• How to fight against 498A and CrPC 125

After getting married under the Hindu special marriage act on 14/7/2013 we had been living separately since 1/8/2014 for the purpose of her psychiatric treatment but an FIR u/s 498A against me & my parents was filed on 17/12/2014 and a maintenance of Rs. 30000 per month under crpc 125 on 16/1/2015 on the ground of mental torture, beating, abandoning etc. AB was granted by the district court on the ground of her mental illness. Hearing of both cases will start at the end of this year. I am employed with a govt undertaking organization earning a gross of Rs 84000 per month. My lawyer did not file any case against her so far. Can my now filing any case increase the maintenance order? Also suggest me a suitable time & ground for filing divorce & the consequences of it.
Asked 8 months ago in Criminal Law from Kolkata, West Bengal
Religion: Hindu
The only case that you can file against her is for dissolution of marriage which will not impair her right to claim maintenance. You are free to file the case at anytime. Everytime is an appropriate time. 
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
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1) since bail has been granted to you contest case on merits 

2) 498A case take 5 years to be  disposed of 

3) you have not mentioned whether wife is working or not 

4) if wife working not entitled to any maintenance 

5) court generally awards around one third in income as maintenance if wife not working
Ajay Sethi
Advocate, Mumbai
23125 Answers
1215 Consultations
5.0 on 5.0
File for divorce on grounds of mental cruelty now 
Ajay Sethi
Advocate, Mumbai
23125 Answers
1215 Consultations
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1. Has any maintenance order has been issued against you against her prayer for Rs.30,000/-? If yes, then you can appeal against the said order before the appellate court,

2. If the complaint u/s498A of IPC is proved to be false, you can file a criminal case u/s211 of IPC,

3. You can now file a divorce suit against her on the ground of cruelty and desertion and all the cases can run concurrently.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
you should contest against 498 A IPC & 125 crpc on the ground of baseless allegation. 

Abandonment cannot be proved because she has been living separately for treatment. it is valid reason for living separately. If she has no medical evidence to prove physical injury she cannot prove beating. If there is communication between you when she went to her parents home you can prove that no mental torture existed.  
If you can successfully prove above mentioned facts she cannot claim maintenance under section 125 crpc.
Shivendra Pratap Singh
Advocate, Lucknow
2728 Answers
41 Consultations
4.9 on 5.0
Hi, you can file  a divorce petition on the ground of cruelty  as far as 498/a and petition under 125 of the Criminal Procedure Code you have to contest the case.

2. As far as 498/a case it is difficult to prove the case and all most all cases are end with acquittal.

3. For maintenance if she is well qualified and  she is earning  well  then she can't claim maintenance form her husband.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
You have stated that you have been living separately since Aug-2014 till this date.  This is a strong reason for divorce coupled with cruelties namely false cases of dowry harassment and also her mental illness due to which sha has been troubling you with untold tortures. 
For the present you do not file any other case against her other than this dicorce case
Let the trial began after which you can decide about further course of legal action on the basis of the status and develpments of the pending cases
T Kalaiselvan
Advocate, Vellore
13942 Answers
127 Consultations
5.0 on 5.0
1) wife can claim maintenance if you file for divorce . 

2) however court while passing orders will consider maintenance passed under section 125 Cr Pc 
Ajay Sethi
Advocate, Mumbai
23125 Answers
1215 Consultations
5.0 on 5.0
1.She will be entitled to only one maintenance order,

2. If she claims maintenance against your Divorce suit, inform the Court that she has already applied for and is availing maintenance u/s125 of Cr.P.C.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Filing a divorce case on the grounds of cruelty cannot stop her legally from filing a maintenance case under section 125 cr.p.c.,  it is her own choice to do whatever she wants to, you cannot put a restriction to it. However you may challenge its maintainability on the grounds which you find to be reasonable and rely upon  to repudiate her claim. 
T Kalaiselvan
Advocate, Vellore
13942 Answers
127 Consultations
5.0 on 5.0
She can claim interim maintenance under it as she is not earning.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0

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