• CrPC 125

I have had a crpc125 case running now for 5 years. The ex wife has no proof of my income or work and as i am ill do not work i have given all my medical details and letters. Now in session court with appeal from myself i have no source of income as have ill health, i get 40 per week in sickness in the UK  the ex wife took a exparty divorce now 7 years later she decided to file maintenance case. I ave 2 children 14 and 15 year old. She since started living in my city  and i cannot go back home as she has threatened me not to come or she will trouble me. In the courts i am not being heard and although i have sent all proofs they are being ignored. 
My question is can i go directly to the supreme court for a outcome please advise. As she is making false stories that i earn 1.5 lacs p/m. Please advise on the lawfull way..
Asked 3 years ago in Family Law
Religion: Hindu

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21 Answers

Firstly, there is no escape route for a husband and a biological father from giving maintenance. As you have stated that your wife has already taken divorce by way of exparte, there is a new law that has come up that even after divorce if the wife is not living on adultery and/or has not remarried then the wife can seek for maintenance once again but such needs to be proved then only. Hope you have a good lawyer to deal your case technically. Moreso after the ages of 7 or 8 years children are being asked by court with whom they want to reside, the father or mother, on that basis court grants and you can obtain your childrens custody.

Aveek Bose
Advocate, Kolkata
1215 Answers
9 Consultations

4.7 on 5.0

Hi,

It is suggested that you engage a good lawyer and present your case effectively to the session. If required, also be present in the court and she can't do any more harm. It is further informed that you can't go to supreme court directly at this stage and your need to present your case in the concerned court itself.

Regarding custody of children, the welfare of children is paramount consideration by the court and you need to prove before the court that you can only take care of children in better manner.

Thanks

Ganesh Singh
Advocate, New Delhi
6512 Answers
13 Consultations

4.5 on 5.0

If you are not heard or your evidence is ignored by court of law then you can file Witt petition in high court for appropriate directions in your matter.

Prashant Nayak
Advocate, Mumbai
22417 Answers
49 Consultations

4.4 on 5.0

1.Unemployment is no excuse to avid maintenance in Indian court.

2.However if you can manage to prove that you are physically incapacitated making you unfit to make any earnings at all then only court can grant exemption from maintaining your wife.

3. mere sickness and not being able to get suitable job is not a good ground enough to avoid maintenance.

4.The children are grown up enough the chances of getting their custody solely depends on their wish to stay with you or your wife.

Devajyoti Barman
Advocate, Kolkata
21680 Answers
311 Consultations

5.0 on 5.0

Dear Sir,

Options available to you are as follows:

1. You approach High Court or Supreme Court under Articles 227 and 36 of Constitution of India, respectively and seek a remedy to dispose of pending proceedings under Section 125 CrPC within next 30 days or so.

2. Secondly you may deny the maintenance to your ex-wife as she appears to be well qualified and able to earn her livilyhood by herself.

3. Thirdly, there could not be any threat for you now, since she is your ex-wife as ex-parte divorce decree already granted by the Court. I have made extensive work on this subject and reproduced following information which enables to deny the maintenance or at least reduce the same. Please try to give Rank 5 to this question. If any help required in India you may please call me.

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.DEFENCES FOR HUSBAND TO DENY OR REDUCE

If your wife has asked for maintenance under CrPC 125, here's your chance to learn everything about how to fight and deny or reduce maintenance under CrPC 125

1. Husband’s EMI towards house to be considered in CrPC 125 Maintenance to wife – SC Judgment

This is somewhat old judgment of Supreme Court, and it brings an important consideration which was overlooked by lower courts: Which was neglecting to consider monthly EMI paid by husband towards housing loan.

The order reduced maintenance amount from Rs 10,000 to Rs 5,000 p.m. While this may cause cheers to readers, it should be noted that the in-hand salary of husband is Rs 9,000 p.m, so effectively he has to now survive on Rs 4,000 p.m. Somehow the facts of the case don’t add up for me. There must be more to it than the numbers mentioned in the judgment.

The logic of going for an EMI of 21K on a salary of 35K itself seems questionable. Surely reducing maintenance might be considered a sacred goal by many husbands, but taking such huge loan thereby living on the edge is probably not for everyone. Also, from facts of the case, husband has already accumulated huge arrears of maintenance, probably hoping that one day a higher court will reduce his maintenance to some very low amount. While an optimistic view is good in life, one should assess risk vs reward in these matters. Accumulating arrears in maintenance is a high risk thing, because there is no guarantee the higher courts may reduce the maintenance drastically. Further, one has to live with that uncertainty for a long time running around in courts, so best strategy should be to reduce interim maintenance right from the start, at trial court level.

2. MP HC denies maintenance to wife on her CrPC 125 appeal

We have this very recent judgment of Madhya Pradesh High Court which denied maintenance to wife under CrPC 125 on her appeal to HC since the court agreed with trial court’s observations that according to evidence led by husband and also wife’s own admissions, it was the wife who was not staying with him out of her own freewill.

The judgment is actually not very significant, since both evidence by way of letters of husband and wife’s own admissions proved that there was no maltreatment, and in practical cases such evidence, and wife’s own admissions are very rarely seen. Also the wife didn’t appear in HC at all for her own appeal. If any husband is lucky enough to have this kind of evidence (and a wife who admits in court to her faults ) , of course they can make full use of it! This was how usage of CrPC 125 was intended to be, but after passing of laws like DV Act combined with the so-called ‘women empowerment’ trend, most of the time interim maintenance is granted based merely on allegations and the fact that wife is not staying with husband.

3. Qualified wife can’t sit idle and claim maintenance: Mumbai family court

Important part of judgment below:

________________________________________

16. The learned counsel for respondent has argued that the petitioner is well qualified and she is earning an amount of Rs.50,000/¬per month, she is having sufficient income for her maintenance. It is argued by the learned counsel for respondent that before the police station Worli on 12.11.2011 the petitioner has given statement u/s 161 of Cr.P.C. The petitioner has admitted that she has completed degree in Food and Science Nutrician, she had worked as a dietician, she is Post Graduate in Dietician field, she had also worked with Larcen and Tubro etc. but at present she is not working. The above statement made by the petitioner clearly shows that she is well qualified and able to do job. The respondent though submitted that she is having huge investment in crores of rupees but nothing is placed on record. It is clear from the statement of petitioner that petitioner is well qualified having capacity to earn. The Hon’ble Madhya Pradesh High Court in the case of “Mamta Jaiswal Vs. Rajesh Jaiswal held that well qualified wife is not entitled to remain as an idle and claim maintenance from her husband. In short, the wife is not entitled to advantage of her own wrong, she cannot harass the husband on the count of maintenance though she is capable to earn. In the present case in hand, the petitioner¬wife is very qualified, she has worked with various companies. This admitted by herself, now she is claiming that she is a housewife, having no source of income. The wife who is well qualified and claiming maintenance by sitting idle is not entitled to get maintenance, secondly she herself has admitted that though her husband is connected with garment business but he has share worth rs.5,000/¬only. Considering the above circumstances, it is clear that the wife is having good capacity to earn. According to respondent, she is earning but no any documentary evidence is on record that she is earning. Nothing is on record to prove the income of respondent at this primary stage. In such circumstances, in my view, at this juncture petitioner is not entitled to get maintenance. Hence I pass the following order :

ORDER

1. The application is rejected.

4. Woman can’t evict husband just because she pays EMI: Mumbai Family Court

MUMBAI: A family court on Monday rejected a wife’s interim plea seeking her estranged husband’s removal from their Lokhandwala flat where she stays with him and their child, just because she pays the EMI (equated monthly installment to repay home loan).

The court, while ruling in favour of the man who pays Rs 90,000 a month for household expenses, said in the current day, it is difficult to ascertain who has contributed how much while purchasing any asset or discharging any liability. “If both contribute to the household, either this way or that way, a particular spouse cannot claim exclusive right, ownership or title in the household property, merely because either the property stands in her name or she has contributed financially,” said the judge.

“Not giving bath to a daughter cannot be a ground for the wife for excluding the husband from a property.

Similarly, his absent-mindedness of not removing the key from the keyhole while entering the house would be an unintended nuisance to the wife, but it cannot be a ground for throwing him out of the house.”

Among other reasons, the woman had claimed that her husband scolded the domestic help for drinking water untidily, left the child in the car while purchasing snacks, gave her lectures on parenting and did not lower the volume of the television.

The court referred to a Bombay high court judgment, which observed that if a husband shows negative treatment like disturbing the matrimonial life and jeopardizing the safety and security of the spouse and children, then such an interim injunction can be granted. “No such contention is raised in this application. On the contrary, the grounds mentioned show that this is the normal bickering which occurs in an ill-tuned family,” the court said. The court advised the parents to keep peace for the child’s sake until the petition is decided.

It’s a bit perplexing to me. The news doesn’t say who has filed petition – husband or wife. I don’t know what kind of petition can be filed in family court when husband and wife are already staying together! It can’t be RCR (restitution of conjugal rights). It can be CrPC 125 or DV case to ask maintenance. But wife seems to be earning and paying EMI so it’s not exactly a case that she faces a financial crunch. Filing divorce while staying in same flat is in theory possible, but it might raise suspicion of collusion between the parties; unless the petitioner and respondent can both state that they have to stay in same house due to financial crunch until the case gets decided!

Most likely it was CrPC 125 or maintenance under DV case, and the reason for staying in same flat are could be to do with housing crunch and high rents in Mumbai!

5. Delhi HC judgment in CrPC 125 maintenance, rejects one-third rule, both have income

The judgment asserts that there is no strict criterion that one-third of husband’s income has necessarily to be awarded as maintenance to wife. The judgment can be useful to know how judges may ascertain income of both parties based on declarations in affidavit, and some estimation of real income (because people just lie about income). Full judgment text below: Lalit Bhola vs Nidhi Bhola & Anr. on 12 February, 2013 Author: G.P. Mittal * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 30st January, 2013 Pronounced on: 12th February, 2013 + Crl.M.C.75/2012 LALIT BHOLA …..

6. Multiple maintenance under DV Act denied when CrPC 125 already decided

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Multiple maintenance under DV Act denied when CrPC 125 already decided

12 Oct2014by videv 3 Comments

It is a short and sweet (depending on the ears) judgment which denies fresh application for maintenance under PWDVA (DV Act) when a previous maintenance under CrPC 125 is already decided. Another crisp and clear judgment by justice S N Dhingra.

Important part of judgment below:

If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil Suit or by Court of MM in an application under Section 125 Cr.P.C. she does not have a right to claim additional maintenance under the Act. The Court of MM under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under Civil Court or under Section 125 Cr.P.C. If the woman has already moved Court and her right of maintenance has been adjudicated by a competent Civil Court or by a competent Court of MM under Section 125 Cr.P.C., for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach MM under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance. This petition is not maintainable and is hereby dismissed.

7. Mumbai HC disallows multiple maintenance under CrPC 125 when civil suit pending

this case, wife initiated a fresh maintenance petition under CrPC 125 when a civil suit asking for maintenance was already pending, but it was stayed by Mumbai High court.

Important parts of judgment below:

7. Mr. Vidwans, the learned counsel for the applicant submitted that practically pleadings are identical and verbatim in both the cases. He took me through the pleadings of both cases and demonstrated that practically the paras are identical as much as they are in verbatim. Following paras of the application u/S. 125 of Cr.P.C. are identical to the paras of the plaintiff in Reg. Civil Suit.

Application u/S. 125 Reg. C.S. No. 227/86 of Cr.P.C.

Therefore, according to Mr. Vidwans, in both the litigations, the fate would be based on the same evidence.

8. The findings given by the Civil Court are binding on the Criminal Court. Therefore, as the matter is seized with the Civil Court i.e. in respect of the maintenance allowance and that too the similar amount which she alleged to be entitled in the application u/s. 125 of Cr.P.C., instead multiplying the litigations and to harass the applicant to lead the evidence in different two courts, in the interest of justice, the application pending in the court of J.M.F.C., Buldana be stayed till the decision in the Reg. C.S. No. 227/86. It is further submitted that any verdict given by the Criminal Court is not binding on the Civil Court but it is vice versa. The reliefs being the one and the same, the evidence will be common, so also the documents, it is the interest of both the parties to get the verdict from the Civil Court.

16. Considering the facts and circumstances and the submissions made by the learned counsel for the parties, the relief in both the cases, being one and the same, and the Civil Court being seized with the matter, in the interest of justice, the proceeding pending in the court of J.M.F.C. Buldana, be stayed till the decision of the Reg. C.S. No. 277/86.

17. The non-applicants could not be allowed to ride two horses at a time (two simultaneous proceedings in two different Coruts) and could not be permitted to continue the maintenance proceedings u/s. 125 of Cr.P.C. when they had already chosen the alternative remedy in Reg. C.S. No. 227/86. It is well settled law that the judgment of Civil Court shall prevail over the judgment of Criminal Court. The natural justice demands that parallel proceedings cannot be allowed to continue in different Courts.

8. Qualified MBBS wife asked to do some work: Delhi HC Judgment

This older Delhi High court judgment by Justice S N Dhingra is an important one which puts equality between men and women before the law on a sound footing. It seems from the wording that the case involves asking for maintenance under one more section (probably HMA 24) while also getting it under CrPC 125. The judgment orders that she not sit idle on her MBBS qualification and do some honorary work while she is getting maintenance from husband.

Kishan Dutt Kalaskar
Advocate, Bangalore
5583 Answers
218 Consultations

4.8 on 5.0

Dear Concerned,

CrPc 125 - If you are not earning and dependent on government subsidy - you may be able to give it as an excuse for not making any payments to the wife. However as the present case comes under criminal law - you have to personally appear and unless you appear no court will hear you. On other hand if you appear your wife may file an application for submitting your passport until the lifetime of the case. SO , we would rather suggest stay back in UK and do not appear.

We would like to understand your comment "since she started living in my city" - assuming it means she is staying in house owned by you - Even if she has taken an ex-party divorce you are liable to pay maintenance to her till the time she gets married again - if she marries neither she can stay in your house , nor she gets any maintenance.

You are the Natural Guardian for you kids and you can get the custody BUT as you do not earn that would be a challenge. We suggest yourself a simpler way - STAY in touch with your children and in few more years they would be more than happy to come to UK and settle there, instead of being here in India.

Think Long Term - You may choose to go to the Supreme Court however will not be of any use as what ever the Supreme court decides - you will have to come down to India for trial in the lower courts - which wont make any logic in your case.

Best of luck

Atulay Nehra
Advocate, Noida
1247 Answers
58 Consultations

4.7 on 5.0

1) you cannot file case directly in SC against wife claim for maintenance

2) you should deny allegations that you are earning Rs 1.50 lakhs per month

3) produce your bank statements for last 3 years to prove that you don’t ha e income as alleged by wife

Ajay Sethi
Advocate, Mumbai
79294 Answers
4742 Consultations

5.0 on 5.0

Welfare of children is paramount consideration

2) seek your children are already 14 abd 15 years old court would consider their wishes which deciding your application for custody of children

3) court can award you joint custody of your children

Ajay Sethi
Advocate, Mumbai
79294 Answers
4742 Consultations

5.0 on 5.0

1. If she obtained ex parte divorce then you ought to have applied to the court to set it aside. The failure to challenge it will be read in her favour in 125 CrPC.

2. On what basis do you say that in the courts "you are not being heard"?

3. You say that you are in appeal before Sessions. What have you appealed? Has the trial court awarded her final maintenance and decided her 125 CrPC.

4. If an appeal is pending in the Sessions court then you cannot bypass the sessions court. High Court and directly approach the Supreme Court.

5. In so far as the question of child custody is concerned the courts in India are to decide this issue on the touchstone of welfare of child. If you can prove that you are more competent than your wife to secure the welfare of children you may get the custody, else you will get visitation rights.

Ashish Davessar
Advocate, Jaipur
29956 Answers
864 Consultations

5.0 on 5.0

Custody of kids will be decided on the basis of welfare of the kids but you can't be barred from visiting right

D S Dabas
Advocate, Gurgaon
18 Answers

4.0 on 5.0

You have to pay the maintenance allowance for your children and wife. It doesn't matter you are unemployed,but your wife has to proof your income, otherwise court may order minimum amount.There is no nerit to file a case in Supreme Court, since the matter is pending in Session Court.

Minansu Bhadra
Advocate, Kolkata
444 Answers
31 Consultations

4.9 on 5.0

The 235 case may be presented in the High Court for revision and custody of the children.

As you are not able to pay the maintenance amount what could be the ground for the custody if you have no income.

The court have discretion to see and take decision on the documents submitted.

The 125 case balance for the last 7 years if court thinks may order for to wave off or recover to pay as land revenue.

Vimlesh Prasad Mishra
Advocate, Lucknow
6786 Answers
23 Consultations

4.9 on 5.0

No you cannot go directly to the Supreme Court.

Get yourself represented yourself through an able lawyer so that he is able to present your case before the Court in the best possible manner.

If this case is lingering on for a while, you may go to the High Court and get it expedited.

Vibhanshu Srivastava
Advocate, New Delhi
9126 Answers
179 Consultations

5.0 on 5.0

Dear Client,

pls note, you can't go directly in Supreme Court of India bypassing proper and legal route, you should concentrate on your pending cases and strengthen them by submitting relevant and strong evidences.

custody of children depends on many factors like age, sex, income potential (past, present and future), wealth status, willingness of child etc.

in your case your wife is claiming maintenance from you means somewhere she is unable to maintain herself, and as you are concern you are in ill health state and you surely need someone as attendant to take care of you ,then how will you take care of your child as you are deprived from health and wealth both.

more and accurate resolution can be provided if your case file along with relevant documents are shown.

Suneel Moudgil
Advocate, Panipat
2330 Answers
3 Consultations

4.7 on 5.0

Hello,

No you can not go directly to the Supreme Court.

If you are aggrieved by any order of the court then you may appeal the same firsst in the High Court and not in the Supreme Court.

Regards

Anilesh Tewari
Advocate, New Delhi
17847 Answers
312 Consultations

5.0 on 5.0

Welfare of the child is of paramount importance while deciding the custody of the child.

if the court thinks that the welfare of the child is better in your custody then you will get the custody.

Regards

Anilesh Tewari
Advocate, New Delhi
17847 Answers
312 Consultations

5.0 on 5.0

A competent lawyer may help presenting your case which can be heard by the judge.

You cannot circumvent the procedure and approach supreme court.

Alimony cannot be avoided forever except as per the exceptions provided in the section.

Custody is a matter of emotions, welfare and therefore, you may be granted visitation rights and joint parenting plan depending upon the facts and circumstances.

Rajaganapathy Ganesan
Advocate, Chennai
1804 Answers
8 Consultations

4.9 on 5.0

hi, you can appeal to high court against the maintanance order of the session court..however ,the court do fixes a amount for maintanance ,which if unjustified can be challenge in high court..she is not entitiled to maintanance if she has remarried or is earning herself

Hemant Chaudhary
Advocate, Gurgaon
4595 Answers
41 Consultations

4.9 on 5.0

You cannot go to supreme court directly.

You can approach only the jurisdictional courts for reliefs.

If you are aggrieved by the decision in the lower courts, then you can approach higher court with an appeal.

T Kalaiselvan
Advocate, Vellore
69328 Answers
929 Consultations

5.0 on 5.0

I have also applied for custody of my 2 children boy aged 14 girl aged 15. Would i have a chance of getting it?

It depends on how strongly you fight this child custody case.

Also it depends on what grounds you seek child custody and whether you have submitted documentary or any other evidence in support of your pleadings

T Kalaiselvan
Advocate, Vellore
69328 Answers
929 Consultations

5.0 on 5.0

No you cannot directly approach the supreme court.However you can contest the false claims and false allegations levied against you by your ex wife.

Section 125 of Crpc enables a woman to claim maintenance from her husband post divorce,in the event she is unable to maintain herself.

If your wife has stated or given false information in court in her section 125 application, a charge of perjury can be brought against her.

R Aditya
Advocate, Delhi
68 Answers
3 Consultations

5.0 on 5.0

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