How Maintenance to wife is assessed in S.24 HMA
There are some criteria’s which are set by Indian courts in order to calculate and assess maintenance to be paid by the Husband to wife under S.24 of HMA.
Did you though that Income tax returns are best way to assess the income of the husband well no.
The income tax returns do not reflects true position of income of a party for several reason, and cannot be taken as a sole guide for income of the party in maintenance proceedings.( VD Mehta V. KV mehta, AIR BOM 120).
If wife is taking the support of father and brother then also it is not considered in assessing the quantum of maintenance to be awarded by the court (Radhika Rai V. Sadhu Ram AIR 1970 MP 14).
Bail not Jail
Yes this is how the principle is enshrined in the constitution of India and Article 21 of the constitution of India enshrines this principle as “Right to Life”. But can we say that this principle is being followed in the courts of law and the accused persons who are languishing under trails in jails on the basis of false allegations and getting the most cherished right of the constitution of India. I feel the answer is NO, because the courts have without going into the correctness of the allegations of case, rather merely dismissing the same by just saying that it is matter of trail and at this stage the same cannot be taken into consideration or just that since the charge sheet has not been filed and therefore it is not the right stage to apply for bail.
Specific Performance of Contract
The Specific Relief Act, 1963 have come with an sole objective to grant the specific reliefs in multiple ways like specific performance of contract (movable as well as immovable property) Injunctions (permanent, temporary and mandatory). But in order the seek the relief of specific performance of the contract especially in cases of immovable property (because of the exceptional rise in the prices of the immovable property with the passage of time) false fresh cases are being filed on the basis of the forged documents and the petitioner seeking the enforcement of specific performance of contract without application of thoughtful mind and by merely making the false and forged document or copy of the money receipt fails to see the far reaching consequences of their wrong decision by take the advice of ………………
The courts with the passage of time and seeing the rise in the number of false cases for specific performance of contract and that too coming after the lapse of many years could sense that if the document relied was genuine and valid, then why the petitioner took so many years to come before the court (which is also a defence being taken by the defendant), the petitioner not ready and willing to perform the part of his contract etc. In fact there are many other factors which the court must take into consideration before granting or denying the relief for specific performance.
125 CrPc-How to alter the maintenance
Once the order of maintenance is pronounced under 125 CrPC by the court against the husband than what is the legal recourse the poor husband has? One is to go for revision and already scope of revision is limited and it can only be exercised if some evidence is left which needs to have been appreciated and was not appreciated by the court, such that other recourse left is alter the maintenance amount by filing a alteration application under 127 CrPC again this application has limited scope.
These are the circumstances where it would be advisable to go for application under 127 CrPC for alteration of the maintenance amount.
Retirement of husband.
Loss of job of Husband
wife become earning member herself is change in circumstances(PN Manikkuttan Nair V. KR Cirija Amma 2000 Cri LJ 3726)
Section 127 can also be used to cancellation of maintenance on varied circumstances.
section 127 can again be used for enhancement of maintenance amount, judicial notice of inflation, resulting in fall in purchasing power of money could be taken as enhancing maintainence.(Dhan Raj V. Kishni)
Husband cannot avoid to pay enhancement of maintenance on technical plea of not proving actual monthly income.(Bimabadhar Behera V. Smt pratitnamani Behera)
The change in circumstances is the soul for invoking the provisions of section 127 CrPC and both husband and wife both can invoke the provisions related to alteration of maintenance.
Adv. Nitish Banka
125 CrPC-Scope of Revision
These days many men are affected by the final order of maintenance towards their wife and are looking for best possible legal option to reduce interim/final maintenance amount or even looking for setting aside the said amount.
The trial courts uses their own methodology to evaluate and measure the quantum of maintenance which may be imposed on to the husband, but what about the husband who is dissatisfied by the order of the trial court in 125 CrPC proceedings?
One of the legal option is to go for revision proceedings in the higher court as appeal against the order under 125 CrPC is not maintainable, but whether you should opt for revision proceedings or not depends on the merit of the case in hand.
A revision in the higher court is of limited purposes only and higher courts have limited jurisdiction to adjudicate or to decide upon the order given by the lower court here are the limitation and scope.
-> The High court will not interfere in the finding of the lower court if the evidence is properly appreciated. Kamla Devi V. Mool Raj
->If there is a positive finding that husband has failed to maintain wife, therefore the order of maintenance is passed. The Revisional court cannot upset and interfere with the finding of lower court. Munesh Kumari V. sheo Raj Singh
->The questions related to child is illegitimate, is applicant a wife, being pre-eminently questions of fact cannot be reopened and revisional court cannot substitute its own views. Now if the finding of the trial court is that applicant is a legally wedded wife and high court disturbs the finding that applicant is not a legally wedded wife and disturbs the finding this cannot be permitted as the finding would become negative and such findings would have have a long lasting impact on the society with evil consequences.
However if the finding of the high court is negetive than only higher courts have power to interfere with the order. Santosh(smt) V. Naresh Pal
Advocate Nitish Banka