• Maintenance

I was married in Sept 1990. Son was born in Sept 1991. Now major (24 years).

Wife left matrimonial home In July 2004, with the son (then 13 years) and filed case of guardianship rights etc. and got custody of the child. Also filed criminal case of violence but I was not convicted.

Case over. Six (6) months later I filed divorce case. Cross Examination over 5 years back, at final hearing stage.

Maintenance u/s 24 of HMA granted to child in Feb 2009. I paid entire amount in advance till the child became major in Sept 2009.

Later wife filed a case for maintenance in a different court u/s 125 of Cr. P.C.
She did not get any favour as her salary is equal to my salary, but interim maintenance granted in favour of MAJOR son.

I filed revision petition as my Son has not given any written authority to wife to seek maintenance on his behalf. Neither he has signed any vakalatnama, but judge rejected revision petition. 

My second objection was that the wife has prayed 50% of the child's expense. But the judge granted much more, approximately 80% of the expense.

My question is whether my wife is entitled to get maintenance for a major child, who is our only child. She is a class one officer in Govt of India and can maintain only one son. 

Can she get more than her prayer of 50 % maintenance?

Can she claim maintenance without the written authority from a major son.

Regards
Asked 1 year ago in Family Law from New Delhi, Delhi
Religion: Hindu
1)wife cannot be granted more than that she claimed . if wife has claimed 50 per cent court cannot award 80 per cent 

2) you have not mentioned whether your son is working or not . if he is working major son would not be entitled to any maintenance 

3) son should authorise mother to file case for  claiming maintenance 
Ajay Sethi
Advocate, Mumbai
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1) if son is studying he would be entitled to maintenance . 

2) in case both husband and wife are working both should bear expenses equally for maintenance of the son 

3) working wife is not entitled to maintenance 
Ajay Sethi
Advocate, Mumbai
23377 Answers
1226 Consultations
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N THE COURT OF MS. MADHU JAIN
ADDL. DISTRICT JUDGE
ROHINI COURT : DELHI
M No. 28/07

Sh. Neeraj Aggarwal – Petitioner

Vs.

Mrs. Veeka Aggarwal – Respondent

ORDER


1.. This is an order on application under Section 24 of Hindu Marriage Act filed by the applicant/ wife, respondent in the main case (hereinafter referred to as the applicant) against the non-applicant/ husband, petitioner in the main case (hereinafter referred to as the non-applicant) for grant of maintenance pendentelite and for litigation expenses.


2.. In the application it is stated that the applicant/ wife has no independent source of income and she is not given any kind of maintenance by the non-applicant/ husband to live her life properly and therefore she is facing much hardship in the life. The non-applicant/ husband has flatly refused to maintain her. The non-applicant/ husband is working in a private sector as a Senior Software Engineer HPC in STM Microelectronics Pvt. Ltd., Plot No.1 A, Knowledge Park-2 (near LG Gol Chakkar), Greater Noida and is earning about Rs. 80,000/-pm. He has no other liability and he is not discharging his responsibilities towards the applicant/ wife with ulterior motives to harass and humiliate the applicant/ wife. The applicant/ wife is the legally wedded wife of the non-applicant/ husband and, thus, being a husband, he is bound to maintain the applicant/ wife. The applicant/ wife is fully dependent on the mercy of her parents, who are having other liabilities also and she has no independent source of income to maintain herself. It is, therefore, prayed that the non-applicant/ husband be directed to pay a sum of Rs. 30,000/-pm as maintenance allowance pendentelite to the applicant/ wife and expenses of proceedings.


3.. The application has been contested by the non-applicant/ husband, who in his reply has stated that the applicant/wife is a well qualified graduate Engineer in the field of information Technology and just after the marriage she had joined the service of a private firm and was drawing a handsome salary as initially she was taking Rs. 5000/-pm. Now-a-days she is competent and qualified to earn thousands of rupees per month. She is a qualified trained engineer and she is self stand financially in all respects. The non-applicant/ husband has never neglected or refused to maintain her in any manner and she was duly maintained during her stay in her matrimonial home. The non-applicant/ husband is still ready and willing to provide financial assistance or maintenance if required or needed by her for any purpose in any manner. It is not denied that the non-applicant/ husband is also a qualified engineer and is employed in Greater Noida, U.P. but the actual amount of monthly salary being drawn by him is Rs. 45,000/-pm. It is stated that he has to maintain his retired father and ailing, diabetic mother and old grandmother and also to treat his two married sisters and to look-after his younger unmarried under-education sister of marriageable age as his younger sister is doing B.Ed. from a regular college. He is also paying loan premiums and other household expenses. The applicant/ wife has herself deserted her matrimonial home without any threats or atrocities caused to her by her in-laws and she is not returning to her matrimonial home despite the petition for restitution of conjugal rights filed by the non-applicant/ husband. It is stated that the non-applicant/ husband is publicly and openly as well as warmly welcoming the applicant/ wife to her matrimonial home but she has started demanding maintenance sitting in her parental home to feed her greedy parents and selfish relatives instead of returning to her matrimonial home and to assist the non-applicant/ husband and her other in-laws in her matrimonial home at the time of need. It is stated that the conduct, attitude and nature of the applicant/ wife is of such type that she is not entitled for any maintenance. Further more, she has also filed a separate petition U/s 125Cr. P.C. for maintenance only with a view to get the non-applicant/ husband harassed in a criminal court. It is stated that the applicant/ wife is not a helpless or poor lady and she is not incapable to maintain herself as she is a well qualified engineer and is already an earning hand. She is handing over all her income to her parents. She does not require any monastery assistance from the non-applicant/ husband as she is already having a good bank balance in State Bank of Bikaner & Jaipur at Rohini, Sector-5,Delhi , bearing A/c No. 61005521399 and several other bank accounts also. She also has some immovable properties in her name. It is denied that she requires Rs. 30,000/- as maintenance and other charges as prayed. It is, therefore, prayed that the application be dismissed with heavy cost.


4.. I have heard the Ld. Counsel for both the parties and have carefully perused the record.


5.. During the course of arguments it has not been denied by the Counsel for the applicant/ wife that the applicant/ wife herself is an engineer graduate in the field of Information Technology. Ld. Counsel for the applicant/ wife submitted that the applicant/ wife submitted that the applicant/ wife joined the job for some time after the marriage but thereafter due to the marital disputes she is not in a position to pursue her job and has left the same. In her entire application the applicant/ wife has no where stated that she is also an engineer graduate in the field of Information Technology and that she also joined the job after her marriage. Those seeking justice and equity from the Court must come to the court with clean hands. It seems that for obvious reasons and to extract money the applicant/ wife has not disclosed her true qualifications in the Court. The applicant/ wife is an engineer graduate and, therefore, can very well maintain herself and there is no need for her to depend upon the mercy of her parents or on the non-applicant/ husband. The purpose of Section 24 of H.M. Act is not to extract money from the other party and the court should not be a forum to extract the money or to blackmail the other party. In II (2000) DMC 170 titled as Mamta Jaiswal Vs. Rajesh Jaiswal, the Hon’ble Madhya Pradesh High Court has observed as under:-

“Section 24 – Pendente Lite Alimony : Purpose of Enactment : Not meant for supporting idle (Qualified) spouses waiting for ‘Dole’ to be Awarded by her husband – Section 24 has been enacted for purpose of providing monetary assistance to such spouse who is incapable of supporting himself/ herself in spite of sincere efforts – Spouse well qualified to get service immediately with less efforts is not expected to remain idle to squeeze out his/her purse by cut in nature of pendent elite alimony – Wife well qualified woman possessing qualification like M.Sc., M.C. M.Ed – How can such a lady remain without service – lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and put her burden on husband for demanding – pendente lite alimony from him during pendency of matrimonial petition.”


6.. In I (2001) DMC 19 titled Sangitaben Rasiklal Jaiswal Vs. Sanjay Kumar Ratilal Jaiswal, Mehsana, the Hon’ble Gujarat High Court has held that the wife is entitled for Free Legal Aid and therefore, the Court should keep in mind that wife is entitled for free legal services also.


7.. In the present case the applicant/ wife is a well qualified engineer and, therefore, there is no need for her to sit idle at home waiting for the maintenance from the non-applicant/ husband. In the peculiar facts and circumstances of the case since the applicant/ wife is well qualified and, therefore, can earn handsome amount by working and there is no need for her to be financially dependent upon her parents or on the non-applicant/ husband, she is not entitled for any maintenance. While hearing arguments on the application it was ordered that the maintenance shall be granted to the wife till the disposal of the petition. This sentence in order sheet dated 27.08.2007 only means that the wife is entitled for the maintenance from the date of filing of the application till the disposal of the main petition and not thereafter. It no where reflects that the wife shall be entitled to maintenance I every case come what may.


8.. Therefore, in view of the above said discussion, the application U/s 24 Hindu Marriage Act of the applicant/ wife is dismissed. There shall be no orders as to cost. File be consigned to Record Room.
Announced in Open Court
Dated : 19.09.2007
Ajay Sethi
Advocate, Mumbai
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n Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3) MPLJ 100, the High Court of Madhya Pradesh while dealing with identical situation observed that well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. For better appreciation, relevant paragraphs of the said decision are reproduced hereunder:-



"In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure? Whether such spouse should be permitted to get pendent lite alimony at higher rate from other spouse in such condition? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendent lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C M.Ed. Till 1994 she was serving in Gulamnabi AzadEducation College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service? It really put a big question which is to be answered by Mamta Jaiswal with sufficient cogent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a „dole? to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice versa also. If a husband well qualified, sufficient enough to earn, sit idle and puts his burden on the wife and waits for a ?dole? to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, at least, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversary who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendent lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That cannot be treated to be aim, goal of Section 24. It is indirectly against healthiness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardizing their hard earned income by toiling working hours
Ajay Sethi
Advocate, Mumbai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL  APPELLATE  JURISDICTION
CIVIL WRIT PETITION  NO. 2117   OF 2012


CORAM : SMT. SADHANA S. JADHAV, J
DATE     : 8th April, 2014


Bombay High Court: Allowing a petition, a division bench comprising of Sadhna S. Jadhav, J held that a son is entitled to maintenance from his father even after attaining the age of maturity. In the present case, the petitioner's parents were divorced and permanent custody of the child was given to the mother. The petitioner had filed the application on the grounds that it is the obligation of the father to maintain him as he is studying and fully dependent upon his mother. The Counsel for the petitioner had argued that divorce between the parents should not disentitle the child from pursuing his further studies and making himself capable to earn a decent living. The Counsel placed reliance on the judgment of the Supreme Court in the case of Kirti Malhotra vs. M.K. Malhotra 1995 Supp (3) SCC 522 to demonstrate that the petitioner would be entitled to maintenance during the period he is seeking education. The father opposed the application on the ground that as the son had attained majority age he is no more liable to pay maintenance to him. The Court after going through the judgments and arguments placed before it ruled that major son of the well-educated and economically sound parents can claim educational expenses from his father or mother irrespective of the fact that he has attained majority [Jayvardhan Sinh Chapotkat vs. Ajayveer Chapotkat, Civil Writ Petition No. 2117 of 2012, decided on April 8, 2014]
Ajay Sethi
Advocate, Mumbai
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1. No maintenance lies for adult male child . For female it is upto her marriage.
2. The quantum of maintenance as thumb rule varies from 1/3 to 1/5th of established income of husband.
3. Since major son is not entitled to maintenance , her petition will fail.
4. Produce the age proof of your son. The petition will be dismissed. However claim for maintenance for herself shall continue.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
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1. She is not entitled to maintenance of her major child/

2. No relief can be granted  more than what has been prayed in the petition,

3. Since your son is a major person, your wife can  ot represent him with out a POA in her favour. 
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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1. Your son is a major for which he does not deserve any amount for his maintenance,

2. Whether your wife can maintain her only child or not is not the pertinent question of law here.
Krishna Kishore Ganguly
Advocate, Kolkata
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233 Consultations
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Maintaining the child is joint responsibility of Parents so even if she's earning good you are bound to pay for son. Even if he's major till the time he's studying you will have to maintain him. Once he starts working you may file an application informing the court that he has started working so now you are not obliged to pay. 


Regds, 

Adv. Payal
Payal Arora
Advocate, Pune
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1. It is your son who is entitled to get maintenance for himself. Your wife cannot seek maintenance on his behalf as he has attained majority now. If your son has to seek maintenance he has to stand on his own feet in the court by filing a case for maintenance. 

2. You can move the High Court against the rejection of your revision petition.

3. The court could not have granted more maintenance than what was actually sought. 
Ashish Davessar
Advocate, Jaipur
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449 Consultations
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If your wife is employed and draws a handsome salary and the same has been proved to the satisfaction of the court, she will not become eligible for maintenance.  
Your son being major and also was under the custody of his mother during his minority, he will be dependent on his mother hence he cannot claim maintenance from you also since he is major now though  a student, he is not eligible for seeking maintenance from his father alone.
T Kalaiselvan
Advocate, Vellore
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128 Consultations
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