• Interim maintenance leading to attach of property

Interim maintenance for dv act has been ordered by court which i am not paying to wife. now can court attach my expired fathers property which is not yet in my name. note: he didn't leave any will. i have mother and one sister. also i have one son.
Asked 4 years ago in Family Law
Religion: Hindu

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24 Answers

Hi, no the court cannot attach the property .. But court can issue non-bailable warrant and a send you to imprisonment for default or court contempt

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

1) The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.

Means you have to give your share property to her.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Hi,

The maintenance amount can be ordered to recover as land revenue from the property or by arrest and put you in jail on your own cost in jail till the date the recovery of amount.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

The Dv act gives women right of maintenace and accommodation. The court can order the attachment of ancestral property to the extent of your share in condition that you don't have any property salary to give maintenace amount so it will be like last resort when the amount cannot be obtained by your other properties.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) No, that you have to pay it Interim maintenance amount monthly or you will be in trouble in future.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

On demise of your father you have one third share in deceased father property

2) if you refuse to pay maintenance court can direct attachment of your bank account or any property standing in your name or any share in deceased father property

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

If you have decreeof RCR issue notice to wife to return to her matrimonial home

2) if wife refuses to do so you can file for divorce on expiry of period of one year

3) you cannot avoid payment of interim maintenance

4) you can file petition in HC if maintenance awarded is excessive

5) but court will not grant stay if you don’t comply with family court orders of interim maintenance

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

In maintenance proceeding under 125 crpc or under PWDV Act the court can attach property but the power of attachment is with regard to moveable assets of the husband only like his salary/household articles etc.

So in other words the immovable proeprty of husband remains untouched in such maintenance casein which even touching the proeprty of his father remains out of question.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Maintenance can be claims as right by wife he she is not unable to maintain herself .A RCR decree will have no effect on the interim maintenance. Thought if interim maintenance amount granted by family court is more your are unable to pay you can apply to high court for modification.

RCR is direct wife to live with you and maintain conjugal rights if she fails you can file.for.divorce based on same.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Marriage under all matrimonial laws is union imposing upon each of the spouses certain marital duties and gives to each of them certain legal rights. The necessary implication of marriage is that parties will live together. A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. At present as per the provisions available under the Indian personal laws, the aggrieved party move a petition for a decree of divorce after one year from the date of the passing of the decree and the competent court can pass a decree of divorce in favour of the aggrieved party. The decree of restitution of conjugal rights can be enforced by the attachment of property, and if the party complained against still does not comply, the Court may also punish him or her for contempt of court. But under no circumstances the court can force the erring spouse to consummate marriage. Decree of restitution of conjugal rights could be passed in case of valid marriages only.

More over a Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. 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

After the demise of farther his legal heirs become the absolute owners of the property. In such a condition you have 1/3 share in that property. if you refuse to pay maintenance amount court can direct attachment the said share in property

Ajay N S
Advocate, Ernakulam
3991 Answers
93 Consultations

5.0 on 5.0

1. Was the NBW issued by the court? If yes, what was the fate of it?

2. The Magistrate is under obligation to issue a warrant for levy of the amount by attachment and sale of any movable property of the husband if the maintenance order, final or interim, has been breached. The other remedy available is to issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both of the defaulter.

3. Decree of RCR is of no help in attachment proceedings.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Yes they can attach your inherited property as per the law. No decree of RCR will not going to help in this case.

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

4.8 on 5.0

No this will not help but this will help you in case of divorce ground and early disposal of the case.

If you are happy with the answers please remember to rate the answer as well - Thanks

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

If you are not paying the maintenance as directed by court either your property, bank account or salary will be attached or you may be arrested till you pay the maintenance.

RCR decree may not help you.

Rajashekar
Advocate, Bangalore
584 Answers
4 Consultations

4.8 on 5.0

if property is undivided better do a relinquishement of your share of property in favour of your mother and sister in that manner can avoid your property from getting attached. Court may not attach property but issue warrant against you and also put you to custody. What decree do you have from family court is immaterial as both proceedings are separate.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

As per S.9(1)(h), the protection officer has to ensure that the order for monetary relief under S.20 is complied with and executed in accordance with the procedure prescribed under the Cr.Pc, which means, it can be executed by filing a petition to execute the order which may end up in imprisonment.

The order may help and has to be thoroughly examined whether it has been passed with observations that the spouse has left without justifiable reasons.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

Dear Sir,

I am happy that you are having RCR decree in your hand, she is a contemnor, not entitled for any maintenance past or present, a contemnor is contemnor no leniency, no sympathy for law breakers. For more advise call me.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

The court can attach the property lying on your name alone, that too it has to follow the proper procedure for doing this.

The property yet to come to your hands canot be said to be your property.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

I have a decree of RCR granted by family court in favour of me. Will this help in avoiding interim maintenance.

If ther is an order passed in the maintenance case, yo may have to take up a revision of the order before the appellate court only and not bank upon your RCR decree after the orders have been passed.

Have you not taken up this RCR decree in your favor during the argument in the maintenance case?

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

No, since this property can't be attached by the executing Court.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Yes, your wife is expected to reside with you and the fact that she's not doing the same despite you having a RCR decree in your favor proves the fact that she's bent upon abandoning you. In such a scenario, you're not bound to maintain her.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Interim maintenance for dv act has been ordered by court which i am not paying to wife. now can court attach my expired fathers property which is not yet in my name. note: he didn't leave any will. i have mother and one sister. also i have one son.

If you do not have the clear and marketable title of the land then the same can not be attached

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

I have a decree of RCR granted by family court in favour of me. Will this help in avoiding interim maintenance.

Yes you can take this as a defense thereupon showing that you she has left your good company without any reason and you are ready to keep her.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

If the said property is not yours then court can't. You need to oppose the said attachment application strongly.

Prashant Nayak
Advocate, Mumbai
27261 Answers
88 Consultations

4.4 on 5.0

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