My son wife first requested divorced and accordingly mutual consent divorced filed U/S 13(b). When next date come for proceeding in between she has given objection in Family court and demand huge money and we have refused to pay and at alter stage petition U/S 13(b) dismissed with observation. In the mean time she has filed FIR U/S 498a, 506, 504, 114 and filed Maintenance U/S 125 all this filed in the year May-2019 and in the year Aug-2021 she left to Canada appointed her mother as POA. Now request please give me advice on following: Whether POA is entitled to defence the petition filed (admissible) in Criminal cases filed by complianee If Husband and wife both are living outside India whether Maintenance petition U/S 125 is admissible here in India Does wife entitle to avail maintenance U/S 125 though she is living outside India since long as she is citizen of the Canada. As per Canadian law wife will not get maintenance if she is working lady or highly qualified. How to quash FIR U/S 498a, 506, 504, 114 let me know after filing petition U/S 13(b) does FIR can to done U/s 498a……. In Gujarat High Court our petition for review where we got adverse observation U/S 13(b) judgement and in that petition son wife submitted affidavit stating that she is high qualified and forgo permanently Alimony and Maintenance” the petition dismissed at the admission. Now her lawyer say the once petition dismissed by High Court Division Bench it mean the enclosed affidavit is also null and void. So I would like know once affidavit is formed whether is get terminated is we lost the case? My humble request please give your best advise
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1) POA can appear on her behalf but wife will have to come to court to give evidence
2) marriage was solemnised in India.so Indian courts have jurisdiction
3) quashing is to be done only in exceptional circumstances
4) wufe can seek maintenance in dismissal of petition
But wife is living in Canada and asking Maintenance in India is it possible does Apex court has any guidelines for this circumstances.
You can take the defence that wife is Canadian citizen ordinarily resident of Canada and Indian courts would have no jurisdiction as wife has renounced Indian citizenship
2)
In the Supreme Court decision of Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353, Supreme Court examined the underlying purpose as well as the social context of Section 125 of the Code.
Further, while deciding the matter of maintenance, it is important for the Court to bear in mind that technicalities such as jurisdiction should not impede the object that is sought to be achieved by a provision such as Section 125 CrPC which is essentially social welfare legislation.
The Bench stated that the Principal Judge carefully analysed the material on record before coming to the conclusion that territorial jurisdiction of the Court can be conferred in the case which has been instituted by the respondent/wife.
Adding to the above, Court noted that as per Section 126 CrPC, proceedings under Section 125 CrPC may be instituted against any person in any district where he is, or where he or his wife resides, or where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.
1. As far as criminal case is concerned (498a), her presence is only required at the time of evidence,
the evidence can be recorded through VC also, so, the criminal case has no impact if she left for Canada,
2. She is entitled to file a case of maintenance, however, the eligibility for maintenance depends upon the facts/evidence,
(her affidavit given during the 13b ist motion will have a negative effect on her maintenance case)
3. affidavit has due value in the eyes of the law, it cannot be straight away refused,
Outcome of a maintenance case depends upon various factors such as earning capacity, educational status, Living Standard, Financial Status, Properties held, assets, responsibilities, custody of children, expenses on marriage etc,
Hi, Power of Attorney can represent in the family court matter. However they can't give evidence. However they can conduct day to day affairs in the court.
2. For quashing 498/A you need to file petition under Section 482 before the Hon'ble High Court
Yes the above applications are maintainable but you can object them on several grounds and counter the same.
Use the Affidavit she filed before the Guajarat HC, to establish before the Court handling the 125 CRPC matter to prove the fact that she is highly qualified and is a working professional in Canada and not dependent upon the husband, hence not entitled to any maintenance.
In criminal cases the accused cannot be represented by a power of attorney agent, however the defacto complainant need not appear before court on each and every hearing, she can appear before court for deposing evidence alone as prosecution witness.
In maintenance case under section 125 cr.p.c. she can be represented by a power agent.
The maintainability will depend on various conditions and reasons, if she has sought for maintenance but she is employed and drawing handsome salary, then the court may reject her petition for maintenance, provided her employment and income details are provided to the court to convince the court about her financial status.
The police can very well register FIR for the dowry harassment and other acts of cruelty if their marriage has not been dissolved on the date of her complaint.
You can wait for the charge sheet to be filed before trial court after which you can file a petition under section 482 cr.p.c. before high court to quash the charge sheet for the reasons you strongly rely upon.
The affidavit is not an evidence if the court did not take consider the the same and dismissed the petition based on her affidavit.
There are plenty of judgments stating that the wife, if employed and drawing a handsome salary income or having sufficient source of income to sustain her expenses, then she would not be eligible for maintenance.
You ask your lawyer who will provide the same
