• Maintenance for wife and child

Married Jan-2008, Daughter born in Aug-2010 but has a medical condition called Cerebral Palsy, my mother had a kidney transplant, wife living away since Nov-13 in Delhi. I am a senior officer in Merchant Navy. Wife has filed CrPC 125 in Delhi and complaint in CAW. I am from Lucknow, wife's matrimonial , parental home is Lucknow and daughter was born in Lucknow. Wife is claiming she is living in Delhi because of domestic violence and daughter treatment. She has no proof,evidence,witness,record or photos to prove her lies. Fantastic facilities exist in my city too for daughter's treatment but she is only doing this to harras me. She is M.Com degree holder and is showing that she is working on a measly pay of 12K but we all know she can earn much better due to her qualifications.She is also working in her uncle's firm to hide her pay. I communicated several times through SMS earlier to come back home but she refused to disclose her address in New Delhi but she changed her telephone number and blocked me on whatsapp. Her family in Lucknow avoided RCR and Custody of child notices in Lucknow. Finally she gave her address in CAW and then she sent CrPC 125 notuce to me mentioning her rentrd address in New Delhi. We finally sent RCR and Custody of Child Notices to her Delhi address. Her allegations of DV are also vague with no place,time,injury mentioned. I have audio recording when I went to bring her back from Delhi to Lucknow but her relatives even refused to disclose her address. I have video recording where my daughter's Nani is running away upon seeing me taking my daughter away and not even letting me touch my daughter. I have all necessary facilities for my daughter (Medical, Physiotherapy,Premium Special Education school, Vasan Eye care hospital) all within 3 km of my residence where I am willing to give the best to my daughter. I had filed for RCR in May-2014  where initially they did not accept  notices in Lucknow though her father was living here. I have not been paying her anything since Jan-2014 in order to bring her back but about 50k has been in her bank account throughout which was transferred from my account but she has not utilised same saying the account is dormant.
My queries are-
1. What are the chances of me getting my daughter's custody looking at the nature of my job where I am away for 6 months in a year. I prefer joint custody so that both mother and father's love is given to my daughter.
2. How much maintenance /interim maintenance can I be expected to pay even though I am willing to provide the best of facilities to my daughter in my city as it would be very cruel to me if my daughter is kept in another city. My wife is showing a huge disparity in our payscales. I earn about 25 lakhs per annum but it is a contractual job where I get nothing when I am at home plus its not a permanent job.
3. Is there anything wrong if I take a home loan now for my home which is actually in a very poor condition. My first hearing for CrPC 125 is in mid Nov 2015 in Delhi.
4. How to show that I actually owe another property , in my name, to my bro-in-law living abroad since he was the one who paid for my mother's medical expenses for transplant abroad in 2006.
5. She is demandinh divorce in CAW, is it advisable to withdraw RCR now? What should be my legal step.
6. How to ensure that the Court grants maintenance and not alimony
7. What are the chances of CrPC 125 being transferred through SC to Lucknow from Delhi.
8. Any other advisable legal steps.
9. My next date for Delhi CAW is in a week. They have provided me a list of streedhan but it was signed by me before matriage in good faith and naivety without cross checking. Now when I checked, several items are missing and were never provided. No photo record of items provided exist.
I have bank statements where  intermittently it can be shown that I gave money to my wife on several occassions.
Asked 1 year ago in Family Law from Lucknow, Uttar Pradesh
Religion: Muslim
1) you can seek joint custody of the child . In recent cases some courts are awarding joint custody 

2) court can award around one third of your income as maintenance on account of your daughter health 

3) you can take a home loan 

4) withdraw RCR and opt for divorce by mutual consent 

5) court won't transfer 125 Cr OC application to delhi wife convenience is taken into account 

6) once you have signed list of streedhan it would be binding upon you and you have to return said items to your wife as per list mentioned 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
1. You can have visitation rights of the child but chances of getting custody from mother is always bleak possibility.
2. The maintenance of wife and child generally varies from 1/3 to 1/5 income of husband.
3. EMI deducted towards home loan is no consideration as it is for your benefit only.
4. Get a loan agreement executed between him and you to establish this case.
5. If she is ready for MCD go for it and contested cases takes lot of years.
6. Both are same.
7. Chances are very slim unless you establish by documentary proof that she does not stay in Delhi.
8. Fight the case on merit.
9. If it is signed by you then you have to honour it.
Devajyoti Barman
Advocate, Kolkata
5131 Answers
54 Consultations
4.9 on 5.0
Hi, it is the duty of the husband to maintain his wife  the quantum of maintenance is depending upon the facts and circumstance of each case and it will normally depending upon your income social status.

2. As per latest Supreme Court ruling the well educated women will not entitled for the maintenance as from your case she is also earning so you may also submit your argument stating the facts of earning capacity of your wife  and court will consider it.

3. Normally the custody of the child will be handed over to the mother the court will only consider in whose custody the welfare of the child will be protected.

4. As your religion is Muslim you are not able to file a petition for divorce you can give divorce through the customary practice before two witnesses.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. You have very bleak chance of getting the custody of  your daughter since she is less than 5 years old as mother is considered as the natural guardian of a child up to 5 years of age,

2. Normally court awards any amount in between 1/5 to 1/3rd of net monthly earning of husband if wife is not earning. Here, her earning will be deducted from her monthly requirement of maintenance amount. You should mention about your average monthly income less expenditure and EMIs to be paid for any loan taken,

3. You should have taken home loan before the application for maintenance was filed. You can do it now and try to  put forth your argument that the house needed immediate repair for your safety,

4.talk to your CA and make books of accounts showing your debt to your brother in law which is repayable in monthly installoments,

5. RCR is useless and I always advise against it. When she wants divorce, ask her for mutual consent divorce petition and get out of this matrimonial mess of yours at all costs,

6. Negotiate with her and go for MCD with one time payment towards compensation,

7. Very bleak chance of transferring the case from your wife's place to your place,

8. Go for MCD which will be decided with 6 & 1/2 months and is hassle free,

9, If asked by police or Court, inform that she has taken away whatever is missing from the list,

10. Your Bank statement will help you to establish that you had taken well care of her financial requirements.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
If you wish to stay with your wife and daughter then don't withdraw RCR. You have all proofs proving to be a dutiful husband this is all you have to prove in the court. 

In CAW when you go inform them about the harassment meted out to you by your wife and in-laws. Show them the RCR petition and till them that she has been staying separately for no reasonable cause. 

Wife who stays separately without any reasonable cause are not eligible for any maintenance so bring it in the notice of the court. Also show the court about the transfers made by you proving that you are still maintaining your wife. 

If you don't want to break your marriage inform it to the court strongly ay be the court will direct your wife to start cohabiting with you. 


Regds, 

Adv. Payal 
Payal Arora
Advocate, Pune
331 Answers
7 Consultations
4.1 on 5.0
1. What are the chances of me getting my daughter's custody looking at the nature of my job where I am away for 6 months in a year. I prefer joint custody so that both mother and father's love is given to my daughter.
You have to fight the case properly in the court where the child custody case is going on, however in the given situation that your daughter is aged less than 5 years, affected from mental ailment needing mother's care, also the nature of your job to be away for 6 months, may go against you.

2. How much maintenance /interim maintenance can I be expected to pay even though I am willing to provide the best of facilities to my daughter in my city as it would be very cruel to me if my daughter is kept in another city. My wife is showing a huge disparity in our payscales. I earn about 25 lakhs per annum but it is a contractual job where I get nothing when I am at home plus its not a permanent job.
There is no yard stick to measure the quantum of maintenance amount, however it depends on how she is able to prove your income, further since she is employed, you can repudiate her claim for maintenance, let she fight back, dont budge to the pressure. 

3. Is there anything wrong if I take a home loan now for my home which is actually in a very poor condition. My first hearing for CrPC 125 is in mid Nov 2015 in Delhi.
There is no bar in availing home loan or any loan, it is your choice, the case is not related to this. 

4. How to show that I actually owe another property , in my name, to my bro-in-law living abroad since he was the one who paid for my mother's medical expenses for transplant abroad in 2006.
You do not have to explain each and every thing before court, it is her duty to prove your income, so allow her to come to the court with the claim and you may challenge her claim accordingly.

5. She is demandinh divorce in CAW, is it advisable to withdraw RCR now? What should be my legal step.
What is the use of forcing an unwilling wife to rejoin you in the name of RCR.  RCR is actually a waste exercise, if she is demanding divorce, you can ask her to sign papers for mutual consent divorce with arrangements or joint custody of the child. 

6. How to ensure that the Court grants maintenance and not alimony
There is no question of alimony in 125 cr..c. case, it is only for monthly maintenance.

7. What are the chances of CrPC 125 being transferred through SC to Lucknow from Delhi.
The law will be in favor of women only hence you may not have chances to get it transferred to Lucknow.
8. Any other advisable legal steps.
What is that you need, specify

9. My next date for Delhi CAW is in a week. They have provided me a list of streedhan but it was signed by me before matriage in good faith and naivety without cross checking. Now when I checked, several items are missing and were never provided. No photo record of items provided exist.
You can deny possession of those missing items and should agree to return whatever is available with you, this will make you trust worthy of our statement. 

I have bank statements where  intermittently it can be shown that I gave money to my wife on several occassions.
This is a good evidence to prove that you have been caring her in the past and it was she who voluntarily abandoned the matrimonial house on her own hence the claim stands repudiated. 
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
1. That you live away from home for 6 months in a year is not a ground to deny the custody to you. Parental neglect has to be proved in the court to deprive him/her of the right to exclusive or joint custody. If the gap between your and her salary is large it works in your favour.

2. Nobody can foretell what amount the court will eventually order you to pay, but it may be 1/3rd of your income. You are free to contest her claim if she has not been a victim of physical or mental abuse.

3. Taking a home loan has no bearing on the maintenance claim which is filed against you.

4. Did you enter into a sale agreement with your bro-in-law? If yes, you can produce the sale agreement in the court.

5. RCR will have no bearing on the affirmative claims which your wife has made against you. So you do not need to withdraw it.

6. If you oppose her case in the SC she may not succeed to have it transferred. There is a departure by the SC from its earlier practice of liberally transferring the cases to the place of residence of the wife.

Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
1) you can file revision in sessions court and seek permission to go abroad fir work purposes 

2) you can transfer self acquired property in favour of sister 

3) file your reply in 125 cr PC complaint at the earliest 

4) send an email to wife  regarding transfer of funds to wife account 

5) you have to pay for child maintenance in delhi if custody of child is with mother 

6) file for quashing of 498A if allegations made in complaint are vague 

7) file your income tax returns showing your present salary 

Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
1.IMPORTANT: Is it better to apply for revision in Sessions Court (3 months have passed already since the order of denial of permission to leave India for 4-5 months for job) or go for 482 for quashing of lower court order or go for 226 writ petition. The case is in Delhi. How to ensure that I get my job normally?

The ruling is that that you my not be available for trial and the case will virtually put to halt during your absence is an advantage point for the court. You may prefer a revision against this order and also can file a quash petition giving the genuine reasons from your side. 





2. My sister is shifting to Australia soon for which she needs her share of inheritance for buying a house there. I intend to transfer my self acquired properties in her name as her share of inheritace as well as to return the money she spent on my mother's kidney transplant in 2006) so that I keep the house belonging to my mother (mother's house will continue to stay in my mother's name). Will this transfer of my self-acquired properties be viewed negatively by the Court?

No.  This cannot attract the sore eyes of law. 





He said at the max it will lead to a small fine but I feel that it might go adversely against us in eyes of the judge. What is the best option now, to file it immeiately or wait for the first date of trial?

You can go by your advocate, he may having a different strategy to tackle this case.





4. I had deposited a sum of amount 2.50 lakhs in her bank accout for expenses in July-2015 but she is not utilising that amount claiming ignorance of the amount transferred. Infact I had never kept her bank account empy. Is it a drawback for me if she is claiming ignorance? How to ensure that she was aware of this?

You can produce the deposit details before court so that the court will come to know about her behavior in the court. 





5. I had donated and started a Cerebral Palsy physiotherapy center for the benefit of my daughter and other children in Mar-2014. She cut off all ties once she was informed about the opening of the Cerebral Palsy center. Will I still be expected to pay for my child's maintenance in Delhi when I can avail free treatment for my daughter in Lucknow at a centre (which was infact created by me) as well as free schooling for her in DPS (a reputed school obviously),Lucknow?

You can highlight this issue during trial of the case.




6. What is the best way to expedite or complete police investigation in 498a,406,34, etc as I had written several reminders to DCP,ACP,IO,SHO pleading same but the police has power to continue the investigation for upto 3 years !! It will obviously affect my job , my future, my life destroying everything what I have worked so hard for, WHAT IS THE BEST WAY TO TACKLE 498A,406,34 for a merchant navy officer who has to be away on duties for almost 5-6 months at stretch?

All are equal before law, so all the cases will tried as per their own priority.  You may have to wait 





7. I have been teaching at a local college since Jan-2014 at a payment of about 6,000-12000 pm since the denial of permission for me to leave the country by the court. I get this payment in hand from the institute as it is not regular pay but classes are held as and when students collect for a course. How to show this as my present salary to the Court?

You can bring this issue to the knowledge of court during trial.




T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5131 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3513 Answers
129 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
423 Answers
15 Consultations
4.7 on 5.0
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2693 Answers
41 Consultations
4.9 on 5.0