Rajesh Kumar
Asked November 03, 2016

Divorce and Maintenance

  • 2 Answers
  • 566 Views

I am Rajesh. I filled a Divroce Case and she filed a maintenance case. We have sent her for the delivery in 2013 to her native and afterwards she has not yet returned with child. we tried to get her to live but she & her parents are not cooperating for any thing. So i filed a DV case. Recently we came to know that she has been working since 2013 and her ways and character is unfit for family life. But she filed a MC to get Rs.20000 per month to maintain herself and for child. But, I CANNOT provide her but OK for child. Pls suggest, why should i pay maintenance to her. Will Judge accept this as my prayer request? Note: Last month she has resigned her job for the purpose to get maintenance from me. I have proof of her job. Will the judge consider this evidence and reject her petition or will the judge ask me to provide maintenance?

Answers 2

Hi Rajesh,

First of all you should have filed petition for restitution of conjugal rights n not divorce so court would have come to know that she has deserted you n this not liable to maintenance.

But now since you have already filed divorce case so you have to proceed with case n keep all the evidence before court.Rest is on the discretion of court to decide.

Agree Comment 0 Agrees almost 4 years ago

Since the divorce case has been filed from your side, you will, most likely, face the argument of liability under Section 18 of the HAMA, 1956.[1] According to this statute, a wife can seek maintenance from her husband after divorce on the following grounds:

  • If the husband has neglected or deserted her;
  • He has been subjecting her to cruelty;
  • He has a virulent form of a disease like venereal disease or leprosy;
  • If the husband has any other wife living;
  • If he has kept a concubine or is living with one elsewhere; and
  • If the wife has any other reasonable cause to live away from her husband.
  • The Delhi High Court, recently pronounced a judgment in which it held that, in a divorce case, if the wife is educated enough to support herself, she should be looking for a job instead of pleading alimony from her divorced husband.[2]

    Assuming that none of the grounds under Section 18 of HAMA is true and you have made efforts towards persuading your wife to come and live with you, the first thing which you should do is secure all the evidence which supports your claim. Thus, you are advised to secure all the SMSes/emails/facebook/whatsapp messages and record your telephonic conversations which might prove, in any manner, that her leaving the house was her own decision and you did not compel her to do it. You are also advised to procure any documents and gather witnesses who could testify that your while away from home, your wife was working a job and is qualified and capable enough to maintain herself in the future.

    Another provision supporting a woman’s claim for maintenance is Section 125 of the Code of Criminal Procedure (Cr.P.C.). However, this provision also gives a line of defence to a man by stating that he is not liable to support the wife financially if, inter alia (amongst other things), the wife is living away from him without a pronounced/significant reason. Since this is one of your contentions, Section 125 should work in your favour.

    Although the HAMA and Cr.P.C. are meant to protect the interest of a divorced wife, they can, very well, work in your favour if you are successfully able to prove-

  • The questionable character of your wife, and
  • That, she is qualified and capable enough to financially support herself
  • Proving the abovementioned allegations will also substantiate your charges under the domestic violence case. According to a recent Supreme Court judgment, now, anyone, regardless of their age or gender, can be prosecuted under the DV Act, 2005. The Court pronounced this judgment to create a gender neutral law, keeping in mind the fact that sometimes women are the real abettors of violence at home.[3]

     

     

    [1] Hindu Adoption and Maintenance Act, 1956 lays down the grounds on which a wife can seek alimony from her husband.

    [2] Swati Kaushik vs. Ashwani Sharma, Cr. App. No. 38/14, DHC, 12.03.2015  (Exact citation not available)

    [3] Hiralal P. Harsora and Ors. Vs. Kusum Narsottamdas Harsora and Ors., MANU/SC/1269/2016; read more on this on http://indianexpress.com/article/india/india-news-india/any-person-can-now-be-tried-under-domestic-violence-act-supreme-court-3073359/

    Agree Comment 0 Agrees almost 4 years ago

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