Maintenance - how it would be decided

In the query it  is categorically stated that wife has filed dowry, 498A,406,506 IPC. AND 125 Cr.PC  which is significant.   The allegations made by the wife against her husband clearly indicates that due to alleged circumstances it was difficult for the wife to live with her husband  and that lead her to leave the matrimonial place. Such action took up by the wife does not constitutes the meaning of desertion.

 CRIMINAL DESERTION MEANS  one spouses willful failure without just cause to provide for the care, protection or support of the other spouse. According to family law DESERTION means willful and unjustified abandonment..

In the case of Rajathi vs. Ganeshan reported in AIR 1999 S.C. at page 374 stated " when the husband is making  it difficult for the wife to live with him then he is refusing and neglecting to maintain her when she is forced to live elsewhere."

In the subject case the allegations made by the wife against her husband  as aforesaid sufficiently proves that it was difficult for her to live with the husband and forced to leave her matrimonial place.which in fact cannot be construed as desertion.

The criticism made by Learned Mr. ESSIS in regard to my views on the subject is apparently palpable.

@querist,

My advice to you:
1. See if you can reason with your lawyer to take interest in your case or change him altogether. From what you've told and from the guidance that's available to you in this thread from all, you can very well determine that perhaps your lawyer may not be best suited to your interests. It's your decision though since I'm not aware of your exact circumstances.
2. Although the contrasting viewpoints, of Mr. Biswanath and those of ESIS, Victim and others are equally valid, you must pick words of wisdom from all of their experience and not get swayed by a singular viewpoint.

A convincing argument from your side must include these:
1. Focus on desertion - If these words - "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" are indeed verbatim in recording then I find it hard for any sane Judge to give more weightage to pending and subject to trial by strict proof cases such as 498a/406/506/DV  simply because the quality of this evidence (if submitted properly) should convey enough to tilt the balance in favour of the view that desertion was due to mala-fide intentions than otherwise. If she cannot present any concrete contrasting evidence then preponderance of probability favours you which is the norm in Civil cases.

2. Focus on her past employment and ability - ESIS and Victim have already told you.

3. Mention the precedence cases as highlighted.

Biswanath Sir, would you agree with "1. Focus on desertion" now?

On the question of desertion wife may depose that she was mentally and physically harassed and assulted by her in laws and her husband abated their wrongs that compelled her to leave her matrimonial place and under such a situation she said her husband over phone that she is willing to live with the husband at a separate place other than matrimonial house, can such deposition be treated as illogical  by the court and can it be treated as desertion.  In a case all the allegations of the petitioner cannot be proved by direct evidences some also may place before the court as circumstantial evidences when probabilities are also to be considered to arrive at a fair judgement. I REITERATE THAT THE SUBJECT CASE IS NOT A DESERTION. AND STILL I HOLD MY VIEWS ARE CORRECT.

Dear Mr. Roy we all value your experience and contribution on this forum. Sir, kindly guide us in such cases what can be done to avoid/reduce maintenance.

thanks in advance.

@ Mr.Victim,

I shall be out of station today and shall be back on 26th. of this month. wait till then.

Sure sir I will wait. Have a safe and happy journey.

On the question of desertion wife may depose that she was mentally and physically harassed and assulted by her in laws and her husband abated their wrongs that compelled her to leave her matrimonial place and under such a situation she said her husband over phone that she is willing to live with the husband at a separate place other than matrimonial house,

Opinion: Dear mr. roy again you are mistaken with the allegations led by the wife against her husband and her in-laws. These allegations already been filed in terms of a criminal suit pending before the court of cjm in the local jurisdiction of the author's wife. Hence, the allegation led by her is of an offence of 498a,and other cases which were drafted by her lawyer. So, here mere allegation will not act as a settlement to grant her maintainenance.

Reasoning:

Now the allegation has been turned into a suit which is of criminal nature, hence the magistrate will not act mere words of an aggrieved. As, the trial is necessity to drive on such outcome where she was really forced by her husband or by her in-laws to stay away from her conjugal relationship under the one roof along with her husband.

I again affirm with my reply,that this case will not be adjudicated on mere allegations or mere say of the wife.

Maintenance is the matter of burden existing on respondent to pay her if the allegation turns to be real against the respondent. If not, then mere wife words are not enough to grant any maintenance to her. This is not DVA case where the judge has discretion to grant maintenance without considering the fact.

This is 125crpc whose provision is directly held by the mechanism of cr.pc,thus all the procedure of a criminal case needs to be heard from both sides before delivering any judgement on this regard.

can such deposition be treated as illogical  by the court and can it be treated as desertion.

Opinion: Same as above and the deposition is not treated as evidence for any case. It's mere a platform to create a magistrate to take cognizance of case or not, leading the case to be decided on it's evidences,cross examinations,arguments etc.

So,by an experienced and aged lawyer like you who treats deposition of a complainant as evidence is quite ridiculous and irrational.

 In a case all the allegations of the petitioner cannot be proved by direct evidences some also may place before the court as circumstantial evidences when probabilities are also to be considered to arrive at a fair judgement.

Opinion: That's what mr. roy Iam telling to you.

It is a due course procedure where the complainant has to prove his allegations to get the relief prayed under the petition.

I REITERATE THAT THE SUBJECT CASE IS NOT A DESERTION. AND STILL I HOLD MY VIEWS ARE CORRECT.

Opinion: Ok. so you are an astrologer who knows the cases by mere reading of allegation that what wife is saying she stand correct without her evidences.R.O.F.L.

PS: Sometimes an ego of an experienced lawyer becomes a thin liner distinction between distraction of the actual case in hand and the case which is irrelevant in others hand.

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To,

All fighter's of maintenance cases,

Dear friends and victims of  Biased Law.Following are the 10 Best way to reduce or eliminate The maintenance/Interim maintenance from your shoulder.If all the tips and Points are used actively before or during the procedure then certainly you are going to save your hard earned money from forced charity so called as maintenance to your wicked wife who is willingly made as a parasite with the help of Biased Law.

Kindly, go through the following link:

https://everysuffererisasaviour.blogspot.in/2014/01/10-best-way-to-reducedismiss.html

https://everysuffererisasaviour.blogspot.in/2014/02/list-of-more-than-100-judgements-where.html

(LAST REPLY FOR THIS PARTICULAR THREAD)

Regards,

ESIS

@ Mr. Victim,

Maintenance can be waived on the following grounds , namely,-

1.  If the husband is a paralytic patient physically incapable to move and bedridden.

2.  If the wife is adulterous and a Divorce petition is pending for adultery.

3.  if the wife refused to live with the husband without any sufficient reason.

(SUFFICIENT REASON has been elaborately indicated in the cases of Ganesh vs. Sheomala (1955) Nag.,233 ; Pannambalam vs. Saraswathi AIR 1957 Mad 693 ; Narayana vs. Kondiah (1976) Cr.L.J.(para4) AP ; Udaivir vs. Vinod (1985 ) Cr.LJ (1923, para 17) All.; Narendra vs. Kamlesh (1977) All CrC (304); Pannaamma vs. Neelakanta AIR (1967) Ker (216) para-12 ; Ramsharan vs. Rampiari AIR 1937, All pages-115-116; Sukla vs. Ambarendu (1986) Cr.LJ , (para-7),Cal.  Siraj Mohammeed Khan Jan Mohammeed Khan vs.Haffijunnissa Yasinkhan AIR (1981) SC Page-1972, para-6 ;Ashok Kr. Singh vs.VI th. Addl. Judge AIR 1996 SC, Page 333; Radhamoni vs. Sonu (1986) Cr.LJ 1129 (para-9) ;MP;  Julliet vs. Anthony (1985) Cr.LJ page-1613, Mad. ; Subanu vs. Abdul AIR 1987, SC Page-1103, para-12;

Reduction of Maintenance :-, 

Sec.125(1) states "If any person having sufficient means" the word ' means ' does not signify only visible means such as real  property or definite employment.  If a man is healthy and able bodied, he must be held to be possessed of sufficient means no matter he is a professional beggar, or a minor or a monk. Once the person has capacity to earn, he cannot refuse and neglect to maintain his wife, child and parent.

In order to determine the quantum the Magistrate has to find out what is required by the wife, the standard of living which is neither luxurious nor penurious but is modestly consistent with the status of the family.  The wife's separate income has to be taken into consideration but not the notional income. It is also relevant to consider husband's income and his commitment, to determine the quantum. Income of the father of the husband cannot be taken into account

Thanks Mr. Roy. Your comments are very useful always.

My situation. I've filled divorce case against my cheating wife. But still they have filed an application for interim maintenance, which is in process. As per your above response, their application will be rejected. however its more than an year they are lingering it around. Supporting citations would be appreciated here.

Would appreciate your comment on my another question as well @ https://www.lawyersclubindia.com/forum/Already-sold-house-property-107734.asp#.U_xGC_mSysg

Thanks again !!

Dear Mr. Roy, Thank you for your valuable guidence.

Dear Experts,

I have the same situation :

(1.) Won the Divorce case filed by me on the grounds of Wife cruelty and paid around 4.5 lakhs as maintenance u/s 24 @ 20K Per month, which is now stopped as it was pendant lite. No Permanent Alimony ordered by the court.

(2.) Wife Desertion proved in my divorce case and mentioned clearly in judgement's order.

(3.) Wife appealed in High Court Against Divorce orders, which is yet not admitted after 2 dates in high court.

(4.) Fake 498, DV and 125 cases are on trial

(5.) 498 - All other family members found innocent by the court and discharged. Chargesheet filed only against me and trial is going on

(6.) 125 - Wife is MBA and was working earlier, but not working now just to have the maintenence.

Question: 

How shoudl I avoid the maintenacne in the 125 case as trial is just going to start next month and my advocate told me that at the time of interim maintenance nothing of above would be considerd even by the citations in your support

I have got bit confused now. Please guide me how can I avoid ther interim meiantenance in 125 and get this dismissed

Thanks