• Maintenace & Settlements clarifications

1 Month ago, I & my wife had an understanding for MCD & Rs.3 L settlement in the Honble Court by depositing the sum as FDR on both names & should be withdrawn on 2nd notion & give her in the court. Later, again they demand for Rs.4L & after several pressures I had committed to pay Rs.4l.

Now, again they are demanding for Rs.5L & that too payable in the court, before she witnesses on 2nd notion. In turn  I denied for this & requested it is not possible for 5lac as with all my efforts I had set up for Rs.4L & only it is payable in Hon. Court after her witness in the 2nd notion. 

Finally they are threatening that they will file for maintenance @ Rs.10  to 15,000/- irrespective of my earnings & I have to pay the same for my lifetime without going for divorce.

My profile: parents passed away at my age 10yr . staying with my aunty + uncle  + their son.  I work at an office as a clerk @ Rs.7000/- per month. No salary register, PF, ESI , PAN no. Salary by cash only. My uncle & his son is also daily wage earners & my aunt is a cancer patient. None of us are having no assets/properties/deposits etc. All of us are depended on our daily earnings. Married in 2010, since then no matromonial life lead. No children. 498a filed in 2012. since then both are separate. 498a still postponment since 2012. No 1st hearing at all.

Now, I need to know
1.) on what parameters the court finalizes the maintenance amount. Basing on my profile, do court orders me to pay the said maintenance ignoring my earnings & problems. Or what can be the maintenance I will be ordered.  
2.) Is there any chance to the opponents to submit false information about my earnings.  (as their lawyer said he will show my salary is Rs.25,000/-.  
3.) If maintenance case is filed, what time it takes to finalized the issue.
4.)  What is the best way to pay settlement either FDR after witnessing or after divorce is granted by the court, or any other ways. 

Your valuable suggestions are required Sir. Pls. 

Kishore.
Vijayawada.
Andhra Pradesh
Asked 2 years ago in Family Law from Vijayawada, Andhra Pradesh
Religion: Hindu
1) generally court awards around RS 1/3rs of your monthly income as maintenance . in your case since your monthly income is only Rs 7,000   you can expect an order to pay around Rs 2500 per month as maintenance . 

2) well your opponent can say you a re earning Rs 1 lakh a month . you have to file affidavit mentioning your monthly income . enclose salary certificate or letter from employer regarding your monthly income . you can if you filing income tax returns furnish copy of the said returns 

3) around 6 months for interim maintenance to be awarded by court . 

4) you should pay only at time of second motion settlement amount . if you pay in advance your wife may not turn up at time of second motion and MCD will be dismissed after 18 months of filing . if wife is agreeable after passing of divorce decree settlement can be paid
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
1.) on what parameters the court finalizes the maintenance amount. Basing on my profile, do court orders me to pay the said maintenance ignoring my earnings & problems. Or what can be the maintenance I will be ordered.  

A - While awarding maintenance, Court considers following factors among other:

   •	Status of the husband and wife.
•	Salary/ Income of the husband
•	Salary /Income of the wife
•	Liabilities of husband, if any
•	Dependants
•	Reasonable wants of claimant.
•	Financial Background
•	Movable & Immovable properties of the Husband

2.) Is there any chance to the opponents to submit false information about my earnings.  (as their lawyer said he will show my salary is Rs.25,000/-.  

A - No, he cannot. Come with your documentary evidence that you earn 7000/month


3.) If maintenance case is filed, what time it takes to finalized the issue.

A - a couple of hearings. Depends upon your lawyer and your wife's lawyer. 

4.)  What is the best way to pay settlement either FDR after witnessing or after divorce is granted by the court, or any other ways. 


A - Best way for you would be to not to go for divorce; let her initiate it. If you are not in hurry to remarry, it's always advisable to not initiate divorce proceedings. 


You can avoid paying even paying 4 lakh rupees as you don't seem to have your own property and earning only living wages. Make a strong case that you are unable to give any financial support to her and in situation she is educated or has some training to make livelihood, you can tell the court that she is able to earn and stop fleecing you.
Deepak Tiwari
Advocate, New Delhi
40 Answers
8 Consultations
4.7 on 5.0
One of the most important rights under divorce and matrimonial laws is the right to receive and claim alimony (maintenance). The term 'alimony' has its origin in the Latin word 'Alimonia', meaning sustenance. Generally speaking alimony means an allowance or amount which a court orders the husband to pay to the wife for her sustenance.

Our society consists of five major communities: Hindus, Muslims, Christians, Parsis and Jews. Each community has its own personal laws derived from religious scriptures, customs and traditions. Thus, the grounds on which a Hindu woman can seek divorce and alimony may not be the same for every community.

Similarly, the law on alimony and maintenance also varies from personal law to personal law. For example, under the Hindu Marriage Act, 1955, both the husband and wife are legally entitled to claim permanent alimony and maintenance. However, if the couple marries under the Special Marriage Act, 1954, only the wife is entitled to claim permanent alimony and maintenance.

When a couple gets divorced by mutual consent, the decision on whether any alimony/maintenance is to be paid by either party is a matter of agreement between them. In such cases, alimony/maintenance could be paid by either the husband to the wife or by the wife to the husband subject to the mutual understanding between the couple. The court passes the decree of divorce on terms agreed between the couple. The decree binds the couple and is capable of being enforced by the court.

In contested matters, the court intervenes and decides the issue of alimony/maintenance on the merits of each case. The power of the court to grant alimony is not limited to cases where the decree is obtained by the wife. Courts have powers to grant alimony to the wife even where the husband is granted a decree. It is quite possible there may be no alimony/maintenance awarded at all depending upon the facts and circumstances of the case. Assessment of the amount of permanent alimony is entirely the court's discretion.

The factors that the court takes into consideration for permanent alimony/maintenance for the wife as as follows:

A) The status and position of the husband, his income, his assets and his lifestyle -

The position and status have reference more to the financial than to the social position. Income and financial status are the most important factors while arriving at a justified amount to be awarded as alimony/maintenance.

B) The reasonable wants of the wife -

Want is not confined to what is required for keeping the claimant wife alive and providing for food only. When a minor child is living with the mother, the necessities of the child are also considered. Much emphasis is given on the reliefs prayed for by the wife by taking into consideration the status and station in life of the parties, the duration of the marriage, support and education of children, the ability of the spouse to earn and their future prospects, as also their age, health, liabilities, liabilities of the husband and the reasonable wants of the wife.

C) The wife's own income or earnings -

The court will not only take into account the position of the husband but also the position and situation of the wife. In case the wife is working and drawing a handsome salary, the Court will certainly take that into consideration along with the husband's income and then depending on the facts and circumstances of the case decide whether alimony/maintenance is to be awarded to the wife and if yes, then the amount she shall receive from the husband.

As discussed earlier, under the provisions of the Hindu Marriage Act, 1955, even a Hindu husband can claim alimony from his wife if he earns less than her or does not earn at all, though this is rare.

Usually, the husband is bound to maintain his wife till her lifetime.

However, if the wife remarries, the husband is absolved of his responsibility and can petition the court for orders to stop the alimony. Similarly, if there is a change in circumstances, that is, the husband is unable to maintain the wife due to a financial crisis or any other adverse situation and the wife is financially independent earning a decent salary, then the husband may petition to the court to address the changed circumstances. The the court may, taking into account the facts, evidences and circumstances prevailing at that point of time, modify, vary or rescind the order.

The discretion to award lump-sum alimony or a periodical amount vests with the court.

If the spouse paying alimony/maintenance earns more income after the award for permanent alimony/maintenance has been passed in the case then the wife receiving alimony/maintenance may make a petition addressing the court about the increase in the husband's income but she will have to prove her inability to maintain herself with the alimony already awarded by the court. The court may take into account the facts, evidences and circumstances prevailing at that point of time increase the alimony payable. However, just because his income goes up does not necessarily mean she will get more alimony.

In the future, if the person receiving alimony gets richer (creates/inherits more wealth) than the one paying, can the flow of alimony be reversed? This would again depend upon the facts and circumstances of the case. In case the wife receiving alimony inherits wealth and becomes richer, then the husband would have to make a miscellaneous petition to prove the same to the court. The court will again look into the merits of the case, that is, evidences produced to show that the wife is a richer lady than what she was when alimony was granted to her, inability of the husband to maintain the wife, and if he claims alimony to be awarded to him, that will again be decided by the court after looking into the parameters for awarding alimony/maintenance as discussed above.

1. in ur case court can award maintenance of RS.2300/pm which is about 1/3 of ur salary.

2.yes, they can do it but you must deny it specifically by filing affidavit in court.

3. in about 1 year time.

4. pay on date of 2nd motion in court.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
Hello,
The basis of awarding of maintenance is your income.Therefore if your earning is Rs.7000/- the court may order something to the tune of 2500/- the maximum as maintenance.
No one can show a heightened salary to get a greater maintenance awarded.Ask your employer to issue you a letter showing the salary paid to you or if you are filing your income tax returns you could produce this in evidence before the court.The maintenance proceedings can take 4 to 6 months to conclude.You can always contest the amount on basis of your earnings and your liabilities
If you plan to settle with a lump sum amount pay the whole amount only on the day of the order. only .
Do engage a lawyer locally and contest your case.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
Hi, depend upon your status and financial capacity maintenance will be determined so if they claim any amount, your only source of income is salary so court cant fix maintenance more than 2 to 3 thousands............. and for your second question it is always advisable go for an mutual consent divorce.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. Do not give in to the demands of your wife as it seems that your wife has a knack of dishonouring her promises. Court considers many parameters such as the income, liabilities, dependancy and education qualifications of the husband while fixing the amount of maintenance. Since your salary is a meagre 7000 INR p.m your wife cannot get maintenance of 10,000. She can ask for moon in her claim, but it is for the court to decide the amount of maintenance having regard to the factors mentioned above. No one can give more than what he is earning. The maintenance would, normally, not exceed 1/3rd of the salary.

2. Your opponent has the right to say anything in the court. The inflated income may be mentioned by your wife with a view to extract maintenance on the higher side. You will get the opportunity to rebut her claim by filing an affidavit disclosing your actual income as you are not issued any salary slip by your employer. Her statement cannot be treated as the gospel truth. 

3. It may take up to a year before the final order is out. Indian courts are reeling under a huge backlog of cases.

4. Pay the settled amount at the time of second motion as remitting the amount to your wife prior to it is fraught with the risk of her backing out of the case, which will result in the case being dismissed. 

5. Contest her case fittingly through your lawyer.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
Maintenance is as per your monthly income. normally it may be 1/4 of your income. you should file proof regarding your income. donot pay anything until she appears for 2nd motion because you wil be helpless incase she does appear for 2nd motion. hire a good lawyer to look into your welfare
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
1. Normally Court grants 4/5th to 4/3rd of husbands net earling per month as maintenance amount,

2. They will certainly try to show that you get high salary to get more maintenance amount but you shall have to submit an affidavit affirming your average monthly income after deducting essential expenses. You need to enclose your salary certificate or your employer's certificate in lieu thereof,

3. It takes around 6 months to get interim maintenance amount against seperate application filed for interim maintenance,

4.  Pay her the DD after she testifies during the final motion of the MCD and not before that.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
Generally court will award 1/3 of the income as maintainence if they prove your salary with certificate of proof of earning only
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
Dear Kishor
My opinion on your queries are as under:
1.) on what parameters the court finalizes the maintenance amount. Basing on my profile, do court orders me to pay the said maintenance ignoring my earnings & problems. Or what can be the maintenance I will be ordered.

Opinion: The court will consider your income, saving and properties and after completion of pleadings the court will decide the same if your income is 7000/- PM then and you prove it before the court then 1/3 of your salary may be awarded as maintenance if she is unable to maintain herself.  
2.) Is there any chance to the opponents to submit false information about my earnings.  (as their lawyer said he will show my salary is Rs.25,000/-.  
Opinion; File a detail affidavit as per Puneet kaur Judgement and pray to court to direct her too for file the same.the burden of proof lie upon her to prove your salary.

3.) If maintenance case is filed, what time it takes to finalized the issue.
Opinion: it may be six month to 2 year for decide the interim application and 4-5 years for final judgement before Trial court.

4.)  What is the best way to pay settlement either FDR after witnessing or after divorce is granted by the court, or any other ways.
Opinion: after second motion or at the time of second motion through FDR or DD
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
129 Consultations
4.9 on 5.0

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