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Legal service India => Divorce Laws => Topic started by: harshil.k on May 01, 2015, 05:08:40 AM

Title: Alimony issue after mutual consent divorce dicree
Post by: harshil.k on May 01, 2015, 05:08:40 AM
Hello Sir/Ma'am,
I am a 31yrs. old,resident of Mumbai.
I got divorced with my wife in month of july2014 in mutual agreement at family court located in Bandra, Mumbai.
We have a son who is now 4yrs. old and in her custody.

In mutual agreed divorced, I agreed to pay rs. 15000/pm for 5yrs and education expense for child.

I have been unemployed since a long time however I have been managing to pay the agreed alimony.

My present financial situation is very bad and not in a position to pay the alimony.
I have paid alimony till march2015 from the time we filed the divorce application.

My ex. Wife resides in mangalore (Karnataka) and she has informed me that she is filing case against me in Mangalore court for not paying alimony and now she wants one time settlement.

I am not in a situation to hire a lawyer and I cant afford to travel to Mangalore too.

I am working hard to find a job for my self at the moment and I am also afraid that if i get entangled with this how will i find a job or if I get a job, how will i be able to work.

I would highly oblige yours expert advice.
In anticipation of your urgent response.

Harshil Kamdar
Mob: 8652891969
Title: Re: Alimony issue after mutual consent divorce decree
Post by: sanath.iyer on May 01, 2015, 06:58:26 AM
My friend, that is exactly why men should never agree to divorce their wives. It is easier to stay married to a bad wife for your entire life than to see her walk away with your hard-earned money. The one time settlement thing will make your ex-wife eligible for half your assets including your family inheritance.

My suggestion is that you immediately hire a good lawyer and apply at Bandra family court for reduction of monthly maintenance amount by citing your unemployment status. In that case, if your ex-wife files a case at Mangalore, then you can request the Mangalore court to club that case with the ongoing case at Bandra family court. Then your ex-wife will have to travel to Mumbai or will have to approach the Supreme Court to get the case transferred back to Mangalore family court.

As a permanent solution, you can only pray that your ex-wife remarries or gets a well paying job so that you can stop paying maintenance amount.

Also, if you need a job call 7302777777.

S.V. Iyer
Title: Re: Alimony issue after mutual consent divorce dicree
Post by: saravanan.s on May 01, 2015, 10:53:22 AM
You shouldnt have agreed for monthly maintenance in the mou instead that time itself you should have gone for one time maintenance.but now i doubt whether she can claim one time now.she can file a case for execution order in the court.she cant claim anything from your property and all
Title: Re: Alimony issue after mutual consent divorce dicree
Post by: harshil.k on May 01, 2015, 11:15:30 AM
Dear Mr. iyer,

Thank you for your valued inputs.

Further to your revert, I would like to tell you that I do not have any asset or bank balance. I come from a middle class family and all we have is the house in the name of my parents.
Sincerely request you if could please suggest solution for followings

Can she get my parents involved in any litigation?

Do her or my son have any rights over my parents asset?

Since I have not paid her for the month of March 2015, will this put me in trouble?

Since the decree is issued by Hon. Court in mum, on what ground she can file case in M'lore? Isn't this come under mum jurisdiction?

There is no way I can give her one time settlement and also for the month I have not paid is due to no earnings or support from any source. Hon. Court can grant me couple of months relief till I find a job?

I would also like to bring it to your attention that she lives in her mother owned house. Her mother is also divorcee however to best of my knowledge my ex. Wife gets support from her father and also from her mother who works abroad.

In Mumbai can I approach Gov't. Lawyer? If yes, how? (to save lawyers fee)

In future how will I come to know if she remarries or gets a job?

Hope its not too much to ask.

Looking forward to your continued support.

Thanking you.
Harshil Kamdar
Title: Re: Alimony issue after mutual consent divorce dicree
Post by: harshil.k on May 01, 2015, 11:22:10 AM
Dear Mr. Saravanan,

Appreciate your revert.

If you can kindly consider my latest post/reply above and give your expert opinion too would help understand better.

Thank you.
Harshil Kamdar
Title: Re: Alimony issue after mutual consent divorce dicree
Post by: saravanan.s on May 01, 2015, 11:23:14 PM
She cant drag your parents into the maintenance issue and also has no rights to claim your parents assests.she can go to the court to get a execution order or she can file a distress warramt in the ps.inspite of that if you fail to pay the maintenance you will be sent to the civil prison for which the plaintiff has to bear the expenses and one cant be kept more than three momths in civil have to convince the court about the present financial situation and the reason for the default in must only gather proofs about her marriage if it happens in future and file a petition in court praying for cancellation of maintenance
Title: Re: Alimony issue after mutual consent divorce dicree
Post by: harshil.k on May 02, 2015, 05:35:30 AM
Hello Mr. Sarvanan,

Can you please help me understand:

What kind of execution order can she get from court?
What is the meaning of plaintiff?

Sir, as per my telecon today, she has informed me that she will be coming to Mumbai and first she will lodge a Police complain after which she will approach the court.

As I explained in my previous post, my present financial situation is very bad. Please advice me what is the immediate step I must take to avoid civil prison or any sort of arrest.

What is the best way I can prove my financial crisis. ( left my last job in Nov 2013, since than I have been struggling with freelance work)

I have a diabetes, sever gastric problem also was hospitalised for few days due to not keeping well.

Looking forward to your prompt reply.

Thank you.
Harshil Kamdar
Title: Re: Alimony issue after mutual consent divorce dicree
Post by: Advocate M.Bhadra on May 02, 2015, 08:05:03 AM
You have to appear to defend the case otherwise your wife may obtain ex-parte order.Here under a citation in:-

Punjab-Haryana High Court
Sushil Kumar vs Neelam on 18 March, 2004

Equivalent citations: 2004 CriLJ 3690, I (2005) DMC 619

" the respondent former wife, who is living in destitute and has not re-married, and is not capable to maintain herself, cannot be denied the bare minimum of the life to survive in the "survival of the fittest society". A former husband, though he has divorced his wife, cannot be discharged from his statutory duty and obligation to provide the minimum amount of maintenance to his former wife. Therefore, it will be open for the respondent to move to the Judicial Magistrate for enhancement of the amount of interim maintenance."

M.Bhadra,advocate at Kolkata,9836589246
Title: Re: Alimony issue after mutual consent divorce dicree
Post by: sanath.iyer on May 03, 2015, 01:53:33 PM
Dear Mr. Kamdar,

According to me, the answers to your questions are as below. I am speaking from practical experience. So, please consult your lawyer before you take any steps.

1. If your wife wants to trouble you, she can file a case of dowry harassment (498A) against you and your parents in a local police station in Mumbai. Usually, the police will blindly arrest you and all your family members mentioned in the complaint without any kind of investigation. The fact that you are already divorced will not deter police from arresting you. Your lawyer will have to submit a bail application in court which is usually granted easily. So, you and your family may not have to spend much time in prison. If your family wants to evade arrest, they can place an ad in local newspaper disowning you. If they cease to remain family members (on papers) then they cannot be arrested by the police. Also, later when it is proved in court that your wife had filed a false case against you, the judge will usually let her off with a mild warning. Since, she may not have to face any repercussions, her lawyer may advice her to go ahead with the false complaint to harass you.

2. Yes, your wife and son certainly have rights over your parent's property but only if you inherit it. If your father inherited the property from your grandfather then, you automatically inherit the same even if you don't want it. So, whether you like it or not, your wife can claim share in the same. But if your father had purchased the property from his own earnings, then he may chose to make a will declaring somebody else as the inheritor. In that case, your wife and son cannot ask for a share in the property. In case, your wife remarries, she loses her rights to your inherited property but your son can still claim his stake.

2. Not paying monthly maintenance for 1 or 2 months will not harm you. The court will certainly consider your unemployment status and will let you off with a warning to pay the amount in a specified time. But if you repeatedly miss the payment deadline, the court may decide to punish you with imprisonment upto 3 months.

3. Even if the divorce was granted by Mumbai Family court, your wife is allowed to file a case in Mangalore Family court stating that she is not receiving maintenance from you. The onus is on you to get the case transferred to Mumbai Family Court. In 90% cases, the court allows the case to be tried in place where wife resides. The wife's convenience is more important to the court than the husband.

4. Since you are paying monthly maintenance regularly, except maybe one or two payments, your wife's plea for one time settlement may not be entertained by the court. However, regularly missing payment deadlines may lead the court to order a one time settlement. But this happens only in rare cases if the court is convinced that the husband is deliberately not paying. If you can successfully prove that you are unemployed for a long time, the court may order reduction of maintenance amount.

5. If your wife gets financial support from her father, then it will treated by the court as her income. If you are unemployed and your wife has a constant income, you can claim relief from paying maintenance till your income exceeds hers. In very rare cases, the court may even order your wife to share her income with you. But for that, the court needs to be convinced, that you are incapable to earn because of your medical condition (diabetes, severe gastric problem etc.)

6. In case you cannot afford a lawyer, you may submit a written application and the court might appoint a lawyer free of cost. But usually, such lawyers aren't good and can't get you favourable judgements.

7. You'll have to spy on your wife through her relatives or hire a detective to find out if she has remarried or in a relationship. If you can successfully prove such a thing in court, the case will certainly turn in your favour. After remarriage, your wife cannot claim any maintenance but you would have to continue paying for your son's expenses.

Divorce is a battle where husband usually loses everything (wife, children, money, property, self respect etc.) and wife gains everything just by losing the husband.

Divorce laws in India are skewed in favour of wife and in many cases family court judgements defy logic.

All the best. And remember, you are not alone. We are always there to help and support you.

Title: Re: Alimony issue after mutual consent divorce dicree
Post by: harshil.k on May 04, 2015, 02:25:34 AM
Thank you Mr. Iyer for your support.
Title: Re: Alimony issue after mutual consent divorce dicree
Post by: harshil.k on May 05, 2015, 10:18:00 PM
Good day Mr. Saravanan,

With reference to your last comment/advice .. I have some query, kindly request you to revert urgently.

FYI: I have paid the amount to my ex.wife for the month of april'2015. However from this month onwards it seems difficult. I need at least 3 months as relief to get in stable financial situation.

She confirmed with me over call yesterday tht she has received the money.. Yet she will be going ahead with filing petition / complain in the court.

Kindly advice the immediate step which I must take.

Warm regards,
Harshil Kamdar