Escolar Documentos
Profissional Documentos
Cultura Documentos
2. Read the notice and see if the copy of the application is attached
with it or not if any read it carefully.
4. Never give all the papers to your advocate always keep one
Photo copy of every paper in your file. At first don’t give original
papers, supply only photo copies. But for producing the
documents in court give original copies.
5. Read the application again and again and now read the
application of your wife keeping above mentioned points in your
mind:-
I. If your wife is in service or has any business or ancestral
properties or any other income sources or is well educated try to
find out that, weather wife has disclosed these material facts in her
application or has not disclosed if she has not disclosed. This is
your 1st and best defense ground that, wife is not with clean
hands.
II. If she has admitted her job, income etc in her application. You
have good defense that, she is able to maintain her and therefore is
not entitled for the maintenance. This is your 2nd ground for the
defense.
III. Find out that, weather wife has filed the application within the
jurisdiction of the court, where she lives or where she lived lastly
with you or where you live or where your marriage was
solemnized if not you have defensed that, the court has no
jurisdiction to entertain the application. This is your 3rd ground.
( reference:- section 126 of the criminal procedure code)
IV. Find out that, weather the wife has made false, misleading
statements in the application if any note down the material
statements and keep always in your mind that, you have to prove
that, these statements are false and misleading. Try to collect
evidence for the same and keep these statements in your mind at
the time of wife’s cross-examination before the court. Give
suggestions to your advocate bring out the truth through wife’s
own mouth at the time of cross examination. If you succeeded to
bring out contradictory statements, this may impeach the credit of
the wife and she also may be libel for the procuration for the false
evidence. This is your 4th defense ground
V. Find out that, if wife has filed any other proceedings against
you obtain the copies of the same and after comparative study find
out that, if she has made any contradictory statements in another
proceedings or has admitted some facts. If she has admitted
material facts you can use these statements as admission in view
of section 17and section 58 r/w sections 31 of the Indian evidence
act. And if any contradictory statements has made use that
statements to impeach the credit of the wife in view of section
155(3) and section 145of the Indian evidence act. This is your 5th
ground for the defense.
VI. Find out that, if she has stated in her application that, she is
not ready to live with you and she is not interested to live with you
then you have best ground for the defense that, unreasonably your
wife has deserted you and therefore she is not entitled for the
maintenance. This is your 6th ground for the defense.
VII. Find out that, if wife has made only vague statements and
vague allegation against you and against your family without any
details, events, dates or other facts you have ground for the
defense of “Insufficient and vague pleadings” and “allegations are
general in nature”. This is your 7th ground for the defense.
VIII. If she has earlier filed maintenance proceedings or has
obtained maintenance orders, you have defensed that, multiple
maintenance proceedings are not allowed therefore the proceeding
under section125 may be stayed or quashed. This is your 8th
ground for the defense.
9. Alternative remedies:-
II. Obtain decree from the competent civil court for the restitution
of the conjugal rights or decree of divorce on ground of desertion
or on ground of adultery. Her application will be rejected on this
ground or if already maintenance has granted it will be cancelled
under section 127 of the criminal procedure code.
10. Effective argument; points for the arguments:-
I. She has unreasonably left the house and has deserted the
husband, therefore is no t entitled for the maintenance:-
Case laws on this point for support your argument:-
a) Rohtash Sigh vs Smt. Ramendri AIR 2000 SC 952.
b) SanjaySudhakarBhosale Versus Khristina w/o Sanjay Bhosale
dated 8.4.2008.
c) Uttaranchal High Court Smt. Archana Gupta & Another vs Sri
Rajeev Gupta & Another on 18 November, 2009.
d) Rajasthan High Court. Bheekha Ram vs Goma Devi And Ors.
on 22 January, 1999. Equivalent citations: 1999 CriLJ 1789.
Author: G Gupta. Bench: G Gupta….
II. She has her business, service and other income sources, she is
well educated and She is capable to maintain herself:-
Case laws on this point for support your argument:-
a) Karnataka High Court Equivalent citations: AIR 2005 Kant
417, ILR 2005 KAR 4981.
b) IN THE HIGH COURT OF DELHI AT NEW DELHI Date of
Order: September 18,2008 CM(M) 949/2008 Manish Kumar …
Petitioner Versus Mrs. Pratibha…Respondent.
c) Delhi High Court Kaveri vs Neel Sagar & Anr. on 25 October,
2010.CM(M) 1153/2008 KAVITA PRASAD ….. Petitioner versus
RAM ASHRAY PRASAD …..
III. She has suppressed material facts from the court and is playing
fraud on court as well is playing fraud on opponent and she is not
with clean hands, therefore she is not entitled for relief of
maintenance or any other reliefs. Person whose case is based on
falsehood can be throughout at any stage of the proceeding and
has not any right to seek any relief from the court.
Case laws on this point for support your argument:-
a) Supreme Court of India S.P Chengalvaraya Naidu vs Jagannath
on 27 October, 1993 Equivalent citations: 1994 AIR 853, 1994
SCC (1) 1.
b) Kolkata High Court (Appellete Side) Md. Ashiruddin & Anr vs
State Of West Begal & Anr on 25 March, 2008.
c) Supreme Court of India G.M. Haryana Roadways vs Jai
Bhagwan & Anr on 5 March, 2008.
IV. You are ready to maintain to her if she lived with you:-
Legal provisions to support your argument:-
Section 125(4) and section 125(5) is codified to protect the right
of the husband to cohabit with his wife. At any time you can ask
your wife to cohabit with you. If unreasonably she refused, she is
not entitled to maintenance. Even after the maintenance order you
can give offer to your wife to live with you and if your wife
unreasonably refused to co habit with you her maintenance order
may be cancelled.
Section 125(5) is codified as above:- “On proof that any wife in
whose favor an order has been made under this section is living in
adultery, or that without sufficient reason she refuses to live with
her husband, or that they are living separately by mutual consent,
the Magistrate shall cancel the order”.
11. Maintenance arrears of one year only from the date of filing
the petition. (High Court AP), Hbl D.J. Raju, J., order on 31
March 1984, Jangam Srinivasa Rao Vs Jangam Rajeswari & ors.
Citation No. 1990 Cri LJ 2506.
38. Wife should clear that she is unable to maintain herself. (HC
Allahabad), Hbl J. B. Katju, order on 25-03-1976, Manmohan
Singh Vs Smt. Mahindra Kaur. Citation No. 1976 Cri LJ 1664.
39. No Maintenance if wife is working. (HC Uttaranchal), Hbl J.
Dharamveer, order on 25-10-2010, Crl Rev. No. 88 of 2002, Vikas
Jain Vs Deepali @ Ayushi. Citation No. LAWS (UTN) 2010-1-36.
49. Qualified wife should work for maintenance. (HC Delhi), Hbl
J. Shiv Narayan Dhingra, order on 01-10-2008, CM (M) 1153 of
2008 (DEL) , Kavita Prasad Vs Ram Ashrey Prasad.
50. 125 CrPC is Civil in Nature. (Supreme Court), Hbl Dr. Arijit
Pasayat J., order on 05-06-2007, Appeal (Crl.) 795 of 2001, Iqbal
Bano Vs State of UP & Ors. Citation Nos. AIR 2007 SC 2215;
(2007) 6 SCC 785; 2007 AIR SWC 3880; (2007) 3 SCC (Cri) 258;
Cr LR (SC) 554.
51. NBW cannot be issued for nonpayment of maintenance. (HC
Kerala), Hbl J. Sashidharan Nambiar, order on 10-12-2010, Crl
MC No. 4843 of 2010, Shanvas Vs Raseena & State of Kerala.
58. Steps made for the trial Courts while dealing with the civil
trials. Punishment imposed Rs. 2 Lakhs on producing false
documents, concealment of the facts and false & fabricated
frivolous litigation to get wrongdoers benefits. (SC), Hbl JJ,
Dalveer Bhandari and Deepak Verma, date of Order July, 4, 2011,
Civil Appeal Nos. 4912 -4913 of 2011, Arising SLP (C) Nos.
3157-31-58 of 2011, Ramrameshwari Devi and Ors. Vs Nirmala
Devi and Ors. Citation Nos. (2011) 8 SCC 249; 2011(6) SCALE
677; JT 2011 (8) SC 90; 2011 AIR SCW 4000; 2011 (4) Supreme
625.
Bhupinder Singh Vs Daljit Kaur. Citation No. 1979 AIR 442, 1979
SCR (2) 292, 1979 SCC (3) 352