1. Legally 125 can be filed by the wife after divorce also. As per the said section " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

You will have to move an application for setting aside the ex parte decree.

Take the ground that since the marriage has been declared as nullity therefore she is not even your ex-wife and therefore no such suit is maintainable.

Regards

Divorce per se is not a ground for alteration in maintenance allowance and a decree of divorce obtained by the petitioner on the ground of desertion cannot affect the order of maintenance under Section 125 Cr.P.C.,

2) you can appeal against order of maintenance awarded to wife

You can file an application under Proviso to S.126(2) cr.p.c to set aside the exparte order also you can go for revision under 397 Crpc. You can avail both the remedies. There are various judgements that clearly held that without giving proper hearing opportunity the maintenance decided is to be set aside

Hello,

Better you approach the High Court and get the stay on ex-parte moreover show the void marriage decree and try to take anticipatory bail also.

Because 125 comes under criminal proceedings when it's ex-parte there is possibilities court may also passed warrant for arrest so deal carefully.

1. Approach the Family Court first and apprise it of the fact that your marriage has been already declared and void; and hence, the 125(3) filed by your ex-wife has been rendered as infructuous.

2. Serve the decree passed by the Indore Family Court upon your ex-wife.

Limitation for recovery of arrears under sec 125 CRPC In this classic case, the honourable madras High Court, clearly distinguishes between the powers of the court to imprison the husband for non-payment of maintenance – Sec 125(3) , versus simple recovery of her years maintenance, under section 128 of criminal procedure code.

1.) You have to prove that she is not your wife and apply in local Surat court.

2) you have to file suit in court against her and narrate all your history that she is not your wife.

You need to file the application u/o 9, r-13 to set aside the ex-parte order against her in surat court which has passed the order.

Dear Client,

Since marriage is declared void on some prohibited grounds. Under such circumstances, u r not liable to any maintenance as no husband wife relation legally existed.

The word 'wife' means only a legitimate wife and excludes other relations. A marriage proved illegal does not confer the status of wife to a woman and the right to get maintenance.

First file application to set aside ex parte order or appeal in High Court on suggested grounds.

Hello,

My advice to you is ensure that there is no warrant against you in this ex-parte order. If there is warrant pending then I advise you to approach the High Court.

Yes thatbis what I am saying, file an application for setting aside the ex parte order on this ground and in the alternative you may approach the HC and file an appeal against this order.

Reg

you can file appeal against the impugned order awarding ex wife maintenance

1) if the marriage is void under section 11 of HMA.

2) Yes you are correct for approaching for set aside the order given u/s 125 crpc.

Further to draw your attention to the fact that the supreme court has laid down guidelines that if the marriage is annulled on the misschief of husband than the wife is entitled to maintenance other wise she is not so you can contest same in revision.

Sir please note any order passed by family court is appealable high court in your case gujarat. As such you need to approach high court to set aside the petition order granted in her favour.

Q. Can I give application to hearing judge stating this is void marriage and we are approaching for set aside the order given u/s 125 CRPC.

Ans. Yes, do this.

Take help of a local lawyer specialising in matrimonial matters.

The Hon'ble Supreme Court in Ramesh Chandra Rampratapji Daga Vs. Rameshwari Ramesh Chandra Daga has laid down that maintenance is payable to a wife even in a proceeeding under S.11 of the act. It has further laid down that wife is entitled to maintenance under S.25 of the act at the time of passing of decree.

However, S.125 defines wife as "legally wedded wife". The Hon'ble Supreme Court in Savitaben Somabhai Bhatiya Vs. State of Gujrat and others, AIR 2005 has laid down that the scope of S.125 cannot be enlarged to include woman not lawfully married.

Therefore, you are perfectly justified to approach the HC and get the order quashed.

125(3) is applicable for realisation of the maintenance amount if application in the regard is given in the court with in one year from the date it is due to levy on to recover by warrant or imprisonment till the realisation of amount.

The maintenance in case not paid where the wife was agreed to live and refused to live with husband due to husband kept any mistress may be justified.

You have decree against the marriage so you may go ahead and file petition.

Before reply to your query , i would like to mention the followings laws for your knowledge and purpose.

A woman is considered as the “wife” only if her marriage to the man is legally valid.

For Hindus, a legally valid marriage requires that:

-both parties are Hindus,

-the marriage is performed in accordance with customary rites of the parties,

-neither party has a living spouse at the time of marriage,

-neither party is of unsound mind at the time of marriage,

-the male is at least 21 years old,

-the female is at least 18 years old and

-both parties are not related by sapinda or within prohibited degrees of relationships.

Further , the wife who lives separately without sufficient reasons or due to personal mutual agreement cannot claim maintenance.

Wife” includes a divorced woman, but she must not be remarried on the date that she files an application for maintenance.

Since, the court has already declared your marriage as null and void , it means legally she is not your wife .

Further she cannot claim any maintenance from you because she has already lost her status to get the maintenance from you legally.

Surat family court has decided the maintenance petition filed by her in your absence ,ie. ex-parte Order.

You should moved an application for setting aside the said order /judgement with one condonation of delay application.

Once, the said order will set aside , you will have opportunity to furnish the said decree u/s.11 of HMA with the reply of the case filed by her and other her application under section 125(3) will be stayed till the time final disposal of the case.

You cannot approach to High court untill your application rejected by the said lower court.

Probability to get positive relief in your favour is maximum.

So,without any further delay, moved above said application in the same court which has pronounced maintenance judgment in your absence.

Good luck and dont forget to positive Rating.

1. how I should get this order set aside since she is not my legal wife should I approach family court surat or I will have to go to high court.

For setting aside the exparte order, you may have to approach the trial court only and not the high court.

2. what steps I should take this should not happen in future also.

Forget the future, first try to solve the present issue properly, the future will be taken care of automatically if the present problem is solved legally.

It is not divorce this marriage has been declared void by decree u/s 11 of HMA.

Can I give application to hearing judge stating this is void marriage and we are approaching for set aside the order given u/s 125 CRPC.

You have to approach court with the reasons that why you could not participate in the case which was decided against you in your absence.

The nullity of marriage can be pleaded for refusing to grant maintenance to her.

Dear Sir,

Just get a certified copies all the legal proceedings and approach the High Court through a Advocate and stay the proceedings, it will be stayed and quashed. Rest assured. Need not bother.

Approach the sessions court as appellate court for magistrate court who has passed the order for maintenance is sessions court. You can set aside and quash the order in the said case.