• RCR, maintenance and divorce cases

I got married in Mar-2012 and domestic unrest started from day 2 with my wife picking quarrels with me and my mother on trivial matters and it kept on increasing. I work in shipping and while going for sailing in Aug-2012, I left my wife at her father's place on his suggestion of counselling his daughter. But she has not returned since then accusing of adultery and making demands of breaking ties with friends and family. After a lot of discussions with elders of both family, she called for mutual divorce in Jan-2014 and even sent notice to which I replied in consent. However, she retracted the same and sent notices with allegations of Domestic Violence with exchange of notices happening between lawyers as I was sailing. I had been sending her expenses by e-transfer from Aug'12-Dec'13 while she claims I abandoned her fm Aug'12 without expenses. Upon my return in Aug-2014, I filed for RCR in my city (Hyderabad) and she filed for Maintenance on DV in Mumbai in Oct-2014 and subsequently for Divorce on basis of Adultery in Dec-2014 claiming maintenance of 2lac/month since Aug'12 and alimony of 5cr. She has not even yet filed reply to my RCR on trivial excuses and we are requesting court for ex-parte for the same. In Mumbai, the cases pending argument for maintenance. Pls advice if getting ex-parte in RCR case would help me with the cases against me in Mumbai.
Asked 1 year ago in Family Law from Hyderabad, Telangana
Religion: Hindu
1) you have not mentioned whether your wife is working or not 

2) what are her qualifications ? 

3) what is your income ?

4)the court will award her maintenance of she is not working 

Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
1) RCR decree will help you in obtaining divorce from your wife if she refuses to stay with you even after the decree 

2) it may not help you in your maintenance case as your wife will take plea that she cannot stay with you for your acts of cruelty and your affair with another lady 
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
1) your wife is highly qualified and has worked in the past 

2) in view of various judgements court may not award her maintenance as she can easily work and meet her expenses 

3) Further if wife has deserted you without reasonable cause court may not award her maintenance 
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
1) your wife has to prove  her allegations made in DV case during trial 

2) your wife could have file complaint before magistrate under DV act and sought maintenance and other reliefs 

3) DV asked take 5 years to be disposed of in Mumbai 
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
Hi, filling of restitution of conjugal rights will not help you even though you may get the judgement in your favour but you can not  execute it because you can't compel your wife to live with you. it is one of the ground for divorce.

2. As per latest Supreme court judgement it says that if the well qualified wife simple sitting in idle then she will not entitled for maintenance.Most probable court  will not allow her application for maintenance.

3.She may lodge a police complaint before the Women police for offence under section 498/a IPC it is better you can check in the police station or court whether FIR has been lodge by the police if they lodge a FIR then you have to apply for anticipatory bail before the court.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
You filed petition for RCR and she for Divorce. There is contradiction between both pleading. She claims desertion from Aug 2014, pleaded adultery, demanding huge amount etc.... her behavior is totally absurd. 

Your RCR petition is filed for countering her desertion ground. Instead of this you should file petition for divorce on the ground of " matrimonial cruelty and filing of false cases against you "  you have enough evidence to prove her guilt. If you successfully proved it in court, divorce shall be granted and no maintenance shall be allowed. 

There is little chance that RCR will succeed. 
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
4.9 on 5.0
The settled position in the cases where a wife who is well educated and capable of enough to earn for her living is not allowed by court if she simply sit idle and claim maintenance from her husband.

The maintenance amount is calculated by taking into account the total monthly take home income (ie. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount. Maintenance amount can also depend on who well the lawsuit has been fought by the advocates of both parties. The spouse with lesser income or no income can get a maintenance amount, which will make his/her complete earnings (plus maintenance) to be equal to 20% to 30% of the above total monthly income.


Your RCR decree is not workable one but can use it for Divorce .You can not  execute it because No one can compel your wife to live with you. DV cases are civil nature but treated in Magistrate court .You have to contest the DV on merit.
Ajay N S
Advocate, Ernakulam
1910 Answers
19 Consultations
5.0 on 5.0
1. If there is great disparity in the income between spouses then wife is entitled to income.
2. In your case considering your income I don't think you can avoid maintenance of your wife.
3. The parameters of filing dv case and 498a are different.
4. At the time of filing case no concrete evidence is required. In dv case the degree of proofs in support of allegations is much lesser.
Devajyoti Barman
Advocate, Kolkata
5179 Answers
54 Consultations
4.9 on 5.0
1. If you get ex parte RCR judgment it will be a judicial declaration of your intention to resume cohabitation with your wife. The RCR judgment can help you to defeat the maintenance claim of your wife.

2. Considering the sound educational qualifications of your wife she does not qualify to get financial support from her husband, so even without a favourable RCR judgment you can repel her claim to maintenance.

3. If the lower court holds you liable to support her with maintenance you can challenge it in the HC.
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0


1. It is for her to prove that you did not appear on notices before the women cell.

2. DV case is a substantive and can be filed without a FIR having been filed by the wife for the criminal acts. 
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0
Hello,
1)An ex parte order in the RCR will be beneficial in your contesting the claims of the Petitioner in the case seeking dissolution and maintenance to some extent.Even in the event of you obtaining a one sided RCR order she can join you any time within one year and comply by the order.

2) Despite the fact that your wife is highly qualified and is capable of maintaining herself and despite the citations the court can exercise its discretion to award maintenance.During the pendancy of the current cases you may have to pay maintenance being ordered; however you can appeal against such order and get the amount reduced.
3) Your having not appeared before the women's cell has no great bearing on your cases as this is a conciliatory body  and its decisions are not binding on you and even if you received summons you could choose not to attend the sessions.
4) The best way forward however is mediation through a judge in the court where the divorce proceedings are in progress.As you too desire to obtain divorce.In the mediation talk which will e held in the presence of a separate judge both the parties are given opportunities to put forth their offers and possibly you can strike out an amicable and agreeable way to settle the entire issue. Alternately the litigation will consume a lot of your time, money and peace of mind.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1. No. If you get ex-parte decree directing her to join you and if she still refuses to join you, you will get advantage in the divorce case, if filed by you but not in the DV case,

2.  Contest the DV case fittingly claiming that you want her to be with you and she has left you of her own for which she deserves no maintenance.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
1. You are on the right track,

2. Contest the maintenance claim on he ground that she is highly qualified to earn her own living and that she has left you of her own,

3. Favourable order in your RCR case will help you in the maintenance case but not in the divorce case.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
1. your stand should be very clear that you had not received the said notice,

2. Following procedure does not validate claim or complaint,evidence does,

3. She should submit irrefutable evidence in support of her claim/complaint.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
Pls advice if getting ex-parte in RCR case would help me with the cases against me in Mumbai.

In the given situation, in my opinion getting an exparte decree in RCR may help you fight her false cases including the divorce case filed on the grounds of adultery. By the way, did she include the name of the adulterer in the divorce case as a second respondent?  This RCR case may help you to defend yourself and challenge all cases against you in Mumbai. 


 Am are claiming she is not entitled for maintenance under CrPC Sec.125 1a,4&5 as she is qualified and can maintain herself and that she has refused to live with me without reasonable cause.

A family court has observed that a well-qualified woman cannot claim maintenance from her husband. "The wife who is well-qualified and claiming maintenance by sitting idle is not entitled to get maintenance. The wife is not entitled to advantage of her own wrong, she cannot harass the husband on the count of maintenance though she is capable to earn," the court said while dismissing a dietician's plea to seek a monthly maintenance of Rs 2 lakh from her divorced husband.



On the basis on above, please advice if my arguments stand for rejection of maintenance? Also, will getting an ex-parte in RCR case filed by me help me in the maintenance and divorce cases filed against me?

Besides the cases you have referred which are in favor of your arguments, the below mentioned settled  case too will be more relevant to your arguments:
MUMBAI HIGH COURT  : Dated Apr 2008.
Maintenance not granted as it is proved no reason to leave husbands.
A gist of it is reproduced below:
The Apex Court, in Deb Narayan Halder v. Smt. Anushree Halder 2003 (3) B
Cr C 286, held that the appellate Court or revisional Court while setting aside findings recorded by Court below must notice those findings and where the findings are of facts, evidence on record must be discussed, which  should justify reversal of findings recorded by the Court below. The Apex Court held that when the maintenance  application of the wife was rejected by the learned Magistrate, holding that she had on her own left the  matrimonial home, the High Court was not justified in reversing such findings recorded by the trial Court and to  grant maintenance to the wife.
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
1. In her petition for maintenance based on DV, she had claimed women tht police and women's cell had asked me to appear and I did not do the same. However, I didnt receive any such notifications fm concerned authorities except for mere mention of the same in her notices. Neither has she produced notifications to that effect in court. In this context, where do I stand?

In DV case neither the police nor the women cell can participate.  It is just a false case allegation.  If she has mentioned it that you ask her to prove it and the strict proof lies on her.






2. What is the procedure she is required to have followed (FIR filing etc) that validate her claim or before filing for maintenance under DV?
 
DV has nothing to do with the police or women cell. It is a private complaint given to the social protection officer who in turn will summon both the parties and shall mediate between them, if it is not possible the officer will send the case to court to be decided by the court (magistrate). 
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0

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