• Maintenance ordered. Some Questions

[CrPC 125] Last week, I've been ordered by the magistrate to pay 20,000 per month for child and wife. The magistrate failed to consider my expenses, dependent parents, and 80C deductions and rather went with the Gross Total Income in my ITR. I also made it clear in the written argument that the wife has work experience of 3 yrs and is a computer science engineer, although she's not working now.

I'm a freelance writer and my income from profession is fluctuating. I'm surviving only from interest income (sold my house 2 yrs back)

1) How do I go for appeal and what are the chances of reducing it to 15K per month?

For 2018-19, my ITR figures are :

Gross Total Income Rs. 7,82,537
Deductions Rs. 1,62,501
Net income Rs. 6,20,040

2) Secondly, how long should I have to pay her (divorce and RCR cases still going on in her town).

3) She's adamant and not accepting for MCD. Can I do a bulk payment of maintenance and go for renunciation after say, 5-7 yrs of so?
Asked 4 years ago in Family Law
Religion: Hindu

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20 Answers

court considers net income after taxes, your dependents while determining maintenance

2) you may file an appeal against order of maintenance of Rs 20000 per month

3) draw attention of court to wife qualifications and that she has worked in past

4) if she remarries then you dont have to pay her further maintenance

5) if wife is not agreeing for MCD file for divorce on grounds of mental cruelty

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Dear Client,

Have to file an appeal and pray for stay. As per Supreme court, 25% Of Husband’s Net Salary Just & Proper To Be Awarded As Maintenance To Wife - Net not gross.

Alimony shall be one time settlement or until she not remarries or start earning or live in adultery.

One time payment is available option by order of court.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

one-time settlement is on divorce granted and Mental cruelty have to prove with cogent evidence, mere allegation has no validity.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. The revision of the order under Crpc 125 has to me made in the session court in period of 90 days, sir you can try in revision.

2. Till modification of order or she remarries and child turns major.

3. See you can pay as order if she agrees for one time settlement and MCD then only pay money together

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Hi, if there is no agreement on MCD , then there is no point of paying one time settlement .. As a wife she can claim maintanance for herself and child .. It is advisable to file a appeal in high court against the sessions court order for maintaince .. The appellate court may decrease the maintainance in its own discretion after being satisfied by the facts presented before it

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

No if she is not willing or if the order of court doesn't prescribe so there cannot be one tie settlement.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. Since the quantum of maintenance is generally around 25% of your net income, yo have a good case for reduction of maintenance amount. So you can file criminal revision either in sessions court or in high court to challenge this order.

2. As long as your wife remains unmarried and without employment you are obligated to provide her maintenance. Divorce is no excuse nor grant of decree of RCR.

3. Law does not permit this.

Unless and until she agrees there is no way you can go for one time settlement.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

You can file a writ petition in the High Court for revision of the maintenance amount however court has considered your ITR before awarding rupees 20000 per month.

This is your responsibility to maintain your wife and child till she gets divorced and later on pay the alimony as decided by the court apart from that your child is responsibility of you and you have to pay for his education and maintenance.

As you are not the salaried employee that's why your previous it has been taken into consideration for deciding the maintenance amount and the same procedure will be applied in the high court as well

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

You can file an application U/S 127(2) of crpc before the same judge for cancellation of maintainance or yoyu can ask court to reduce the maintenance

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

You give below citation for example

Bombay High Court

Agnes Lilly Irudaya vs Irudaya Kani Arasan And Anr on 6 April, 2018

Bench: B. H. Dangre

And get our order revised by asking high court for revision of order.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

This can surely be reduced.

Maintenance couldn't have been calculated based upon your gross income. Your net income ought to have been determined and made the basis for calculation of maintenance.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

If wife is not willing for MCD then court would award her lump sum alimony in event divorce decree is passed in your favour

You can pay the x amount as one time settlement

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. If the expenses has not been considered and the maintenance has been decided on the basis of gross income then chances are high that the maintenance will be reduced by the High court.

2. You will have to pay till the time she gets re married or till the time there is a mutual settlement and she withdraws the case.

3. No you will have to pay as per the order of the court only

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

If she is not agreeing for MCD then she will not agree for OTS also, pursue your case and obtain the divorce.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Dear Sir,

You are correct, the courts are not guided by scientific formulas i.e. jacket formulas to determine monthly maintenance a wife and child during pendency of cases due lack of research and development wing in the judiciary. There are not feed back reports being collected by High courts and other courts in respect of side effects its unscientific based interim orders.

It is a good case for you to take it to higher court in appeal and get it reduced to Rs.10,000/- per month. The court should have taken into consideration above the qualification previous work experience of your wife. It is also on the part of court to take into account the voluntary unemployment of the wife.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

Hi,

You are suggested to challenge the order of the magistrate/ Family court judge giving all those reasons,. There are numerous judgments denying maintenance to her. Also file child custody case to avoid maintenance to child and in that case, it is quite probable that she would contest the case on her ability grounds. Her WS in that case will be used in other cases.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

A revision petition shall lie before the H.C of Madras. Even one-time settlement which should be substantial enough for her to lead her life would suffice.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

1. If it is a final order in the main petition then you can file an appeal before high court (provided the orders were passed by the family court), however if it was an order passed in the interim maintenance application then you may have to prefer a revision before high court.

You can highlight the grievances and also the points which were not considered by court while deciding the maintenance in the grounds for revision or appeal.

2. If it is an interim maintenance then it can be paid till the disposal of the main petition.

3. If she is not agreeing for MCD or one time settlement, you cannot force her.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

I'd like to inform you that the divorce case (filed by me on mental cruelty) and conjugal rights (filed by her) are going on in her town. I have no proof for her mental cruelty but can explain orally to the judge.

You can mention all those events of cruelties in your pleadings as well as in your evidence which you will be filing as an affidavit before court.

If she's not willing for MCD, is it still possible to do a one-time settlement?

If there is no possibility for MCD then there is no question for one time settlement

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

1. If proper appreciation has not been made of the liabilities then you may challenge the order of the magistrate.

2. Previous work experience of wife is not a ground to deny maintenance to wife as the test to be adopted by the court is present self sufficiency.

3. If the higher court comes to a conclusion that liabilities were not properly factored in by the court then it can reduce the quantum. It is the pure discretion of the court.

4. Maintenance is to be paid unless and until wife remarries.

5. Unless she agreed to MCD the court will order only monthly maintenance.

6. Oral explanations do not suffice in the court.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

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