While I chose the family law category, the advice I need is about a criminal statute, specifically CrPC 125 (interim maintenance of wife). Husband H and Wife W got married in Uttarakhand in 2015. Immediately upon marriage they flew to their marital home in country C, where H worked. They lived together for about 2 months, and then W returned to India. In 2017, W filed for divorce on the grounds of cruelty. The matter is languishing in the family court. Within a few months of filing the HMA 13(1)(ia), W filed for interim maintenance under CrPC 125 with false information/facts. The summons for H were served within town to his estranged father, who wrote a letter to the court explaining that H is estranged to him, and has not lived in India for many years. No attempt was made to serve summons to H at his address in country C. After a few dates, in Jan 2019, based on the false information provided by W, the family court passed an ex parte order against H for a large amount of monthly maintenance. Subsequently, through his lawyer, when H became aware of the case and the order, he filed an application for restoration under CrPC 126(2) in April 2019. 2.5 years later, the family court still steadfastly refuses to rule on the CrPC 126(2) application filed by H. In the meantime, the ex parte order stands and the arrears keep growing. A couple of recovery orders/warrants have been passed. W's lawyer has also applied to have the recovery order sent to Ministry of Foreign Affairs for action via the Indian embassy in country C. QUESTIONS 1. Legally, can H petition the Uttarakhand High Court in Nainital to direct the family court to rule on H's CrPC 126(2) application? In practice, if he does that, what are the chances of success? 2. Can H petition the Nainital High Court to direct the family court to grant H's CrPC 126(2) request? What are the chances of success? 3. Favorable ruling on 126(2) usually translates into automatic annullment of the 125 order, and any pending 125(3) recoveries. At the same time, while ruling favorably on 126(2) courts ask the petitioner to deposit a certain amount. Can H petition the Nainital High Court to direct the family court that any such deposit amount must not be greater than 3 months (i.e. between ex parte order under 125 in Jan 2019 and restoration application under 126(2) in Apr 2019) worth of maintenance per the annulled order? What are the chances of success? What statutes, precedents or argumentations can be cited/made? 4. What enforcement mechanisms for 125(3) are available to the embassies and Ministry of Foreign Affairs? Does the family court have the authority to direct the embassy/MFA or can only High Court/Supreme Court do that?
H can file petition in HC to direct family court to pass orders on his application under section 126(2) crpc
2) court would direct petitioner to comply with family court order before grant of any reliefs
3) H can offer to deposit 50 per cent of amount directed by family court
4) family court can request embassy ministry for assistance
#3 - Does that mean 50% of the arrears for 2.5 years? Or 50% of the amount for 3 months? #4 - "Request" sounds different from "Order". Or is it term of art that means the same thing? "Assistance" in what? What form might such "assistance take"?
It would be 50 per cent of arrears for 2 .5 years
requests for service of summons/notices/judicial processes on persons residing abroad shall be addressed to the Under Secretary(Legal), IS-II Division, Ministry of Home Affairs, 9th Floor, Lok Nayak Bhawan, New Delhi- 110003. All requests shall be forwarded through post only with a covering letter from the Registrar/Court official giving the following information:
a) Material facts of the criminal matter including purpose of the request and the nature of the assistance sought.
b) The offences alleged to have been committed, a copy of the applicable laws and maximum penalties for these offence
Name, designation, telephone and fax number of the person/officer who will be able to give any clarification, if required.
d) The complete address of the issuing authority to which the judicial papers/service reports may be returned.
e) Approval of the competent authority to bear any expenditure, which they be charged by the foreign government/agency for the service of the documents.
f) Degree of confidentiality required and the reasons therefore(in case of confidentiality requirement).
g) Any time limit within which the request should be executed. This will be subject to allowance of sufficient margin of time by the requesting agency, as indicated in para 3(iv) of the guidelines
b
1. Yes he can file such application
3. He can file and ask for prayers but the court will only grant it on merits.
4. You can only serve summons and warrant through MFA
1. The family court has to pass an order whether to admit or to reject the application filed by the husband to set aside the orders passed by in in the interim maintenance application against the husband.
If the delay is inordinate and the petition is kept pending without any valid reason, the husband can approach high court with petition under section 482 cr.p.c. to direct the family court to dispose the pending petition expeditiously.
2. You mean supreme court, no, you may have to first exhaust the remedies before high court.
3. First of all you may have to wait for the orders to be passed by the family court after which you can approach high court with an appeal to get your grievances redressed by high court.
4. No, the Indian courts cannot exercise their authority beyond the territorial limits of the country.
1. The high court may pass an order to deposit 50% of the arrears of maintenance amount.
2. You throw more light to your query, the abbreviated forms of query may not fetch you proper opinion from different advocates.
An application for restoration has been filed by you against the ex parte order. Now the family court isn't disposing your application. You should file a petition in the uttarakhand high court at nainital for expeditious hearing and disposal of the case pending before the family court.
Moreover, is the wife earning? That had to be taken into account while passing the order.
The high court will entertain the petition and order accordingly ie to dispose of the case pending in the family court. Then you may prosecute the case in tye family court and pray what you have stated here. The court may or may not decide in your favour.
The order of the family court xan be challenged by you in the high court.
1. H should file petition before the Nainital High Court praying for setting aside the order passed by the lower Court
in connection the application filed by H u/s 126(2) of Cr.P.C.
2. The High Court will direct the lower Court to rehear the matter. The chances of getting favourable judgment is
reasonably high.
3. Yes, such prayer about deposit amount can be made. H should stress on the fact that W dishonestly avoided
sending the summons to H at his place though she knew H's address and also that the relationship of H with his
father is estranged.
4. Family Court can pass order upon MEA or Indian Consulate to serve Summons or pass directions as it deems fit.
Dear client,
1) it is the latter option
2) request is different from the order.
Thank you
