Respected Expert, I have three queries My marriage is 8 years old, have one child 5 years old. Question 1> my wife filled several criminal cases 498a etc, 125, 323, divorce ,I have good documentaary proof that my wife has 6 lakhs in savings and FD in her bank account. She is MSC and MBA Finance with first class, she used to work earlier and got 18000 p m as salary. unfortunately I do not have her salary slip. in her 125 petition she said she is house wife with no personal income. Court ordered 18000 / month ans interim maintenance to wife and Rs 6000 to child. Can I pray to same trial court where 125 case is going on that since my wife has 6 lakhs as asset she can use those as interim maintenance and she can also work as she is professionally qualified having M Sc and MBA degrees. I am only B. Tech but wife have 2 master degrees. So wife is much more qualified than husband will court give me any relief and reduce maintenance. as per my interpretation of the section 125 , maintenance is only given to wife who has no means to support herself( but if wife has 6 lakhs, proves she has sufficient means) with 5 lakhs at 18000 per month she can maintain herself for more that 2.5 years, so why is interim maintenance required question 2> I have not meet my daughter for more than 2 years, I filled Child custody case more than 8 months. in the last 3 dates nothing happened, wife did not even come to court. I know as per law I will not get custody of my minor daughter, the only thing I dream is to meet my daughter at least 2 times in a month for some hours. I want interim visitation right, however my lawyer is saying that interim visitation right is not possible. only after the final order I will be able to meet my daughter. Now that will take 4 to 5 years, by then my daughter will forget me. Sir/Ma'am, Please guide me how will I not get any interim visitation order. Shall I file a petition in court praying for interim visitation, will court grant it in my favor If wife will never come to court for child custody case, then how will I get to meet my daughter. 3> if 498a etc is proved false by the virtue of my evidence, will I still have to pay her maintenance, although she filled false case on me.
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you can file appeal against interim maintenance order as your wife is highly qualified MBA in finance and has been working in the past .
2)court does consider wife qualifications , past working experinece in determining maintenance amount
3) you have not mentioned what is your income
4) as far as visitation rights are concerned court can award you visitation rights need not wait till disposal of case
5) if 498A case is proved false then you can file for divorce on grounds of mental cruelty
Sir, Please let me know what I have to do to get interim Visitation right from court. What is the procedure, please little bit elaborate the procedure, Do I need to file any application in court. Please advice. Thanks you Sir.
Maintenance case is different to that of 498a case. The judgement in that case may be in your favour but that has no impact on maintenance case, no excuse or exemption can be claimed on that basis.
In the child Custody case you can very well file an application seeking visitation rights as an interim relief. Your Advocate has given you an incorrect information. You may ask your Advocate to file an application to this effect immediately.
As far as maintenance case is concerned, if she is highly qualified but sitting idle at home then the court will come down heavily on her moreover if it is proved that she is having sufficient income to sustain then the court may even dismiss her case, but it depends on how you present your arguments to repudiate her claim.
You have to make application to family court that you should be granted interim visitation rights pending hearing and final disposal of child custody case
2) court can grant you visitation rights for certain hours on every weekend
1. Well,savings of 6 lakh is not enough to avoid maintenance. However the opinion of courts as regards high education of wife differs as far grant of maintenance is concerned..However at the time of hearing of interim petition you should have agitated these points.Now Revision is only option.
2.I am not sure why nothing happened in your custody case for the last 8 months. By this time you should have surely got the order of visitation of the child.
Without pressing the case papers it is difficult to say what went wrong in your case.
If you are from Kolkata you may feel free to contact me for further assistance.
The remedy available before you is file appeal against the maintenances order. It is well settled that under the Hindu Law, the husband has got a personal obligation to maintain his wife and if he is possessed of properties then his wife is entitled to a right to be maintained out of such properties. The Supreme Court of India has held that no fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. Family courts can pass an interim order on maintenance to a spouse when she is separated from the other spouse with minor marital conflict, with a decree of judicial separation or if one of the spouses has applied for divorce. Interim maintenance order remains valid till the permanent maintenance order is given by the court during the divorce.
A wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband. A well-qualified wife is not entitled to remain as an idle and claim maintenance from her husband.
File an application for day custody in the court premises is the solution for seeing your child. Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the overall development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses.
Please let me know what I have to do to get interim Visitation right from court. What is the procedure,
please little bit elaborate the procedure, Do I need to file any application in court.
Please advice.
You may have to file a petition seeking child custody.
In the same petition you may file another interlocutory application seeking court permission and direction to the respondent for allowing you to visit your child on the time and venue as scheduled or by an order of the court and also for the future visitation rights.
You have to file a case under guardians and Wards act for this purpose.
Consult your lawyer on this and decide.
1. The Court will not ask her to encash her FD and incur her daily expenses. At most, you can claim that she has the regular monthly earning of interest from her said FD which she can use to maintain herself for which your ordered maintenance amount should be proportionately reduced. You can off course argue that she is highly qualified and is capable of earning for maintaining herself. Actually you should have put all these arguments before the interim order was passed. You have good points to agitate before the Court for reduction of the amount ordered to be paid by you towards her interim maintenance.
2. File an application before the Court directing your wife to allow you to visit your daughter once in every week.
duly enforcing your child visitation right. Such prayers are hardly denied.
3. Maintenance and 498A case are two separate legal matters and one has no bearing on the other for which your proving her 498A complaint false will have no bearing on your liability to pay her maintenance as per the Court order.
1. You shall have to file a petition praying for an order upon your wife for letting you visit your child at a place and on days of a week as asked by you or as decided by the Court.
2. You shall have to send copy of your petition to your wife who will get the chance to contest your said prayer.
3. After hearing both the parties, the Court will pass order accordingly which both of you shall have to comply with.
4. It has been commonly noticed that wives refuse to allow such visitation on various ground for which further petitions are filed by the husbands for remedy. So, from the beginning, you should pray for presentation of your child before the Court or direction upon the police to accompany you on each dates of your visit
5. It is a simple procedure which your lawyer shall be able to follow..