You don't have any authority to issue warrant or summons. The judge will issue when he deems fit. Follow the directions of your advocate, rather than trying to be too smart by discussing your case with others like this. This is something known as confidentiality which is applicable, not just on your advocate, but also on you. You surely wouldn't have liked your advocate to breach confidentiality by discussing your case with all and sundry. The same principle applies upon you too. Your advocate must have worked hard upon your case.... Why you seeking advice from others? First relieve your advocate from your case, pay him his fee and then seek advice from other advocate
I want to know can we summon my husband before the next hearing date which is in 20 days from today?
Respected Lawyers, Needed your help urgently. Court has passed the interim order of 15,000/month in October 2018, and since then my husband paid only 12% of the total 16 months interim amount in December 2018. He is yet to pay the remaining amount. Now he has left India and i don't know when he will come back for the hearings and when he will pay the remaining amount. We asked lawyer to file an application or summon him or get a warrant issued for him for the remaining amount. Lawyer told us that we cannot file for the application or get a warrant until the next date. If he does not pay by the next date only then we can go ahead with the process. I am really confused as I do not know how to go about the whole process. I have a few doubts: 1) Can we file for a summon to him only on the date of hearing or we can do it before the date of hearing as well? 2) Can we issue a warrant against him since he has not paid the 14 months amount from the date of us filing the case? 3) Can we file our execution applications / or / for that matter any application related to execution to the matter only on "date of hearing" anytime before or after the date of hearing? Please help me with the above queries learned Sir's & Ma'am's.
Asked 7 years ago in Family Law
Religion: Hindu
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13 Answers
1) your lawyer has guided you correctly . wait for next date which is only after 20 days and if he does not comply with maintenance orders take out execution proceedings
2)you can issue legal notice to your husband to comply with court orders and pay arrears of maintenance
3) in alternative take out contempt of court proceedings against husband in HC for failure to comply with court orders of payment of maintenance
1. it is not clear under which kind of proceeding the order of maintenance is passed. If it is passed in a case u/s 125 crpc or case under PWDV Act then for recovery of arrears maintenance amount you will have to file a separate execution case in which fresh summons would be issued and in threat execution case also if he fails to clear arrears then warrant of arrest would be passed.
2. same as above
3. Since execution case is to be filed afresh it can be filed at any point of time and on any date which has no connection with the date of the main case of maintenance.
Dear Madam,
You can advance the date of hearing and file a petition for arrest warrant to him for default of maintenance.
The following information may kindly be read:
1 month jail for every month of maintenance default under CrPC 125
CrPC 125 has provision to send husband to jail for not paying maintenance. In a recent judgment, husband was ordered to serve jail term for 44 months since he was in default for 44 months of maintenance ordered under CrPC 125. However sending jail for each month of default probably seems a liberal interpretation, because the plan reading of the section says that a month of jail can be sentenced for each order which is not adhered to.
http://timesofindia.indiatimes.com/city/mumbai/Jail-hubbies-who-fail-to-pay-maintenance/articleshow/5466802.cms
MUMBAI: Coming to the aid of neglected wives, the Bombay high court has ruled that men who fail to pay a court-ordered maintenance to their estranged spouses can be jailed for every month that they default on the payment.
“This case exemplifies the stark reality of the agony that the women face when their husbands disobey orders of maintenance with impunity,’’ said Justice Roshan Dalvi.
“The husband (in the present case) has been a consistent, persistent, consummate and inveterate defaulter,’’ he added, upholding a family court order, sending Shyam Patil to prison for 44 months, the period for which he failed to pay the maintenance amount.
1. See if time till next date is given it is better to file for execution of order on next date the court shall issue notice.
2. See in case you file for execution of order and the proceeding is under crpc or DV act the court can issue Warrent.
3. See you can file an execution application after time period granted to husband to pay the amount is over it is not necessary to file on next date you can file prior to same.
Whether you have advocate on record. You must file a petition for enforcement of order for paying maintenance or otherwise that is to say if your husband will not pay arrears of interim maintenance court will detain him in prison. Your advocate must agitate the matter in the court before judge for getting justice by showing yours position. If you do not have advocate engage an advocate and he will agitate for payment of arrears of maintenance. You must file a petition for enforcement of order for payment of interim maintenance otherwise your husband will not pay. Every time you must file a petition for payment of arrears of maintenance
Dear Client,
Whether maintenance filed under sec 125 Crpc/DV act or HM Act. Except in HMA, in both acts, warrants will issue and police will process to impound his passport.
Before applcaiton can be file but with application of early hearing. So, same time will consume, first notice will issue to him than hearing on early hearing application.
Execution not maintainable, for non compliance of court order, warrant will issue and still not paid, will send to jail.
1. You can do the same on the date of hearing only.
2. You may file a separate execution petition against him.
3. Execution application can be filed anytime from the day when the order for paying the amount was passed.
Regards
Dear Querist
if any execution petition is pending before the court than wait till the date of hearing and on the date of hearing if he is no going to appear then approach for the attachment order regarding his movable and immovable properties, later on the warrant can be issued against him.
before the date of hearing the warrant can not be issued.
if there is no execution pending, file the same immediately and the court may passed the order immediately if satisfied with your version.
Feel Free to Call
1. Wait till the date of hearing when court will see he is not complying the order then it will issue warrant.
2. Court will issue Appropriate orders including attachment of his property alina with the warrant.
3. Once he is absent deliberately then you can go ahead with execution
1. You can file a petition only on the next date of hearing.
2. You can request court to issue a bailable warrant for default in payment of maintenance amount.
3. An execution petition can be filed before the next date of hearing also.
1. Your lawyer is absolutely right as you cannot file the application before the next date of hearing.
2. Take out execution proceedings against him. The court can issue warrant if he does not appear. He can be sent to jail for not complying with the order.
In that court you have to wait for the next date. In case you want to go for a revision I'm the higher court or an appeal you can file the case. Here he hasn't paid the amount and is absconding. Therefore wait for the date and pray to the court to specifically order him to pay otherwise his property should be attached. The court shall issue a warrant.
Regards
