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Family Courts cannot order the Striking of Defence of Respondent Husband for not paying the Interim Maintenance Order in CrPC 125.

November 30, 2012 Leave a comment

Good News for people fighting CrPC 125 Maintenance Case.

Everybody here would wonder the subject line but yes there’s a good news for you all……

 

If are you fighting the CrPC 125 petition and if the interim maintenance order is passed against you, and if you are not paying the Interim Maintenance so the Court cannot Strike Out your defense……yes its true…….Family Court does not have power to strike out your defense…….!!!!!!!!!!!

Today I had date in Family Court for Final Argument  and even my defense was struck which was later on set aside in respect of the Set-A-Side application filed by me and by making payment of Rs. 8000/- against the outstanding of Rs. 45000/-. But specific order was passed while setting aside the Defense Struck on 19th July 2012 which is as follows-

” The order of Striking off the defense is set aside. However, NA is specifically directed to deposit remaining amount on or before the date of Final Argument.”

 

Till date I dint comply the above order, but today when I along with opposite lawyer appeared in FAMILY COURT for argument, the opposite took strong stand regarding the Argument of NA as he didn’t complied the Order he is not allowed to argue. And the Court which is the enemy of Husband immediately followed and again strike out my defense forbidding me to carry out the Arguments.

But have anyone wondered that there is no legal provision under Section 125, Criminal Procedure Code and hence there is no power in the Family Court to strike out the defence for non payment of interim maintenance.

If any person fails without sufficient cause to comply with the order and only thing that can be under Section 125(3) is to issue warrant for levying the amount due in the manner provided for levying fines or for imprisonment as provided for in the said Sub-clause (3) of Section 125 of Criminal Procedure Code.

The Family Court is governed by the Family Courts Act. The procedure is to be followed by the Court under the said Act is as laid down under Section 10, which is as follows :

Procedure generally. –

(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one Party and denied by the other.

Hence its absolute rule that Family Court does not have power to stike out your defense….also the same has been observed in the  Judgement of Bombay High Court, below.

I did the same and the court not only set aside the Defense Struck order but also allowed me to file my written arguments immediately.

So Siffians if your defense is struck off due to the non payment of Interim Maintenance then pls use the above rule and judgment to set aside the same.
Here’s the Judgement.

http://wp.me/p1HnJY-kN

 

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Maintenance Denial

September 30, 2011 Leave a comment

Cases where maintenance pendente lite is denied to a wife on ground of misconduct

Friends, believe me this is not given to me by any Advocate, but has practically read lot of books and searched in internet.

Colleagues to quote and use this wherever possible i.e. section 18 HAMA, or interim alimony of CRPC 125, or in HMA section 24 itself.. Seven case laws on whether the misconduct of an applicant should be considered while deciding the interim alimony -:

1.Patna High Court case of Sadhana Devi V/s. Bijendra Kumar & others of 3rd March 1998 in para 6 and 7 court has not accepted the saying of wife for not staying with her husband as he is not working, because even at the time of marriage he was not working and pursuing his studies. Thus conduct of wife was wrong and Court has argued it in detailed and refuse her interim alimony.

2. Shrichand V/s. IV Additional dist. Judge, Allahabad, Santosh Kumari,I(1986) DMC 91 All, Narendra Kumar Mehta V/s. Suraj Mehta,I(1982) AP 100 etc – The grant of maintenance pendent elite and expenses under section 24 is discretionary with the court though such discretion has to be judicially exercised. The guiding principle would appear to be that if the applicant has no independent means he or she is entitled to maintenance and expenses, unless good cause to shown to deprive the applicant of it. The order exhausts itself with the conclusion of the main proceedings including the appeal filed if any. (Shashi kiran – law of maintenance – page 49).

3. Dwarkadas Gurumukhdas Agrawal V/s. Bhanuben,I(1987) DMC 46 Gujarat – There is nothing in section 24 to prevent a Court from taking into consideration the conduct of the parties. But that is too spacious a contention since at least in the original proceedings if this point is conceded, it would require the Court to judge the merits of the rival contentions of the parties when deciding an application for interim alimony and if such as exercise is permitted the Court’s discretion would be fettered merely by the nature of the allegations made in the petition and would be compelled to examine the merits of the same at least prima facie. (Shashi kiran – law of maintenance – page 49)

4. Even in Balbir Singh V/s. Swarna Kanta AIR 1981 Raj 266; 1980 Raj LW 654 – L It is within the discretion of the court to make an order for maintenance pendent elite, and merely because two of the conditions, namely, the wife or the husband, as the case may be, has no indepdendent income sufficient for her/his support and necessary expenses of the proceedings, and the other spouse has sufficient means, are satisfied, then it is not necessary for the Court to order payment of maintenance pendente lite and expenses of the proceedings. Therefore, though it is not specifically provided that the conduct of the applicant for maintenance pendent elite and expenses of the proceedings is to be taken into consideration, but the fact that the discretion of the Court to make an order or not to make an order goes to show that the Court has to taken the conduct and the other circumstances also into consideration while disposing of the application u/sec. 24 l ong back in 1986 it was held that though this section does not refer to the conduct of parties as in sect.25, the Court can take into account the conduct of parties. (Shashi kiran – law of maintenance – page 61)

5. Vinod Kumar V/s. kaushalya, I (1996) DMc 603 Raj – It is true that if suit for divorce is decreed after trial on the ground of adultery then wife will not be entitled to get permanent alimony and maintenance u/sec 25 of HMa because adultery alleged against her is proved. But at the stage of the proceeding u/sec 24 if the HMA adultery is only alleged. There is large gap between “adultery alleged” at the stage of proceeding under section 24 of the aforesaid Act and adultery found to be proved by court trial at the stage of proceeding u/sec 25 of the said Act. (Shashi kiran – law of maintenance – page 50)

6. Munnibai V/s. Jagdish Rathore, 1999 (2) CCC 6 (MP) – There may be cases where the character and gravity of the conduct is such which may be found repugnant to the concept and the institution of marriage and it may be wholly unjust to ignore them while considering the question of releasing or withholding the benefit contemplated u/sec 24 of the Act, but it all depends on the facts of each case and cogent reasons have to be recorded for withholding the grant of the benefit u/sec 24 of the Act. (Shashi kiran – law of maintenance – page 54)

7. Sulochanabai v/s. Tikaram, I (1986) DMC 351 MP – The court normally consider it predent to adhere to the principle of a marriage de facto carries the right of alimony pendent elite; but this principle of matrimonial law has necessarily to be considered in the light of the attending circumstances, when the court exercise its discretion as to whether the wife should be granted or not alimony. The conduct of the parties can not be ignored by the court while passing the orders u/sec 24 of HMA. In a case where the wife has brought cohabitation to an end by such misconduct for which the husband is not be blamed, the Court may well refuse to grant alimony and expenses for litigation pendent lite. (wife was having extramarital affair with Dhanraj Hirkane. It was hled that the misconduct on the part of the wife, having thus been established, she has obviously no case for her claim for alimony and litigation expenses pendent elite. Friends, believe me this is not given to me by any Advocate, but has practically read lot of books and searched in internet.

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