File petition in high court under art. 227 seeking all records from lower court and set aside all orders on ground of irregularities in trial proceedings. Also seek an interim stay order till final disposal of the petition.
Execution order on interim maintenance without any hearing
I'm an aggrieved husband living in usa. Wife separated only after 19 months of marriage and filed for maintenance under dv act in her hometown where marriage took place within 11 months seeking 1/3rd of gross US salary (converted at spot exchange rate) and then again under crpc 125 18 months later. 8 months after crpc filing, interim order was awarded at 2/3rd of net savings based on legit documents, tax returns and statements provided by me. Appeals were filed both by me (more share that SC's ruling) and my wife (1/10th of what she expected) against the order. It's been 5.5 years, the wife's family is influential in her home town, cases are getting postponed rather stopped from going to trial as i have all proof showing that she's lying about her case; she doesn't want to settle out of court, and recently she filed and was granted execution order with the magistrate on interim maintenance requiring me to pay arrears. Could anyone advice how to handle this situation and more broadly how to move the case forward so that actual trial can take place as this has already been 3 years of harassment for my parents who are old and have to run around for this case?
Asked 6 years ago in Family Law
Religion: Hindu
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23 Answers
File petition on HC seek expedited hearing of case filed by wife
2) you have to comply with trail court order and pay arrears of maintenance
3) even if you file appeal stay would not be granted until you pay arrears of maintenance
You can ask your lawyer to apply for final decree or ask to take hearing dates to stand case on board.
You can definitely reduce the maintenance as she is trying to misuse the law by pressuring you but you have to pay maintenance and arrears.
A criminal revision must be filed against the interim maintenance order.
Also you should prove that she has been living all along and has deserted you deliberately. If you can prove that she is not entitled to maintenance.
Regards
You should approach high court with writ petition to make the cases time bound so that magistrate will be under pressure to decide the case with in that time.
You should ask your Advocate to pray in court that Bailable warrants should be issued against your wife if she refuse to come to court for evidence.
1. It seems that either the appeal filed by you was dismissed or no stay was granted in appeal on execution. Since court has ordered the payment of arrears you have to pay the same failing which a warrant can issue for your production before court.
2. If there is delay in the disposal of the case then you can file a petition in the High Court to seek expeditious and time bound disposal of the case.
Need detailed history. Petitions and all order copies
Since there is no stay from from appellant court, maintenance is payable. Only one maintenance is payable either under DV act or u/s 125 crpc whichever is higher.
As per SC, 25% of net salary is just maintenance to wife and to claim that also wife have to prove domestic violence. File appeal against orders.
- The interim maintenance order can be challenged in the High court by preferring an appeal.
- You should challenge the said order before the court , and further, you have also right to move an application for time bound hearing of the case in the trial court on the ground of harassment faced by your parent.
- If, she is not agree for a settlement out of court, then you should mention before the court for a mediation of the case settlement.
- for the payment of arrear , you will have to comply the said order , othewise court will issue attatchment order or warrant.
- Further, if you are not interested to continue with her, then you should file Divorce petitioin on the ground of mental cruelty or desertion etc, and in that eventuality you should try for a settlement.
File a petition in the High Court to get the process expedited and take the direction for the lower court that the case be decided at the earliest without unnecessary adjournments.
Regards
You can file a appeal to set aside the said executionon grant of said interim maintenance without merits
Thank you for all your answers: I think the take away is to file for expedited processing. To follow up: 1. Where should the motion for expedited judgment be filed - in the same city's trial/High Court where the case is currently pending or can it be done in any other city? Is there any specific section of the law that this needs to be filed under? 2. We had filed for a divorce case in my hometown last year, but they have moved in SC and managed to stay the order, it's been 8 months since. 3. Regarding maintenance of 25% of net income, what does NET mean: net after statutory deductions (PF, taxes, etc) or net after expenses and deductions (PF, taxes, cost of living, etc); I as as I have a US salary and Cost of living is v. high and she is demanding 33% US gross salary
Asked 6 years ago
It should be with the immediate apeallate court. For Magiastrta court it will be sessions Court for session court it will ever HC and further. No its a general application and no need to mention a section for the same.
You can convince btge court that she can only ask for maintenance as per Indian standard and not US
It should be filed in HC
2) if SC has stayed divorce proceedings till stay is vacated case would not be proceeded with
3) net income would be after taxes , PF
4) wife would not be entitled to 33 per cent of your gross salary
Speedy trial concept is mainly attached with criminal cases not civil cases.
Lakhs of civil cases are pending over years and your case will not get any priority. High court generally does not give any direction for speedy disposal of civil cases except rarest of the rare cases.
You should make application in court to pass Ex-parte order against your wife
Net salary means the salary after general deductions like PF taxes rents etc and not cost of living
1. It has to be filed in the jurisdictional High Court.
2. Apply for vacation of stay in the Supreme Court.
3. NET has to be calculated after deducting all liabilities of husband.
Direction of speedy trail will pass by HC having jurisdiction over trial court.
After deduction of tax.
1. In the HC
2. Have you appeared before the SC?
3. NET means the total income that you get in hand.
Regards
The revision must be filed before the district court against the maintenance order.
The net salary means salary minus taxes and expenses.
Is the case pending at appeal level?
If not then what is the stage of the maintenance case?
Are your referring to the unwillingness of trial of DV case or maintenance case under section 125 cr.p.c.
If there is an inordinate delay to conduct the proceedings, then you may file a petition before high court seeking an expeditious trial by the trial court.
1. The petition seeking an expeditious trial should be filed before the high court only.
2. You can file a petition seeking to vacate the stay.
3. She may demand any amount as per her greed, you can present before the court about the actual amount what you get after all the statutory deductions including your residential expenses at that country.
Dear Sir,
The maintenance amount is calculated by taking into account the total monthly take home income (ie. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount.
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.
