• How long and how much maintenance do I need to pay and how to defend

Me and my wife lived together for 2.5 years.we have one 1.5 yrs old boy child. She dont want to keep my sick widow mother with me, she and her family behaved arrogant and insulted my mother and me. Her father is a rich man, once i started opposing their attitude towards my family members they filed DV case and called me as drug adict, which police refuse to file FIR after enquiry. Police asked her to leave their parents ( in written) and live with me. She refused and given in the written that she dont want to live with me at this time. Now she filed a maintenance case in court. I am earning 45.000 per month in IT company. My question is how much maintenance naturally will be allocated to her and my child.. and how long i have to give her that . What is the way for getting divorce.?

She is not working currently and she is a msc mphil on dietics. 2011 passed out.
Asked 1 year ago in Family Law from Madurai, Tamil Nadu
Religion: Hindu
1. Fixing the amount of maintenance is the prerogative of the court. Nobody can tell what the amount will be. Your wife is not entitled to any maintenance as she left you without any justifiable reason. 

2. If you can prove in the court that you have been financially supporting your child the court will not burden you with any maintenance.

3. You are at liberty to file for divorce on the basis of cruelty.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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1) your wife is highly qualified and she can work and maintain herself 

2)has your wife ever worked in past ? please  clarify 

3) court would generally award around 1/3 rd of your income as maintenance 

4) you have to continue paying maintenance to your wife till she remarries after divorce 

5) making false allegations that husband is drug addict amounts to mental cruelty 

6) file for divorce on grounds of mental cruelty 
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
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Hello,
1)  If maintenance is ordered you are liable to pay until your child turns a major and as long as your wife is unemployed. The wife can get an ward off approximately 1/3rd of your income as maintenance and as the child is still a small one an appropriate amount still be ordered for its maintenance as well.

2) You can contest her claim for maintenance for  her as she was employed and employable as she is qualified.

3) You should immediately file a petition for restitution of conjugal rights. This asks her to come back and join you to resume the marriage. If she fails to comply this would firm the basis of a divorce.

4) If you file for divorce immediately you will end up paying huge maintenance, alimony, child maintenance etc. Hence filing an RCR is more advisable.
5) You can file a petition for child visitation rights immediately if you choose to do so now.

6) Contest the DV case on merit and provide brief to your lawyer to come for RCR.
S J Mathew
Advocate, Mumbai
1954 Answers
65 Consultations
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Domestic violence act is now commonly used and more effective best law for protection from harassment, physical torture, sharing of matrimonial home, maintenance etc. So your wife use that method .

Maintenance is the amount which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances.woman is entitled to claim maintenance from her husband if her independent income or earnings as a single woman are insufficient to maintain the standard of living she was accustomed to whilst living with her husband.Income alone cannot be criterion for deciding the maintenance amount.  Take home salary and also the expenses also should be taken into consideration while awarding maintenance to wife.  

While awarding maintenance, Court considers following factors among other:
1.Status of the husband and wife.
2.Salary/ Income of the husband
3.Salary /Income of the wife
4.Liabilities of husband, if any
5.Dependants
6.Reasonable wants of claimant.
7.Financial Background
8.Movable & Immovable properties of the Husband
Though there is no fixed formula to arrive at the calculation of maintenance. Yet, the figure hovers around 30% to 40% of the salary/income.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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There are two types of maintenances:-
(1) Interim maintenance and maintenance pendente lite
(2) Permanent maintenance
The interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the immediate needs of the petitioner.Interim maintenance is the amount that is paid by the financially independent spouse to their counterpart during the pendency of the proceedings in the matrimonial cause and which covers the expenses of the proceedings as well as the other expenses of the spouse during the course of the proceedings. The basis of the claim for interim maintenance is that the claimant has no independent income of his/her own to support himself/herself. The provision is silent on the quantum of maintenance and it is upon the discretion of the court to determine the quantum.

Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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1. Those are good grounds for divorce but not for avoiding maintenance
2. Yes, you may be denied of divorce
3.It has nothing to do with divorce. You have to prove your own case for divorce.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
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1) you can file for divorce on grounds of mental cruelty 

2) the audio recordings will help you in making our case for mental cruelty 

3) you will have to pay your wife maintenance as she had never worked in past also 

4) you have to file counter case for divorce 
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
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1. according to sub section 4 of sec 125 crpc, she is not entitled to get maintenance because she has no valid ground to live separately from you. as far as the fact is concerned that you are drug addict then burden to prove this fact is now shifted upon her. In absence of establishing this fact she can't get maintenance.  

2. raise this issue in the court and you'll get appropriate order. 
Shivendra Pratap Singh
Advocate, Lucknow
2771 Answers
41 Consultations
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all the facts which you have mentioned are constitute valid ground for divorce. at this stage you should show before the court that you want to live with her and restore your marital life. then burden will shift upon her to establish valid ground to live separately. 
Shivendra Pratap Singh
Advocate, Lucknow
2771 Answers
41 Consultations
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cruelty is one of the ground for divorce. Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore, each case has to be decided on the basis of its own set of facts. Mental cruelty can consist of unusually callous, neglectful and deliberately harassful conduct, false accusation of adultery or unchastity, false charge of impotency, undue familiarity with third person, deprivation of property, drunkenness, false criminal charge by one spouse against the other, reprehensible conduct, refusal to have marital intercourse, refusal to consummate marriage, communication of disease, demand for dowry etc

So in your case you can file a case for divorce under the ground mental cruelty.Your wife living separately with out a valid cause and explanation then it also  restricted her to getting the maintenance amount from you. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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There is no yardstick to measure the quantum of maintenance amount to be granted by court.  Generally the court decides on 1/3 of the salary which will be computed after considering  standard deductions.from the gross salary.  She may be qualified but she is unemployed hence she is eligible for maintenance.
The grounds what you have mentioned may constitute for cruelty and you may apply for divorce on the grounds of cruelty.

1. if i prove that they given false case in police..will it help me for getting divorce..also for denying maintenance only to her ( i ready to maintain my child).? 
You cannot deny maintenance on this ground.

2. i agreed in the recordings that i slapped her once for being rude to my mother. will it affect me?

No it will not but she  may take defence n that line too.


 3. Now she asked for maintenance along with Judicial separation. how this will help me in getting divorce?

She has to give proper and bona fide reason for judicial separation only then she will become eligible for maintenance.
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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1. You can produce in the court all the proof which you have in your possession. 

2. If you prove the falsity of their case you will get divorce and also escape from the liability of having to maintain her.

3. You slapping her may go against you.

Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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1. If she is not employed, she is entitled to maintenance. However, recent Supreme court Judgement stated that highly qualified wives who are capable of earning, are not entitled to maintenance,

2. So, you must cotest fitingly stating that she is highly qualified who has left her husband if her own. So, she is not entitled to maintenance,

3. Normally, 1/5th to 1/3rd of the net monthly earning is awarded as maintenance for wife and son,

4. File a divorce suit on the ground of cruelty.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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1. Filing false case against husband amounts to cruelty. So, you can file a divorce case against her on the ground of cruelty,

2. I have mentioned in my earlier post as to how to contest the maintenance claim. Act accordingly,

3. You may be charged for committing DV for your slapping her. 
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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1) you can rely upon statement made by wife before police station that she does not want to live with you 

2) your medical examination would reveal whether you are a drug addict or not 

3) you are bound to maintain your wife and child . if wife is not working she is entitled to maintenance 

4) best option is to go in for divorce by mutual consent 
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
1. Actually i agreed to live with her on police station in written, she also given in the written that currently she is not willing to live with me.. Did those written statements on police station will be valid in court?
The statements given before the police at police station cannot be considered as primary evidence, but they may be useful to corroborate the evidences when a necessity arises.

2. What medical test i have to produce to prove my self that i am not drug addict.?
The burden to prove the allegations lise on the person who makes it hence you need not do anything except to remain a silent spectator and watch her movement which can be challenged.

3. What should be my next step? i am not willing to give maintenance for her.. i am ok with child maintenance or child custody!! 
You cannot say that you are not willing to give her maintenance amount because as per law it becomes your duty to maintain them and you have no escape to it until and unless she deserted you on her own without any valid reason. 

4. What are all the options available in this case for me.?
You have to properly challenge all her false cases and try to get success. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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1. Submit the document she wrote before he police stating hat she does not want to stay with you a an evidence of her not staying with you as per her own will. This document will be a very important evidence in your defence,

2. You do not have to prove that you ae not a drug addict. i is she who shall have to prove that her allegation is true,

3. Best strategy for you will be to say that you are willing to live with your wife and child. if she does not join you (she will certainly not join you), then you won't have to pay any maintenance to her,

4. The step suggested above is the best step to out done her allegation legally.

Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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1. The statements given to the police are not legally enforceable in the courts.

2. You can volunteer to subject yourself to the appropriate medical test to prove that you are not a drug addict.

3. You can contest her claim if you do not wish to pay maintenance to her. If  you can prove that you did not physically or mentally harass your wife you should be able to defeat her claim.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0

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