Maintenance under section 24
i am a 40 yr old male, i was married 15 years ago. one year back i filed for divorce on the ground on mental cruelty. my file filed DV act, 125, 24, 26 and other cases. she got immediate maintenance of 35000 pm under DV act. later on she got increased maintenance 50,000 pm in 24 case. i have two kids, those are staying with mother. i run my business and earn around 1, 25, 000 pm. My mother recently expired and now me and my father are living together.
My question is...
1) if i challenge order in high court what are the chances of getting success to cancel order of section 24 as maintenance in DV case was already granted
2) is it possible that instead of decreasing high court increase maintenance as my both kids living with my wife and i have only my father to look after,
3) how exactly maintenance decided, one of lawyer told me my income will be divided in two 5 parts and 3 parts she will keep and 2 parts i will. is it true. can high court issue such kind of order.
Asked in Family Law from Chandigarh, Chandigarh
1) you cannot predict results of litigation . the fact is wife has been awarded reasonable maintenance under Dv act of Rs 35,000 per month , the court should have considered said fact while awarding maintenance under section 24 of HMA
2) HC may not increase your maintenance
3) generally one third of income is awarded as maintenance. you have not mentioned whether your wife is working or not
4)t is held in the ruling of MAMTA JAISWAL VS. RAJESH
JAISWAL II(2000) DMC. 170 MADHYA PRADESH HIGH COURT as
“Whether a spouse who has capacity of earning but
chooses to remain idle, should be permitted to saddle other
spouse with his or her expenditure ? Whether such spouse
should be permitted to get pendente lite alimony at higher rate
from other spouse in such condition ? According to me, Section
24 has been enacted for the purpose of providing monetary
assistance to such spouse who is incapable of supporting
himself or herself in spite of sincere efforts. Spouse is well
qualified to get service immediately with less efforts, is not
expected to remain idle to squeeze out, to milk out the other
spouse by relieving him of his or her own purse by a cut in the
nature of pendente lite alimony. The law does not expect the
increasing number of such idle persons who by remaining in the
arena of legal battles, try to squeeze out the adversory by
implementing the provisions of law suitable to their purpose. It
impliedly means that she was possessing sufficient experience.
How such a lady can remain without service ? It really puts a
bug question which is to be answered by Mamta Jaiswal with
sufficient cogent and believable evidence by proving that inspite
of sufficient efforts made by her, she was not able to get service
6 A-3017/2014(OR.ON EXH.12)
and, therefore, she is unable to support herself. A lady who is
fighting matrimonial petition filed for divorce, cannot be
permitted to sit idle and put her burden on the husband for
demanding pendente lite alimony from him during pendency of
such matrimonial petition. Section 24 is not meant for creating
an army of such idle persons who would be sitting idle waiting
for a 'dole' to be awarded by her husband who has got a
grievance against her and who has gone to the Court for
seeking a relief against her.”
1. When the application u/s 24 of DV Act was being heard, did your Advocate not contest it stating that maintenance has already been ordered? Was it adequately argued and is it that the said amount was extended to Rs.50,000/- after hearing both the parties? You can challenge the said order before te high court on the ground that the said amount is to te higher side since after spending for the essentials like old father's treatment, you hardly are left with around Rs.90,000/- from which it is difficult to pay Rs.50,000/-. You have fare chance of reduction of the amount if you can convince the Court about the grounds shown by you,
2. In the instant matter, your wife will not be the appellant for increasing the maintenance but it is you who will appeal for its reduction. So, the Court will either grant your prayer or reject it,
3. Maintenance is decided by the Court based on the ground reality. The amount is generally in between 1/5th to 1/3rd of net monthly income of the husband. Since your two sons are also with your wife, you can expect 1/3rd of your net monthly income to be fixed as the maintenance to be sent by you to your wife every month.
1. Order of maintenance depends on income of husband. If she can prove your income to be more than one lakh then certainly she would get maintenance around 40k.
2. You can always challenge the order of maintenance in high court.
3. quantum of maintenance generally varies from 1/3 to 1/5th income of husband.
1. The chances depend on the facts of the case. The HC has the power to increase, reduce the amount and also quash it altogether. If your wife has walked away with this amount without discharging the burden of liability then you may stand a fair chance in the HC. That she had previously got maintenance in DV proceedings disentitles her from claiming maintenance in sec 24 proceedings unless she can prove that DV maintenance is inadequate for her.
2. Your wife can also move the HC to increase the quantum.
3. The court has to take into account the liabilities of the husband before quantifying the amount. Ordinarily it is 1/3rd of his net income. HC can pass any order.
1) You can challenge the orders passed in the application filed by her under section 24 of HMA before the high court. This can be a double jeopardy. If an order has already been passed in DV act fr interim maintenance, this order again under HMA shall be a an unjustified order.
2) It depends on how she defends your revision petition.
3) There is no such formula to decide about the quantum of maintenance, probably your advocate is misguiding you or working out his own formula.
The maintenance award is generally decided on the basis of arguments put forth before court with documentary evidences in support and against
you should file a case u/s 482 crpc for quashing of case. there is set parameter for determination of maintenance. It cannot be excessive. It is decided on the net income. net income = gross income - [ liabilities + self expenses + expenses of dependents ] court also take in notice your living standard and actual need of your wife & children. Living standard is determined by the living of other members of your family not yours.
Thanks all for their kind suggestions.. I am worried if i appeal in high court for reduction of maintenance is it possible that some way high court can increase instead of decreasing. As said by my lawyer.
Asked 1 year ago
1) it is doubtful that HC will increase maintenance
2) you have to take calculated gamble if you are aggrieved by order of family court in awarding wife maintenance
Yes this can be done. The HCs have done this in some cases.
Your advocate has been misguiding you from the beginning by giving false information and discouraging you. Now it will be high time that you change your lawyer or else you will be losing all your cases.
If you have applied for revision before high court with the grounds of grievances, be confident about the relief, dont have a negative approach even before filing the revision.