The application for the interim maintenance shall,as far as possible,be disposed of within sixty days from the date of service of notice on the husband.
I have been married in 2005,love marriage. After 9 years of our marriage, due to his ego & money importance he filed divorce. We have a child of 4years. I did masters but I did not work till now as my husband did not want. I have one property on my name which my father gave at the time of marrige. but my husband brought 26laks loan on that. As I am not working he is main borrowe & I am co borrower. He paid EMI till Divorce is filed. Afte that he did not pay. He is not paying us any monthly expenses. With my father\\\'s help I am Surving paying loans,daughter school,medical expenses, rent etc. I am contesting in court that I don\\\'t want divorce. I filed for Interim in APril 2014. He is earningmore than 1 lakh per month & also he have privtate limited company on his name.He is a director of the company.But he stated that he is not working & he don\\\'t have any company. But I submiited his Form 26as,bank statements,company documents.And in between case proceedings he went to USA for 5 Months. Even he gave POA to his friend as he his in USA and he mentioned in the POA. What are the chances of getting INterim and how long it will take
The application for the interim maintenance shall,as far as possible,be disposed of within sixty days from the date of service of notice on the husband.
the chances of getting interim maintenance are 100% as ur not working.
it takes about 2 dates for court to pass interim orders.
1) it takes around 6 months for application for interim maintenance to be decided .
2) you would be entitled to maintenance as you are not working . in addition you can seek maintenance for the child .
3)contact a detective agency and gather evidence of his income . it will help you in your long legal battle ahead .
4)if your husband is earning Rs 1 lakh a month you can get Rs 30,000 per month maintenance .
5) also file Dv case against your husband and seek alternative accommodation , compensation for mental torture you ahve undergone and other reliefs
You must request the court to pass orders for interim maintenance as you have no source of income. Generally it takes two three dates but if he has not been served or has not filed his reply even then ex-parte orders for interim maintenance can be passed and you will surely get it.
Your chances of getting interim maintenance is high as all circumstances are in your favour and you are able to adduce evidence regarding the income of your husband and as you are unemployed with a child to care for and pay for rented accommodation.
Apart from this the court is of the opinion that the disputes relating to divorce matters have to be disposed off as soon as possible.
Taking note of the undue delay in granting maintenance and alimony in divorce cases under the Hindu Marriage Act, the Delhi High Court has directed the lower courts to ensure that the trial in the matrimonial dispute cases be completed within six months as prescribed by the Act.
“No standard uniform practice and procedure is followed by the courts,” noted the court of Justice JR Midha, adding that in most cases, the provisions for interim maintenance and permanent alimony under Section 24 and 25 of the Hindu Marriage Act were not being utilised.
“Section 21-B of the Hindu Marriage Act provides for an expeditious trial — to be concluded within a period of six months. However, the disposal of petitions before the trial courts take many years,” the court said.
“This is matter of serious concern. It was certainly not the intention of the law that parties to a dissolved marriage suffer further misery of starvation in the absence of grant of alimony,” the court said.
I don't know even judge is not forcing them I applied for interium in April 2014 now next hearing we have in November 2014. till now nothing happened. His income in the form of salary is more than 1 lakh and now he is going to get apprisal and he have a own IT private limited company. How much Can I get interim maintanance as I have a daughter of 4 years old and also I am kidney patient. He gave the answer for the say is I am not working & don't have any company. I submmitted his company a/c statements, salary a/c statement's and form26as.he have a honda city ,1 lakh bike.So I am fighting for equal status of interim and also for 1 lakh interim. Now that my leg is fractured but still with the help of my father I am going to attend the court in November.And again I got extra expenses.It is becoming for my father &me to manage expenses of school,hospital,paying loans So in November I am thinking To talk to judge please sanction us as soon as possible. Can I talk to Judge directly when I go Inside.
1) your lawyer should have pressed for short dates .
2) he can make an application before family court for fixing earlier date of your application for interim maintenance on grounds of your illness and financial constraints
3) you cant address judge directly when you have engaged a lawyer .
1. AD interim will take anything more than 6 months because of the load of the Court,
2. Ask your lawyer to follow up the matter aggresively,
3. You will get maintenance for you and your kid as per your status, his net income, period of marriage etc.,
4. You can also file DV case for alternate accomodation.
1. You have stated that he had availed loan of Rs.26 Lakhs by mortgaging your property & that he has stopped paying EMI towards his said loan,
2. What for did he take that loan? Was it for buying a property? If he does not repay his loan, his loan account will become NPA & your mortgaged property will be taken possession of by the Bank and will be sold out to recover his loan,
3. In the instant matter you should file a suit against him praying for a direction upon the Bank to mortgage his purchsed propertry by releasing your mortgaged property.
1. you can get Rs.35 k p.m. as maintenance amount from ur husband as per orders of court.
2. you cannot talk directly with judge.
1. Interim maintenance does not take longer than 6 months to be decided. At least I have not seen a case where it took longer than 6 months.
2. You are bound to get maintenance as you are not working. Every husband is legally obligated to provide finances to his wife when the latter is not working. So he cannot escape fulfilling this obligation. That he is not working will not be accepted by the court. Since he is earning more than Rs.1 lakh per month you are likely to get 33,000 per month. You have already submitted his form 26, bank statements, etc, so you have done all that you could have done as a matter of legal prudence to show his current financial status.
3. If he has stopped paying the EMIs then the property mortgaged by him will be taken in possession by the bank and then sold by it at a throwaway price whereupon the sale proceeds will be appropriated towards the recovery of loan. Immediately move to court and file a case for directing the bank to mortgage the property of your husband and release your mortgaged property as he took the loan. Remember that bank is interested in only recovering the money it had advanced to your husband. To this end it will not hesitate for a moment in selling your property, so move now to save it.
4. You have the right to oppose the divorce petition filed by him.
1. It has been around 6 months since you filed interim. In all fairness you should have got it by now. Has he filed his reply? Ask your lawyer to take shorter dates.
2. You have every right to seek maintenance for yourself and your child. The amount of maintenance to be fixed by the court has to be such as would subserve your basic needs and also medical needs.
3. Do not address the judge personally as it might damage your case.
Your husband is in USA so interim maintenance shall be granted ex-parte only. If he was in India on April 2014 and any process had been issued against him so ex-parte order may be passed by the court. If evidence on face of the record shows his income then Magistrate can pass interim maintenance. If husband has no income then it does not means that he has no liability to maintain her wife and children. Prima facie maintenance of wife and children is paramount duty of the husband. You put all the documents towards his income before the court and enable the court to take proper decision on this issue.
If he refuse to repayment of loan amount then you can file criminal case under section 406 ipc or after making repayment can file civil suit for recovery of payment but civil suit will be more expensive than criminal case. That land was gifted to you from your father so it comes under istridhan and that property can't be mortgaged by your husband. You can take plea of coercion, inducement of deceit as a defense for mortgaging that property.
in family court you can conversate with honble judge directly also. you can claim maintenane for your child too.according to earnings of your husband on documentary evidence you can get maintenance approx rs 35000 pm as you are not earning. interim maintenance petition may be decided within 6 months.
He went to USA so he gave POA to his friend to submit answer for say. He submitted the Say. But he is declining that he is not working. For that I submitted all the documemts. Can we put Prudery case against him . And alo he wrote in the say he is not working but still ready to give maintanance as per court instructions. And also he don't have dependents expect me & daughter. His parents have a property of 2 crores.So I am asking for equal status.As per supremer court order "Civil Appeal No. 5660 of 2010 (Arising out of SLP (C) No. 6736 of 2007)" in this case supreme court ordered for equal staus. Here my husband is having salary plus his own IT private limited comapany . I had submitted his comapany documents also.
you are advised to pursue legal case quoting honble apex court citation for equal status maintenance.
You are eligible to get a good a maintenance and an interim maintenance with the above said financial status of your husband.
If your advocate is not doing his/her job well , appoint some one who takes care of your matter and speed up the matter.
In the next date or even before the next date ask him to get the matter on board and press for the interim maintenance application .
You should file Domestic violence application in the magistrate court and it will be faster . For this engage another advocate if you feel the present advocate is delaying the case
you can get Rs.35 k p.m. as maintenance amount from ur husband as ur case is very strong.
Supreme Court of India
Neeta Rakesh Jain vs Rakesh Jeetmal Jain on 20 July, 2010
Bench: Aftab Alam, R.M. Lodha
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5660 OF 2010
(Arising out of SLP (C) No. 6736 of 2007)
Neeta Rakesh Jain .... Appellant
Rakesh Jeetmal Jain ....Respondent
2. The order dated September 21, 2006 passed by the High Court of Judicature at Bombay (Appellate Side), which fixes the interim maintenance at the rate of Rs. 12000/- per month pending appeal, is under challenge at the instance of the wife - appellant in this appeal by special leave.
3. The parties were married on May 8, 1995. The respondent-husband petitioned for divorce under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 (for short, `the Act') on the ground of cruelty and desertion against the wife. The Principal Judge, Family Court No. 5, Pune, passed an ex-parte decree on April 7, 2005 dissolving the marriage between the parties on the ground of cruelty. The wife has preferred an appeal before the Bombay High Court challenging the ex-parte decree. The appeal has been admitted. On July 18, 2005 an ad-interim order was granted staying the operation of the ex-parte decree. The husband was also restrained from re-marrying until further orders. The ad-interim stay order is operative although the husband has informed the High Court that on July 22, 2005 he had re-married. The factum of re-marriage has been disputed by the wife before the High Court.
4. The wife made an application (Civil Application No. 107 of 2006) for direction to the husband to pay to her interim maintenance of Rs. 50,000/- per month. In that application it was stated that husband's income is Rs. 2,00,000/- per month approximately. It was stated that the husband is a highly qualified person; he is Chartered Accountant (CA) and has also passed Cost and Works Accounts of India (ICWA). He passed Chartered Institute of Management Accountants (CIMA), U.K., examination in May, 1999 and also completed course of Computer Information Technology. According to wife, at the time of marriage the husband was working with M/s. Kalpataru Constructions at Mumbai drawing a salary of Rs. 40,000/- per month; in 1996 he changed his job and was appointed as Finance Manager with M/s. Kimberly Clark, Pune (a multi-national company) at double the salary and in May, 1998 he joined a highly reputed software company, namely, M/s. Tata Technology on substantially increased salary. In 1999, the husband was sent to Sri Lanka by the company as a Senior SAP Consultant where he was entitled to a chauffeur driven Toyota Van and a large bungalow to live. He returned to Pune in August 1999. At that time his monthly income was about Rs. 1,50,000/-. The wife averred that somewhere in the month of January, 2000 the husband started his own company in the name and style of M/s. Paysquare Consultancy Limited at Pune and engaged several computer and IT engineers, chartered accountants and MBAs as employees. As regards her own income, the wife stated that she did not have any independent source of income and was pursuing her studies of Ph.D. at the mercy of her elder sister who has been supporting her since 2001.
5. The husband responded to the application by filing his affidavit. Substantial part of the reply affidavit deals with the proceedings before the Family Court. As regards his income, he stated that he joined the service with M/s. Kalpataru Constructions as an entry level job with a total income of Rs. 7,000/- per month. According to him, his salary in M/s. Kimberly Clark was Rs. 15,000/- per month while his salary in M/s. Tata Technology was Rs. 20,000/- per month. He stated that having worked for six years, he decided to start on his own and put all his savings in the company - M/s. Paysquare Consultancy Limited. He also stated that he was not the sole owner or proprietor of the company and that from August 2005 he has started drawing the salary of Rs. 30,000/- per month from the company.
6. The Division Bench in the impugned judgment observed that since an application for interim maintenance was being considered, it was not inclined to deal with the submissions advanced by the counsel for the parties on the earning capacity of the husband in extenso and accepting the husband's statement that he was getting Rs. 30,000/- per month, fixed an amount of Rs. 12,000/- per month as interim maintenance to the wife.
7. Section 24 of the Act makes a provision for maintenance pendent lite and expenses of proceedings. It reads thus:-
"S.24.- Maintenance pendent lite and expenses of proceedings.- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly, during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable.
Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be."
8. Section 24 thus provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner's own income and the income of the respondent. The very language in which Section is couched indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner's own income. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner. Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors which are mentioned in the statute.
9. In a case such as the present one, the stand of the husband that he is drawing salary of Rs. 30,000/- per month from the company since August 2005 is inherently improbable. The husband is highly qualified; he is CA, ICWA, CIMA and has also completed course of Computer Information Technology. He has worked with renowned and big companies like M/s. Kimberly Clark and M/s. Tata Technology as Finance Manager and Senior SAP Consultant respectively before he started on his own in January, 2000. He did not leave the job due to any compulsion but because he wanted to grow big. He has admitted that having worked for six years, he decided to do his own business and started the company, namely, M/s. Paysquare Consultancy Limited in which he has sought financial/administrative help of his brother and one Ms. Nilima Apte. How can it be believed that a person who has started his own business leaving the job in 2000 would start drawing the salary of Rs. 30,000/- per month from the company from August, 2005? The High Court has not taken into consideration these vital aspects and accepted the statement of the husband that he was drawing salary of Rs. 30,000/- per month as a gospel truth. Insofar as wife is concerned, it appears that she does not have any settled job; she has worked at few places for few months. We think this is eminently a case in which the High Court must reconsider the wife's application for interim maintenance.
10. Accordingly, this appeal is partly allowed, the impugned order dated September 21, 2006 is set aside and Civil Application No. 107 of 2006 made by the wife for interim maintenance is restored to the file of the High Court for fresh consideration. We expect the High Court to dispose of the application for interim maintenance expeditiously and before it proceeds with the hearing of the main appeal, being Family Court Appeal No. 10 of 2006. The cost of the appeal is quantified at Rs. 20,000/- (Rupees twenty thousand) which the respondent shall pay to the appellant within one month from today.
[AFTAB ALAM] ............................J.
[R.M. LODHA] New Delhi, July 20, 2010
A. the judgement mentioned by you is produced here for ur ready reference.
1)dont file any perjury case at present . it has to be proved that your husband has made false statement on oath .
2)since your husband has agreed to comply with court orders as to maintenance press for early hearing of your application for interim maintenance .
3) you are entitled to decent order of maintenance considering your husband lifestyle and his income
1. In Perjury case, his false statement under oath shall have to be proved. So, wait till then,
2. Your husband has already agreed for paying maintenance. So, your fight is about the amount only at this sttage,
3. Contest the case fittingly & you are likely to get 1/3rd of his net income.
1. Perjury case can be filed if there is irrebuttable evidence of your husband having lied on oath. Collect insurmountable proof of him having made a false statement. When your lawyer opines that time is ripe then throw the hammer.
2. You are bound to get a good maintenance in view of the income earned and property held by your husband and also having regard to the family lifestyle. Press for an early order on your interim maintenance claim.
1.)I have the above Judgement with me for reference. In that case it is mentioned by supreme court that wife should get inetrim according to husbands equal status.And also I have daughter her whole life is depended on me and her education,health,marriage,As I am single kidney patient I cannot work also. 2.)He had a salary increase in this month. Every year his salary will be increased. And he will be going to USA for trips. And his own IT private limited company.Based on that I am expecting at least 60k For me & my daughter.But I filled for 1 lakh.As he don't have any dependents.And also I payed daughter' school fees & bus fee around 80k.I submitted that copies and claimed for that fee. Will I get that. 3.)He filled divorce in January 2014. first hearing is in Feburary 2014.But i filled Interim in April 2014.So from which I will be eligible for maintance. I am asking all these because I have been cheated of 30lakhs by husband, and emotionally my life and more important my daughters life is spolied because of him.He even closed both of us in his office and went away. with the help of women helpline both of us came out.
The above decision will be of great help to you.
Apply for modification of interim maintenance order so the sam may be increased. In your case the interim maintenance is likely to increased for sure.
1) as on date arguments of your application for interim maintenance have not yet being heard
2) during course of your arguments you should rely upon evidence to prove your husband income is over Rs 1 lakh per month .
3)court will after considering evidence on record and judgements cited by you decide quantum of maintenance to be paid for you and your child
1. You shall have to prove that his earning is more than Rs.1 lakh based on which the Court will fix an amount for the maintenance of yourself and your child,
2. You are sure to get maintenance which is expected to be aropund 1/3rd of his net incomed,
3. You can keep filing applications for modifying the interim order periodically on the ground of his income & your expense escalation,
4. You can also file an application against your husband for alternate accomodation for yourself and your and also claim compensation for the mental torture faced by you child under DV Act.
file salary slip of ur husband in court to prove that he earning above 1 lakh and then court will pass maintenance amount accordingly in ur favour.
no perjury case is made out against ur husband.
you can also file separate maintenance application for ur daughter also in court.
1. If he does not have any dependents then you may well get what you have asked for.
2. When the court hears the arguments on your interim maintenance you should produce all the proof that you have in support of his income and properties. If the amount fixed by the court is insufficient having regard to your needs you may challenge the order of the court in a higher court and seek enhancement. In many cases the higher courts enhance the amount of maintenance when it is shown that the lower court did not award an amount to which the wife is entitled.
3. Whenever there is an increase in his income you can file for enhancement of the sum awarded to you.
No fixed formula can be laid for fixing the amount of maintenance. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant.
When your husband is hiding his income he is committing an offence under section 193 IPC. You can file a case against him. In your case, it is not expected that wife should earn. It is primary duty of married person to maintain his wife and children. However he is in USA so in this condition no coercive action can be taken by the court against him. So you can't succeed in criminal case but you have full right to get maintenance.
You should state all facts before the court that he has a pvt ltd company and earn enough to live in USA. This one fact is sufficient to prove his ability and capacity to maintain his family. At the initial stage of proceeding if applicant shows that due weak financial condition she can't take her case properly, court Suo motu take action and decide entrime maintenance and it can be decided as ex-parte( in absence of opposite party). interim maintenance is always lower than final maintenance.
You can't get 65000 p/m as a interim but according to your and your husband's living status court may be grant 65000 or more amount as maintenance. in maintenance wife has parity with her husband and equal status.
My opinion on your queries are as under:
1.)I have the above Judgement with me for reference. In that case it is mentioned by supreme court that wife should get inetrim according to husbands equal status.And also I have daughter her whole life is depended on me and her education,health,marriage,As I am single kidney patient I cannot work also.
Opinion: He will pay the maintenance as per status, you may file a complaint under section 12 of Domestic violence act against him before Magistrate and claim, protection, right to residence, maintenance, compensation and child custody. the court will consider all the facts and circumstances.
2.)He had a salary increase in this month. Every year his salary will be increased. And he will be going to USA for trips. And his own IT private limited company.Based on that I am expecting at least 60k For me & my daughter.But I filled for 1 lakh.As he don't have any dependents.And also I payed daughter' school fees & bus fee around 80k.I submitted that copies and claimed for that fee. Will I get that.
Opinion: if his salary will increase then your maintenance will also be increase, you have to file an application for enhancement of the maintenance as per section 127/128 of Cr.P.C. if you had filed any maintenance case u/s 125 of Cr.P.C.
3.)He filled divorce in January 2014. first hearing is in Feburary 2014.But i filled Interim in April 2014.So from which I will be eligible for maintance.
Opinion: From the filing of application....