• Divorce case - section 125 or 498 and 340

Dear Advocate(s),

My name is Alquaz Alam, I got married on 
5/1/2020 and after 7 days i.e. 12/1/2020, my wife left me.

After leaving she puts many false allegations on me which is ongoing in the court and many of them are already proved wrong.

At the moment, 2 cases are ongoing that are 125 or 498 and 340.

Now, my next hearing is on 22nd October where the arguments is going to start.

Girl's father had transferred 2.5 lakhs to my account before marriage which I denied but still he wanted to give me to buy something for me as a gift.
I have never demanded any money in writing or verbally. 

I'm ready to return that but girl is asking 8-10 lakhs for the settlement. 

At this moment, I am already marriaged 2nd time as per muslim law since my 1st wife didn't agree to stay with me after trying to convince her since long rather demanding much money initially due to my good financial background. 
It was a cheat marriage which was done for money.

There are few queries from my side:

1) She is demanding litigation amount as 15k although she is getting stipend of amount 55-64k every month.
I have a proof of her bank statement 

2) I don't have any income, I just get 10k at the moment to manage my stuffs with the support of my family
Do I still need to pay maintenance amount to her?

3) Is there anyways where I can put back any case on her so that she can agree to close the case sooner?

I would like to know your advice on this case and how this case can be closed sooner.
Asked 7 days ago in Family Law
Religion: Muslim

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9 Answers

If your wife has income of Rs 55k a month she would not be entitled to any maintenance 

 

2) if wife has made false and defamatory statements against you  file case of defamation against her under section 500 of IPC 

Ajay Sethi
Advocate, Mumbai
88369 Answers
6226 Consultations

5.0 on 5.0

  1. Complainant is not entitled to any litigation expenses in criminal case. As both the  spouses are Muslims under Sharia husband is liable to pay maintenance  only during She cannot demand more than that.
  2. A Muslim is not liable to pay maintenance even if he is earning.
  3. Only after her criminal complaints is dimissed by can file complaint against her for filing false against you, claim compensation and file defamation suit against her.  

Ravi Shinde
Advocate, Hyderabad
2816 Answers
42 Consultations

5.0 on 5.0

Mr. Alam, these cases are very common in various Courts of India and Supreme Court of India. I can understand your concern in this regard. At times, despite our best efforts, life takes a turn for the worst. We may have wanted different things from life, but life’s got its own plan as well. A bad marriage is something which nobody hopes for, but at times, that’s exactly what we are given and forced to face head on. Marriages are hard. Divorces…even harder. Nobody enters marriage thinking about a divorce in the end. If some are unable to cope with the harsh realities of marriage, the only viable option in front of them is to approach the Court and seek legal separation.

Section 125 (4) of Code of Criminal Procedure states that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

Since she is getting stipend of amount 55-64k every month therefore she should not be entitled for maintenance. There are various cases in this regard which can relied on.  

 

Husband can reduce maintenance of wife on various ways:

  • In case of wife left the husband on her own.
  • Produce evidence that wife is well of earning.
  • Husband needs to show his liabilities.
  • Negotiation and Mediation

Grounds on no maintenance to wife are:

  • Wife living in Adultery
  • Wife Living separately without sufficient cause.
  • Professionally qualified wife-Capable of earning
  • Separated by mutual consent
  • Earning wife

Please understand that the objective of granting interim / permanent maintenance is to ensure that the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.

The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

 

Supreme Court in various cases has stated that for determining the quantum of maintenance payable to an applicant, the factors which would weigh with the Court inter alia are

  • the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; etc.
  • the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living.
  • On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years as she would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job.
  • In case where the wife is working, it cannot operate as a bar from being awarded maintenance by the husband. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.
  • The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular/coaching classes, and not an overly extravagant amount which may be claimed.
  • Serious disability or ill health of a spouse, child / children from the marriage / dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance

The aforesaid factors are however not exhaustive, and the concerned Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case. Detailed discussion is required in such cases. 

 

You may contact my secretary to connect with me for clarification.

 

Gopal Verma,

Advocate on Record & Amicus Curiae,

Supreme Court of India

Shri Gopal Verma
Advocate, New Delhi
316 Answers
5 Consultations

4.0 on 5.0

Maintenance depends upon your income ,wife income ,standard of living 

 

court s generally award 25 per cent of net income as maintenance 

 

in your case wife income is more than yours hence not entitled to any maintenance 

Ajay Sethi
Advocate, Mumbai
88369 Answers
6226 Consultations

5.0 on 5.0

1. You can refuse to pay her any amount and challenge her claim on the basis of the documentary evidences in your possession. 

2. Since she is your legally wedded wife you are duty bound to pay her the maintenance amount, however you can express before the court about the actual income you derive and can get the quantum reduced. 

3. No case can be filed against her, instead you challenge all her cases properly and get them dismissed.

 

T Kalaiselvan
Advocate, Vellore
78530 Answers
1554 Consultations

5.0 on 5.0

The cases filed by her are not under the provisions of Muslim personal law.

All are pertaining to general laws only, hence you may have to challenge them based on the merits and documents supporting your case.

T Kalaiselvan
Advocate, Vellore
78530 Answers
1554 Consultations

5.0 on 5.0

Dear Client,

First of all, the first wife’s consent is not a prerequisite for a man to take another wife.

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, the wife has to be paid maintenance in the iddat period and mehr has to be returned.

 

Thank You.

 

Anik Miu
Advocate, Bangalore
5001 Answers
53 Consultations

4.9 on 5.0

1. As per law, even an earning wife can claim maintenance from her husband , if her income is not sufficient for her maintenance as per your standard of living. 

2. You can mention your income before the court in your reply 

3. If she has filed a wrong income affidavit before the court after mentioning that she having no income source then you can move an application before the same court under section 340 CrPc. 

- As per Supreme Court , wife’s income has to be taken into account while determining the amount of maintenance payable to her. It is not an absolute right of a neglected wife to get maintenance nor it is an absolute liability of husband to support her in all the circumstances, 

- Further, No Interim/Maintenance for Capable, Working Women , as per judgment passed by Madhya Pradesh High Court .

- Further, as per Supreme Court , wife is not entitled to get maintenance, if she lies.

 

You can contact me in Delhi for getting more suggestion. 

Mohammed Shahzad
Advocate, Delhi
10047 Answers
122 Consultations

5.0 on 5.0

You can oppose the same. 195 and 340 will only be Applicable if any false evidence or facts are on record

Prashant Nayak
Advocate, Mumbai
27579 Answers
88 Consultations

4.4 on 5.0

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