• Wife filed maintenance case but I didn’t receive any Summons

I am residing in Australia for past 12 years. Got married in 2014 and I called my wife on Partner visa within one year after our marriage. She lived only 3 weeks with me in Australia and left to live with her parents in India. My parents went to talk to them and discuss but they filed section 498 against them. So we decided to file divorce in Nov 2016 and I gave POA to my father due to work commitments.
They use to come in all hearings but then on our hearing on Sep 2017 they decided to file maintenance case sec 125. So our lawyer then decided to withdraw our Divorce case and reason they give to my parents is “if we don’t withdraw then we have to accept their maintenance case and fight that as well” and once our case is withdrawn then their case becomes baseless.
So now only their maintenance case is active and We did our investigation to see what’s going on. It seems they got 6 hearing till today and all hearing have outcome as “Notice to opponent” but we haven’t received any notice. My father went to court reader and he said that next date is 9th July 2018 and judge will be making decision based on facts presented by my wife on next hearing. It seems I will be proven guilty without even knowing charges.

What can I do to defend myself? I haven’t done anything wrong. 
Is it safe for me to go India and fight case ?
What could be maintenance imposed on me if we don’t go on 9 th July as we were not aware till yesterday
Asked 1 year ago in Family Law from Australia
Religion: Hindu

Dear Client,

Pendency of divorce petition has no bearing on sec 125 application and you will not present on the next date, court may grant ex parte order. So better appear in court and seek adjournment to file reply.

Not required, through POA and advocate, case can be represented.

25% of salary.

Yogendra Singh Rajawat
Advocate, Jaipur
14010 Answers
18 Consultations

4.6 on 5.0

1) it is better you engage a lawyer file detailed reply

2) call upon wife to produce her income tax returns , bank statement for last 3 years

3) details of investments in her name etc

4) maintenance awarded depends upon your bet income , wife income , standard of living etc

Ajay Sethi
Advocate, Mumbai
68149 Answers
4114 Consultations

5.0 on 5.0

Maintenance case filed by your wife will continue as such irrespective of your withdrawal of divorce case.

2. The judge may grant interim maintenance amount against you to wife in the next hearing,if she has no job.

3. It’s better that case has to be defended by your father on the strength of POA. Your coming down to India to fight the case is unadvisable.

Sushil Jha
Advocate, Patna
283 Answers
3 Consultations

5.0 on 5.0

Sir firstly if order is passed without your presence you can file an application to set aside the order as you have not received the notice or you can do it your father your POA can be present before court and can seek time for reply as you have not received the notice. Further can contest the maintenance application.

Yes you can go India if no case is pending against you, if any can file for AB and can contest the case.

You maintenance shall be decided on salary and income documents of yours submitted by your wife in the court.

Shubham Jhajharia
Advocate, Ahmedabad
20236 Answers
80 Consultations

5.0 on 5.0

As you have withdrawn your divorce case as per advice given by your lawyer. The thinking behind this might be that if you are seeking divorce and till the time the decree isn’t granted you need to take care of your wife as she is your responsibility and you want her back and you aren’t seeking divorce from her. But from your prospective you should decide the track to follow on your own as the picture might be clear for you that your wife has any chances of reconciling. If not so then you should have kept the case of divorce pending for disposal on merits and Parallel to this you should Contest the maintenance suit filed by your wife. Coming onto Your query on maintenance suit, the maintenance suit usually is accompanied with the interim application for maintenance till the final disposal of the case. The court issues summons to the defendant and if the summons are not served By speed post, Then the judge orders for service by other means to serve the Defendant. Still If the summons are unserved Then the court can proceed ex parte.Once the petitioner gets ex parte order in her favour then she has to file execution proceedings for executing the same.

You should file reply/written statement to her petitions before the next date of hearing that is 9th of July And contest the Same. If you have a power of attorney in favour of your dad for all the cases then you can file your reply through your dad. Once the evidence starts then for your evidence you need to appear in person.

If you don’t want to divorce your wife then you can file a petition for restitution of conjugal rights under section 9 of Hindu marriage act.

For any other assistance feel free to call regards.

Ruchit Dugar
Advocate, New Delhi
190 Answers

4.9 on 5.0

hello,

you did a big mistake by withdrawing your case. if you have to take divorce then it does not matter they file maintenance case or not. they will demand maintenance irrespective of the fact whether you withdraw your application or not.

anyways, the maintenance case they have filed against you is to be heard on 9th July. the judge would most probably order an interim maintenance until the application is finally decided based on your current financial status your earnings and the financial status of your wife, whether she earns or not, etc.

it does not matter whether you have been served notice or not. they must have intentionally done something so that you don't get the notice and they will serve you directly the maintenance order.

therefore, try to be present at the hearing, if not send your lawyer to forcefully argue your case.

file a divorce case and mention in it that you were coerced into withdrawing the case.

also, file a case for FITR quashing in the HC.

regards

Rahul Mishra
Advocate, Lucknow
4774 Answers
11 Consultations

5.0 on 5.0

Hi, a wife is not entitled for maintanance if she has deserted the husband without any reason ..And also if she is a earning lady ...This should be ground for contesting 125 Crpc

Hemant Chaudhary
Advocate, Gurgaon
4285 Answers
31 Consultations

4.9 on 5.0

Firstly you were wrongly advised by your Advocate. Despite withdrawing, the maintenance case is still going on right. The Court is not going to not give relief to your wife just because you are not present and that is what is happening. So first advice to you is to change your lawyer.

If there was no mention regarding the 125 Petition during the pendency of the Divorce Petition, your wife must have somehow managed to convince the Court regarding the service and therefore the court must now have kept the matter ex-parte. If there was mention, then the Court is not going to serve you again.

Basically, if your wife is able to establish that you were aware of the 125 Petition then you need to appear or be represented. If not, then you can wait till the matter is officially served upon you.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

1) If you have not received any summons till date thsn don't worry it's not your fault.

2) Have you contact your wife and told her to inform your email id to court so you can get summons by e-mail.

3) Ask court to give you more time and take next hearing date after two nonths. So you will get time for preparation.

Ganesh Kadam
Advocate, Pune
7988 Answers
68 Consultations

4.9 on 5.0

On next date of hearing, you advised your counsel to file reply if summon executed. Because you may take your defences in your reply. For further assistance contact me.

Shitanshu Kumar Gaur
Advocate, New Delhi
44 Answers

Not rated

1. Then reason given for withdrawal of your divorce suit is not at all understandable.

2. If you can establish that she has left you of your own without any cogent reason then she will not be entitled to any maintenance.

3. Divorce Suit can be filed on the ground of cruelty and lodging false 498A complaint against you and your parents can be considered as an act of cruelty on the part of your wife.

4. Even without having any divorce suit filed, the maintenance petition filed by your wife can be allowed by the Court if the court finds that she has been driven out of your house and is unable to maintain herself.

5. When you have come to know about the fact of her filing the maintenance petition, then your lawyer should have entered his appearance claiming that he has appeared after seeing the cause list showing a case against you and that you have not yer received the notice along with the petition.

6. Actually your lawyer should attend the Court without appearing for you initially and if he finds that your wife has filed some postal report of delivery of the notice to you and the Judge is about to decide on the matter, then only your Advocate should enter his appearance as suggested above with the said submission.

Krishna Kishore Ganguly
Advocate, Kolkata
22690 Answers
606 Consultations

5.0 on 5.0

Withdrawing your divorce case does not have any bearing on the maintenance case under section 125 CRPC, and should not have been done, in my opinion.

As you are aware of the case, you can approach the court on the date of hearing and intimate the court that notices haven't been served on you and seek time to file reply.

If you won't appear, you would be preceded ex Parte and maintenance order would be given to wife in your absence, for which she can file execution later.

Siddharth Jain
Advocate, New Delhi
4887 Answers
54 Consultations

5.0 on 5.0

The case will not be decided finally on this date.

You need not come to inida.

Withdrawing Divorce petition, I think it was wrong.

Let it go its way 125 case. Think what ultimately you both want. Do that.

Jugal Kishore Agrawal
Advocate, Jaipur
81 Answers

Not rated

Yes it is advisable to go on next date and contest before court decide it exparte.

Shubham Jhajharia
Advocate, Ahmedabad
20236 Answers
80 Consultations

5.0 on 5.0

You must appear in court and contest the proceedings

Court would award wife maintenance

Ajay Sethi
Advocate, Mumbai
68149 Answers
4114 Consultations

5.0 on 5.0

Hello,

If your father would be present at the hearing then there is no need to go unless the court summons you.

Regards

Rahul Mishra
Advocate, Lucknow
4774 Answers
11 Consultations

5.0 on 5.0

You have done a blunder mistake by withdrawing the divorce case on the incorrect advise of your lawyer.

The maintenance case has been going on and will continue whether you withdraw your divorce case or continue with it.

If you dont appear in the maintenance cases then it will be decided in your absence after the court satisfies about the sufficient service of summons.

You may better attend the court on the next date of hearing and get the copies of the petition she has filed.

You pick up the grounds to reject her claim on the basis of documentary evidences from your side.

T Kalaiselvan
Advocate, Vellore
57900 Answers
730 Consultations

5.0 on 5.0

Whether she is eligible for maintenance or not will be decided by court and not you.

You simply participate in the case and challenge her cases properly.

T Kalaiselvan
Advocate, Vellore
57900 Answers
730 Consultations

5.0 on 5.0

Yes, you can visit in the court on next hearing date.

Ganesh Kadam
Advocate, Pune
7988 Answers
68 Consultations

4.9 on 5.0

1. It will be prudent on your part to enter your appearance on the next date of hearing of the maintenance case and thereafter file your objection on the subsequent date of hearing.

2. You shall have to clearly mention in your written objection that she has left you of her own without any cogent reason for which she is not entitled to any maintenance.

Krishna Kishore Ganguly
Advocate, Kolkata
22690 Answers
606 Consultations

5.0 on 5.0

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