In case of adultery and non consummation you may be spared of paying alimony. Other wise you have to pay 25%.
Supreme Court sets alimony benchmark: 25% of ex-husband’s net salary
The Supreme Court has set a benchmark for maintenance to be paid by a husband to his estranged wife, stating that 25% of his net salary might constitute a "just and proper" amount as alimony.
A bench of Justices R Banumathi and M M Santanagoudar made the observation while directing a resident of West Bengal's Hoogly, earning Rs 95,527 a month, to set aside Rs 20,000 as maintenance for his former wife and their son, turning down the man's plea that the amount was excessive. The court said the amount of maintenance or permanent alimony must be sufficient to ensure that a woman lived with dignity after separating from her husband.
Its order came on the man's plea challenging a Calcutta high court order directing him to pay her Rs 23,000 per month. Though the apex court said there was nothing amiss in the high court order, it reduced the amount by Rs 3,000 on the ground that the man had remarried and hence needed to provide for his new family.
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 :
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.