The Right to Maintenance under section 125 Cr.P.C. of wife cannot be taken away even if an application of maintenance is rejected during the pendency of the Divorce petition. If a husband files a petition challenging the order and the maintenance under Sec 125 Cr.P.C before the Family Court where the divorce petition is pending, the husband cannot claim to not give maintenance to the wife. The husband is bound to pay the maintenance as per the decision passed by the court. If a petition filed by the husband under the impugned order of the maintenance is a direct violation of the consent orders clearly stated and passed by the High Court or the Supreme Court.
ROLE OF FAMILY COURT
- Family Court should appreciate the order passed on the issue by the High Court or the Supreme Court
- Family Court should maintain the mechanical manner of application filed.
- Family Court should not without proper justice procedure make decisions, as cases are of sensitive nature.
HUSBAND REFUSES TO GIVE MAINTENANCE IS INVALID
If the husband files a petition against the impugned order and the maintenance petition it is in direct violation of the consent order duly clarified and reiterated by a Division Bench of High Court and the judgment passed by the Supreme Court. And if the Family Court, in a mechanical manner had dismissed the application filed by the husband for dismissal of the maintenance petition filed by the respondent wife without appreciating the orders passed on the issue then the dismissal is invalid and stands challenging.
HUSBAND CANNOT CLAIM NOT TO PAY MAINTENANCE IF
- He has making payment of school fees of their children.
- He is earning less amount of salary than before.
- He has to maintain his parents.
- He is unemployment after the divorce decree is passed.
- He is alcoholic and is unable to pay the wife.
The Husband cannot claim not to pay the maintenance to the wife just because he has been making payment of school fees of their children. It is the duty of the husband which is ordered by the court to give maintenance to the wife and such order passed by the court shall not be challenged. If the husband has stop making any payment of maintenance to his wife on the basis that he has been making payment of school fees of the children, the husband is violating the right of maintenance of the wife. The husband if files a petition in the family court will also violate the consent order with impunity which means he cannot say that the wife cannot seek the remedial measures.
HUSBAND CAN CLAIM NOT TO PAY MAINTENANCE ONLY
The husband can only claim such petition if he has notified the court about the non capacity of making the payment for the maintenance to the wife, that if the husband has any reservations due to which he cannot pay the intimated maintenance. But later on the husband cannot claim that he does want or have the capacity to make payment of maintenance.
CONCLUSION
The Right of Maintenance of the wife is guarded by law and therefore, the husband who has failed to comply with the order given by the court he cannot claim that the wife must act under the given order. Under section 125 Cr.P.C. the scope and ambit of maintenance is huge and the wife is entitled to this right even if due to the pendency of the divorce petition the application for maintenance gets rejected is completely void and against the law.
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