Application what you intend to file, nothing more than that.  You are proceeding in the right direction. 1. And how to make Trail court bound to adjust the excessive payment in 1st execution       in subsequent executions till husband's 127(1) orders.  Forceful pleadings. 2.  Please put some light on forceful pleading procedure. Cannot give explanation about that. it all depends on your lawyer's skills combined with your plea, when you are asked to speak.   Thanks in advance. Sir awaiting your guidance as a hope of light.

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