Hello,

Challenging the order of maintenance in the High Court will be the best strategy at this juncture.

Go to the High Court immediately, the order can not be challenged before the same judge.

Regards

The way our is a revision writ in this regard in the HIGH Court for revision of the maintenance amount considering the hardship and the income of opposite party.

However the chances are very less as she has not been given any maintenance for her self during this period.

The maintenance fixed by the court is normally fixed after considering and taking note of relevent factors of social and economic back grounds of both the parties.

In my advice and experience I would not advise you to prefer a motion in the session court.

the session court usually do not interfere in the award

http://www.insaafindia.in/judgements/maintenance/both-parents-should-maintain-a-child/

Regards

Dear Client,

To your dismay, U/s 125 - Only father is liable to pay maintenance to child not mother. So in appeal, relief is ordeal.

U can take advantage on Sec 24.of Guardians and Wards Act, 1890

Duties of guardian of the person - that include mother also.

A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.

But the motion may not work in the same court.

High court do not take more time to decide.

You need to file a revision in the Calcutta High Court against the order of interim maintenance.

No writ can lie against this, but only a revision application.

Judgements on shared parenting:

(i) Padmaja Sharma Vs. Ratan Lal Sharma reported in I (2000) DMC 629 (SC) "MAINTENANCE: Maintenance of Minor Children: Father and Mother Both Employed to Contribute: Proportionate of Amount Meaning of term maintenance defined under Section 3(b), Hindu Adoptions and Maintenance Act Under Section 20 of Act it is as much obligation of father to maintain minor child as that of mother Both parents employed Approximate salary of husband is twice as much as that of wife They are bound to contribute for maintenance of their children in that proportion Amount awarded by Family Court under Section 125 Cr.P.C. not to be interfered Sum of Rs.3,000/- per month for each of the child would be sufficient to maintain, to be borne by both parents in proportion of 2:1 Directions issued Section 26, Hindu Marriage Act, 1955."

(ii) A.Jairam (DR) v. A Suman reported in II (2005) DMC 345 (DB) "(i) Family Courts Act, 1984 Section 19 Hindu Marriage Act, 1955 Sections 24 and 26 Interim Maintenance: Where both husband and wife are in gainful employment, proportionately they have to share expenses of maintenance incurred on their children: Amount of Rs.2,000/- of interim maintenance ordered by Family Court to be paid to children, not on higher side.

When both husband and wife are working both should share responsibility of maintenance of child

2) against order appeal to sessions court

3) court will grant stay only if you pay maintenance till date

4) rely upon wife email wherein she says she does not want maintenance

5) enclose evidence in your possession regarding wife income

You should get reliefs from sessions court

Act as per your lawyer advice

In the decision reported as (2000) 4 SCC 266 Padmja Sharma vs. Ratan Lal Sharma 2000 Indlaw SC 227 the Apex Court has observed that both the parties are bound to contribute for the maintenance of the child. In para 10 to 12 of the report, it was held as under:

'10. Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardanship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Acts are to be read in conjunction with one another and interpreted accordingly. We can, therefore go to Hindu Adoptions and Maintenance Act, 1956 (for short the 'Maintenance Act') to understand the meaning of the 'maintenance'. In Clause (b) of Section 3 of this Act "maintenance includes (i) in all cases, provisions for food, clothing residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage." and under Clause (c) "minor means a person who has not completed his or her age of eighteen years," Under Section 18 of Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to certain conditions with which we are not concerned. Section 202 provides for maintenance of children and aged parents. Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor child so long as he is minor can claim maintenance from his or her father or mother. Section 20 is, therefore, to be contrasted with Section 18. Under this Section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how affluent mother may be it is the obligation only of the father to maintain the minor.

11. In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentioned that she is getting a salary of Rs. 3,100/- per month and husband is getting a salary of Rs. 5.850/- per month. She is therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of Rs. 250/- per month for each of the child under Section 125 of the Code. That amount we need not touch.

12. Considering the overall picture in the present case we are of the view that a sum of Rs. 3,000/- per month for each of the child would be sufficient to maintain him, which shall be borne by both the parent in the proportion of 2:1.......'

Kandula Subramaniam v Krishnakoli Datta

Delhi High Court

23 August 2016

Mat. App. (F. C.) 132/2014

The Judgment was delivered by : Pratibha Rani, J.

1. The appellant/husband is aggrieved by the order dated August 26, 2013 whereby he has been directed to pay Rs. 23,000/- per month towards maintenance of the child of the parties and also Rs. 1,08,000/- as 1/3rd share in the admission charges of Rs. 3,24,000/- of their child in regular school.

2. It is admitted case of the parties that they got married on April 22, 1999. They were blessed with a son on March 07, 2008. The parties are living separately since February, 2010. The appellant/husband and respondent/wife jointly owned two flats, one in Ridgewood Estate, DLF Phase IV, Gurgaon Haryana) where appellant/husband is residing and one in Iris Row, Vatika City Sohna Road, Gurgaon (Haryana) where respondent/wife along with their son is residing. The appellant/husband filed HMA Petition No.471/2014 seeking dissolution of marriage.

The respondent/wife filed an application under Section 24 of the Hindu Marriage Act, 1955 to seek maintenance of their only son who was aged about 6 years at the time of passing the impugned order. In the application, the respondent/wife prayed for direction to the appellant/husband to pay a sum of Rs. 1,62,000/- as his half share for getting the child admitted in a good school and thereafter to pay Rs. 35,000/- per month for his maintenance as well Rs. 1,00,000/- towards litigation expenses.

3. We may simply note here that for purpose of seeking maintenance of the minor child, the provision applicable is under Section 26 of Hindu Marriage Act, 1955 and not under Section 24 of the Act as mentioned by the parties and learned Principal Judge, Family Court.

4. Vide impugned order in para 4 & 5 the learned Principal Judge, Family Court has noted the income of the parties and divided the share of the parents as under:

'4. Both the parties have filed their detailed affidavits along with documents. The petitioner in her affidavit has shown her income as Rs. 2,63,429/- per month net of TDS as of 31.03.2013. There are other miscellaneous incomes also like interest and dividend etc. On the other hand, the respondent has shown his income as Rs. 1,23,750/- net of TDA. He has not shown any other income. Both the parties have also mentioned regarding investments, instalment of loans, other assets and liabilities in their respective affidavits. After going through affidavits of both the parties, the following can be safely assumed:-

(i) Both the parties belong to upper middle class and are enjoying luxurious living style.

(ii) The income of the petitioner/applicant is more than double of the income of the respondent.

5. So in my view the expenses of the child are to be borne in the ratio of 2:1 by the petitioner and the respondent respectively.'

5. After noting as above, he directed the appellant/husband to pay Rs. 1,08,000/- towards his share for admission of the child in regular school and then estimating the monthly expenses of the minor child to be Rs. 70,000/- per month, directed the appellant/husband to pay Rs. 23,000/- per month in the ratio of 2:1 i.e. two parts of the expenses to be borne by mother and one part to be borne by father in view of their respective incomes.

6. Learned counsel for the appellant/husband has submitted that the learned Principal Judge, Family Court has wrongly assessed the monthly disposable income of the appellant/husband to be Rs. 1,23,750/- whereas after deduction of compulsory income tax which comes out to Rs. 1,10,003/-. He has further submitted that in view of his medical condition, it is obligatory to him to employ a driver and pay his salary as well maintenance of car and cost of treatment. Conversely the monthly disposable income of the respondent/wife is Rs. 3,55,473/ per month. The learned Principal Judge, Family Court proceeded on wrong assumption while calculating monthly disposable income of his wife as Rs. 2,63,429/-. It has been further submitted that he had been voluntarily offering to contribute Rs. 10,000/- per month for the child expenses which has been declined by the respondent/wife and when he tried to contribute by sending the cheque to her she did not get the same encashed.

The contention of the appellant is that the two spouses should be similarly and equally placed on their own financial needs and while the wife would be left with sufficient amount in her hand to meet her requirements, the appellant/husband would be left only with Rs. 55,000/- to meet his requirements. It has been strenuously argued on behalf of the appellant/husband that he is a cancer survivor with many liabilities including cost of treatment as he has also developed heart problem and had spent about Rs. 2 lacs for investigations since 2014. He has been to undergo Coronary Artery Bypass Surgery and pre-surgery tests, entailing heavy expenses of about Rs. 10 lakhs.

7. We have perused the record. The learned Principal Judge, Family Court while disposing of the application seeking maintenance for the minor child, has taken into consideration the income of the spouses. Taking into consideration that the appellant/husband is earning less than the respondent/wife, he has been directed to share 1/3rd of the financial burden to maintain the child.

8. It has come on record that both the parties are staying in the flats jointly owned by them and they do not have to incur any liability towards payment of rent. The child was just six years old at the time when this application under Section 24 of the Hindu Marriage Act was disposed of and estimating monthly expenses of a child aged about six years to be Rs. 70,000/- as claimed by the respondent/wife appears to be exaggerated and not reasonable. The learned Principal Judge, Family Court though required to consider the income of the spouses for purpose of awarding the maintenance, should have considered approximate monthly expenses of a six year old child and even considering the total income of both parents could not have estimated the sum to be Rs. 70,000/- required for his maintenance so as to fixing 1/3rd share of the appellant/husband to be Rs. 23,000/-.

9. In the decision reported as (2000) 4 SCC 266 Padmja Sharma vs. Ratan Lal Sharma 2000 Indlaw SC 227 the Apex Court has observed that both the parties are bound to contribute for the maintenance of the child. In para 10 to 12 of the report, it was held as under:

'10. Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardanship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Acts are to be read in conjunction with one another and interpreted accordingly. We can, therefore go to Hindu Adoptions and Maintenance Act, 1956 (for short the 'Maintenance Act') to understand the meaning of the 'maintenance'. In Clause (b) of Section 3 of this Act "maintenance includes (i) in all cases, provisions for food, clothing residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage." and under Clause (c) "minor means a person who has not completed his or her age of eighteen years," Under Section 18 of Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to certain conditions with which we are not concerned. Section 202 provides for maintenance of children and aged parents. Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor child so long as he is minor can claim maintenance from his or her father or mother. Section 20 is, therefore, to be contrasted with Section 18. Under this Section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how affluent mother may be it is the obligation only of the father to maintain the minor.

11. In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentioned that she is getting a salary of Rs. 3,100/- per month and husband is getting a salary of Rs. 5.850/- per month. She is therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of Rs. 250/- per month for each of the child under Section 125 of the Code. That amount we need not touch.

12. Considering the overall picture in the present case we are of the view that a sum of Rs. 3,000/- per month for each of the child would be sufficient to maintain him, which shall be borne by both the parent in the proportion of 2:1.......'

10. Though not specifically noted in the impugned order, the learned Principal Judge, Family Court has followed the principles laid down in Padmja Sharma vs. Ratan Lal Sharma's case 2000 Indlaw SC 227 (Supra).

11. Taking into consideration the age of the child as on date i.e. about 8 years, even as per the financial status of the parties, his reasonable monthly expenses required to enjoy that status may not exceed Rs. 45,000/- per month. This brings down the share of the appellant/husband to Rs. 15,000/- per month. He has already been offering Rs. 10,000/- per month for the maintenance of the child which was not acceptable to the respondent/wife and by parting with Rs. 15,000/- per month as 1/3rd share he is left with sufficient means and take care of his cost of treatment which is higher in his case as he claims to be cancer survivor and now a heart patient with problem in his vision.

12. Thus, the appellant/husband is directed to pay Rs. 15,000/- from the date of application as 1/3rd share towards maintenance of the child.

13. So far as the claim of the respondent/wife of Rs. 3,24,000/-, as detailed in paras 7 and 14 of the application seeking maintenance, towards admission charges of the child in the school is concerned, on furnishing the receipts before the learned Principal Judge, Family Court of actual expenses incurred by her for admission of the child in school, the appellant/husband shall bear and pay 1/3rd of such expenses subject to adjustment of payment, if any, already made in this regard.

14. With above observations the appeal is disposed of.

15. No costs.

Appeal disposed of

1. Yes you can refer to the judgments shared herein.

2. You can mention this before the court directly (session court) thereupon requesting the court to allow you to pay the expensis directly (50%).

Regards

1. You have to cite both, the judgements as well as the proof or employment and income of your wife.

2. Yes, plead in light of the judgements shared with you.

It is necessary to peruse order passed by trial court to advice

2) you cannot pay directly expenses if order does not mention said fact

3) in appeal to sessions court you can request court to clarify on said issue

4) you don’t ha e to enclose judgments in your appeal

5) during course of arguments you can rely upon said judgments

Dear Sir,

You have to file an application for modifying order of the Lower Court facilitating you to pay the only official and legal expenses of the child directly to the concerned authorities like, school, etc., The following will enlighten you further. But the fighting lawyer must have guts, he may not, because of practical problem, because he has to under the mercy of same judge etc....

in most court cases the primary custody of child goes to mothers, and child support being paid by fathers. But the law especially Hindu Family law is gender-neutral in both aspects. It is only on case by case basis that a decision can be made about both custody and child support.

http://menrightsindia.net/2010/03/child-support-and-custody-is-shared-by_11.html

1.Yes if you can.

2. The court may order a joint account to be opened in the name of minor and wife as the caretaker and signatory to withdraw the amount so paid in for the use of child ( fees, maintenance etc)

1. In motion beofre the sessions court you cannot bring in record any new residence unless it came to your hand subsequently.

2.If it was all along available to you but was not brought to the notice of the Magistrate then the sessions court is not bound to consider the same.

3.Your only hope lies in the income of your wife for which she is also proportionately liable to bear the maintenance of the child.

4.However your repeated attempt the challenge the order of maintenance for your child would agaisnt you if you file custody suit .

5.Since the court can not monitor day to day expenses of the child ,it will pass only blanket order of maintenance.

6 If the amount paid in maintenance is not used for the welfare of the child then you can highlight the issue in the custody to bring this in your favour.

In maintenance case you cannot seek shared parenting

2) file application in family court seek joint custody of child

3) obtain certified copy of order and file appeal at earliest preferably within period of one month

4) final maintenance order may not be higher

5) contact Mr Barman or Mr Ganguly from kaanoon website both are from

Kolkata

1. During evidence you can place the evidence which are available with you.Since the evidences are mostly electronic in nature you will have to submit a certificate as prescribed by section 65B of the Evidence Act while filing the evidences.

2. In 125 CRPC case the custody of visitation rights of the child is never cosndiered. You will have to file separate suit for custody of child.

3.You can assail the order of sessions court in high court within 60 days from the date of passing of order.

4.It depends on proof of your respective income after trial.

5.you can get in touch with me on this.

Personal loans taken by you would not help you in reducing maintenance

Courts consider your net income after taxes in determining maintenance

1. No point! Take your chance by approaching the High Court and getting this interim order modified.

2. No, that's not how it works.

3. You still have sometime to approach the High Court.

4. Depends. Not necessarily.

5. Let lawyers from Kolkata answer this.

Yes, all your recurring expenses have to taken into consideration before quantifying the final maintenance.

Every order of matrimonial proceedings should be challenged in high court depends from state to state procedure. Ask your lawyer to file another case under Sec 127(1) crpc claiming change of circumstances and to adduce evidence regarding her earning. Better to file in lower court New case as I mentioned rather than going to higher court.

My question is: how can I convert this judgement to a shared parenting? How to fight this case? Why only father has to pay when mother is enjoying a nice life with a good salary.

You can file an appeal against this aggrieved order if you had taken up this matter during trial proceedings, or if it is an interim relief then you may take up a revision petition before the sessions court.

My lawyer is saying to go to higher court and take a stay order. Also challenge there. Do you think it is the right way? Also is there any way we can reverse the order and convince judge she should be asked to pay a % also. Because previously she wrote in an e-mail that she does not need maintenance for herself and the child, because she has a good job.

Have you suggested this question that whether she had written this email stating that she do not want maintenance amount from you for her and also fort the child, if yes, then you can very well use that as evidence in the appellate court while preferring the appeal.

My learned advocate is advising me that to file a motion in the sessions court, not high court. Is it the right step? Also, i am thinking it will be expensive for me to fight the case in the high court. Is there any hope in the sessions court to reduce the maintenance and ask wife also to bear a percentage of the maintenance? Thank you a lot for quick response.

You can prefer the appeal before the sessions court itself and seek justice.

It depends on how convincingly put forth your argument before the appellate court.

Dont approach the court with negative thoughts, you can have confidence and approach the court confidently.

My question is now, while I move to Sessions court, in the petition shall I also attach these judgements shared here along with the e-mail copy, and the salary and investment related details of my wife?

Yes you can very well attach the citations of various courts supporting your views while seeking justice in the appeal.

I do not want to pay cash to my wife...I want to directly pay all the expenses. Because I am sure, she will not use this money for the child, rather use for herself. What shall I do? And in which court? In lower court where the present case is going? or I shall write in petition in the sessions court? I want to pay a part in cash and rest I can open a FD for the child. How shall I proceed?

You can make a request to the court in the manner what you say now, but the court may not accept your request because your canot dictate terms to court to pass an order in your favor as per your convenience

1. In the hearing of the main petition you may produce all those documents you rely upon while cross examining her and get them marked as your side evidence.

2. You can file a petition for shared parenting in some other case namely child custody case, in this you can only mention that since she is also equally employed and earning a good salary income, she may also be directed to bear half the expenses of the child, the court will certainly consider the issue on merits and documentary proofs what you have submitted before it.

3. Appeal before sessions court is 30 days and before high court it is 60 days.

4. It depends on how safely you defend and convince the court about it.

5. you have to look for an advocate yourself or select one from this forum too.

Another question: If I take house loans/personal loans and show increasing expenses with reasons...will it be considered by lower court now? or sessions or high court?

The strategies have to be adopted in the manner that the court will not become suspicious of your intention.

There is nothing wrong in your advocate's advise.

This persisting dilemma in your mind about each and everything might have been the reason for the order that has been made against you.

At least now you should not hesitate further on such issues and may follow the advocate in the local so that you dont suffer any more damage on this issue.

The revision court may ask you to deposit at least 50% of the pending amount to consider your request on this.

sessions court or HC would not grant you stay unless you pay the arrears of maintenance

2)you should file application for stay within period of 30 days of receipt of order

3) delay if any can be condoned by the sessions court

Dear Sir,

My answers are as follows:

Qs 1. I forgot to mention, this is interim order. Still counter questions - hearings and evidences stage are left...can not I show the evidences to court, which already I have (her emails, her details about being happy with me, PPF details etc etc.) now? Will lower court consider the evidences that she was happy. She is making baseless charges.

Ans: You can show even at preliminary stage before interim orders were passed or if any modification of interim order is prayed. Now the stage is passed. Thus you may produced during final evidence.

Qs 2: Also, at this stage can not I file a fresh petition to the same lower court (when still final order yet to be given) and ask for a shared parenting y showing all these case judgements?

Ans: Yes you can file but the result may out be in your favor since these are summary procedures and judge will be reluctant to pass any favourable orders.

Q3: Within how many days I can appeal to another higher court? like sessions court? and also how many days to appeal to High court? Almost one month is over now. Am I late?

Ans: No, you can file it now even if there is few days delay it can be condoned.

Q4: Will final maintenance order be higher than the present interim order? What generally happen?

Ans: Naturally.

Q5: Do you suggest any advocate who is practicing in Alipore court in Kolkata, who has successfully faced similar situation for a husband and can guide in writing the petition in the right way and filing the cases further? I want to take the right step now. Thanks.

Ans: Every advocate is competent provided you have faith in him since all these proceedings are only petty cases for lawyers when compared to murder cases and corporate cases.

Another question: If I take house loans/personal loans and show increasing expenses with reasons...will it be considered by lower court now? or sessions or high court?

Ans: No, subsequent actions like raising loans runs in negative demoralizing your character.

Within how many days I should go for a motion to Sessions court? Limitation period?

Ans: About 60 days. You just believe in your advocate without searching for informations on the net. He will be the master of facts and law. Even if some mistake is committed he is in a position to rectify the same.

For the advice of your lawyer.

He is advising you correctly.

1. 90 days

2. No this order can also be challenged

Your advocate is giving you right suggestion, kindly follow his advise