1) withdraw appeal .if both are working and have equal incomes wife would not get maintenance
2) your lawyer has advised you correctly
Divorce petition
My sister had filed for petition for divorce 2 years back. She had demanded alimony, interim maintenance till ongoing court case, stree-dhan along with certain charges like they were putting financial pressure on my sister and family by demanding gold through ceremonies etc. in her petition. Lately I am not feeling very confident with my lawyer due to 2 events : 1. After most recent hearing my lawyer said that the judge does not seem to be in favor of interim maintenance since both of you have similar income level and we should consider taking it back otherwise it will go to higer courts and we would have to contest it there, rather we should contest on other charges in the petition. 2. Few months back we requested him that we should also file for domestic violence (We did not file it in the first petition since our father was going through terminal illness and our lawyer advised that DV would involve lot of back and forth with police and courts and your family is already under lot of stress, without DV too we should be fine). My father passed away few months back and we decided we should apply DV since that was true and it would create more pressure (The other side is saying that we would just give divorce and nothing else). But he rejected the request outright and gave the same reason as earlier. Please give me advice on the following: 1. Should we take back the interim maintenance appeal as suggested by him? 2. Should I be concerned about my lawyer's approach with withdrawing interim maintenance appeal and not applying DV for the case? What would be a suggestion to make her case stronger?
Asked 3 years ago in Family Law
Religion: Hindu
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7 Answers
1. Since you have already filed the petition seeking interim maintenance, let it go on.
Wait for the developments and court's decision on it instead of withdrawing the same at this stage.
Do not withdraw.
2. DV case can be filed in the magistrate court itself and there is no necessity to approach police station for filing the DV case, of course the matter will be referred before district social protection officer for mediation before it is taken on the files of the court for trial, to ensure reconciliation if the opportunity is used by both the parties.
1) No matter if both the spouses are working irrespective for bread and butter. Don't take back your interim maintenance case.
2) I will suggest to club both the cases in the same court DV and interim maintenance cases to expedite your case in final order. But fo not withdraw DV case.
It's on you the withdrawal will not help you in any way.. It's better to get it disposed by arguing on merits
You can also go for dv but you will only get maintenance in dv when you haven't got enough in other proceedings compared to DV
1. if wife is earning and capable enough to handle herself financially then court does not grand any maintenance to wife. If they have child whose custody is with mother then she can get maintenance for child as it is a joint responsibility. so even if you go forward with interim maintenance its less likely she will get it for herself. still if you want you can try.
2. About DV you can file it. but you will need to show strong evidences because you are filing it after many days. so you will need to convince the court about delay in filing complaint. You should have done it 2 years back only. But as criminal complaint has no time bar you can still lodge the complaint but you must justify the delay. If you have any previous medical report or police complaint which shows it happened then it will be beneficial.
Dear Client,
Interim maintenance to the wife cannot be denied just because she is more qualified and has the potential to earn. If the violence matter is true you can go further with it for sure and you need not withdraw from the interim maintenance too.
Thank You
- Legally , your sister having her right to claim maintenance after filing the petition under section 125 CrPc and also under the provision of DV Act.
- Further , if she is a working lady , then also she can claim maintenance from her husband , if her amount is not sufficient for her maintenance as per own standard of living.
1. You should not withdraw the application for interim maintenance.
2. if she was subjected to harassment and cruelty from her husband , then a compliant under the provision of DV Act , she must file against her husband.
