How to fight the section 125 of the criminal procedure code filed by your wife?

Section 125(1) of the criminal procedure code is codified for the maintenance to the wife, children’s and parents who are unable to maintain themselves. The proviso has been made in social interest.

Procedure under Section 125 of the criminal procedure code is quasi civil quasi criminal in nature and is a summary procedure.

When you will receive any notice/summons from the court:-

1. Never ignore/refuse to receive notice/summons weather it is by post or by police authority or any other way because if it may returned with remark that, the respondent refused to receive the notice, the opposite party will get chance to proceed “X” party against you.

2. Read the notice and see if the copy of the application is attached with it or not if any read it carefully.

3. If you are not capable to defend the matter in person, think about to appoint the advocate always choose honest and expert advocate.

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.

6. File written statement/say with verification and with support of the affidavit. Be careful at the time of filing the written statement, see whether you have drafted the written statement keeping above mentioned points in the mind:-

A. Which material facts have suppressed and has not disclosed by wife in her application.
B. She is able to maintain herself.
C. Her education, profession, service, business, income, her ancestral properties and weather she is taking any income/ share from ancestral properties etc.
D. She has unreasonably deserted you and you are ready to cohabit with her.
E. If she is leaving in adultery. (proof is very necessary otherwise never take this ground it will permanently close the doors of the justice.)
F. Reason why she has filed the false application against you.
G. All the dependents on you and all the loans, deductions, compulsory deductions, illness of you and your family members and spending’s on it.
H. If maintenance may be granted you cannot maintain yourself.
I. State that, if maintenance may be granted your matrimonial life will break and your wife will never give response to your request of the cohabitation.
J. If any interim of final maintenance has been granted to the wife in another proceeding.
K. If she has filed multiple maintenance proceedings. Multiple maintenance proceedings are not allowed by law.

7. Points for the consideration at the time of cross:-
i. Enable the wife to admit her income, business, service educational coalification her ancestral properties and incomes she getting from her parents.
ii. Enable the wife to admit that, she is not ready to cohabit with you.
iii. Enable the wife to admit that, she has left your house.
iv. Enable the wife to admit that, to make contradictory statements to her statements about cruelty, ill-treatment, dowry harassments etc.
v. Enable the wife to admit that, other family members of your family are depend on you and some members are old and are sick.

8. Documents and oral evidence to support your case on above points:-
A. Salary slips, Fixed Deposits of the wife, her shares in ancestral property, business, Rt-returns educational and professional coalification. Documentary and oral evidence can be leaded to prove the same. Documents can be called by court orders.
B. Your matrimonial life was happy and no ill-treatment or harassment has been caused.
C. She not wishes to live with you; unreasonably she has left your house.
D. She is leaving Adultery (if really is in adultery). Can be proved by oral evidence.

9. Alternative remedies:-

I. Prefer stay application to stay the proceeding under section 125, if other proceedings for the maintenance already has preferred by wife.
Case laws to support your application:-
a) Mumbai High Court Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar And Another on 17/7/1991.
b) IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: 30th August, 2010 Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010 % 30.8.2010 Rachna Kathuria … Petitioner Versus Ramesh Kathuria … Respondent
c) Bombay High Court Sangeeta Piyush Raj vs Piyush Chaturbhuj Raj on 13 January, 1998 Equivalent citations: 1998 (3) BomCR 207, II (1998) DMC 443 Bench: M S C.J., R Kochar.

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 not 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”.

Section 125(4) is codified as above:-

“No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”

11. Other options:-
If your wife obtained order of interim maintenance or final maintenance by playing fraud on court you may prefer application, suit, revision, writ etc. to cancel the order or declare that, the order is nullity.
Case laws for support:-
a) Supreme Court of India A.V. Papayya Sastry & Ors vs Government Of A.P. & Ors on 7 March, 2007.
b) Delhi High Court Manmohan Singh Dhaliwal vs Gurbax Singh Arora And Ors. on 2 November, 2001 Equivalent citations: 94 (2001) DLT 820, 2002 (61) DRJ 801.
12. Insolvent person may file proceeding for the declaration that, “He is insolvent person”. After declaration JMFC or any other court has no jurisdiction to order to pay maintenance to the wife or recover the maintenance already granted.