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wife filed for restitution and husband filed memo to allow the prayers, but judge is conisderin  


wife filed for restitution and husband filed memo to allow the prayers of wife, but judge wanted to dissolved the marriage because on several occasions wife told in open court im not willing to reunion. so Jude now saying pay a lumpsum payment and get relieved however the amount what wife asking is not realistic because its more than 20 lakhs and Judge is insisting and threatening to make that payment . because wife filed two cases in 2013 asking for restution under sec 9 and mc 125 for maintenance. I got an order in 2014 to pay an amount of rs 4000 which i obyed and payed till date without any arrears. in the year 2016 i applied for divorce . in 2018 when other party comes for compromise and they dont want to talk about merits in the case and only want to fix the quantam by threatening me to pay that huge amount ,since i dont know what to do , I not pressed my divorce petiotion and prayed to allow sec 9 . now the judge wanted to take the mc as a spearate case and wanted to put huge amount and wanted to Attach EP etc etc ,just to extort money from me in favour or wife .. now is it possible to do like that .. ??


Assuming that you are a Hindu, you can make a petition before the Court that you do not want to dispose the marriage and make a separate petition to make aware the Court that if any way the quantum of maintenance is decided, the Court need to take reference to the order passed in Sh.Bharat Hegde Vs. Smt.Saroj Hegde (Link: -  https://indiankanoon.org/doc/260066/) , where the Delhi High Court considered the following factors before deciding in awarding the amount: -

1.  Status of the parties. 

2. Reasonable wants of the claimant. 

3. The independent income and property of the claimant. 

4. The number of persons, the non applicant has to maintain. 

5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home. 

6 Non-applicant’s liabilities, if any. 

7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant. 

8. Payment capacity of the non applicant. 

9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed. 

10. The non applicant to defray the cost of litigation. 

11. The amount awarded Under Section 125 Cr.PC is adjustable against the amount awarded Under Section 24 of the Act.

And also the other way the Supreme Court of India in Kalyan Dey Chowdhury vs Rita Dey Chowdhury held that the 25% of the Husband's net salary is just and proper to decide the quantum of maintenance per month for the wife. (Link: - http://www.advocatekhoj.com/library/judgments/announcement.php?WID=8780)

The same judgement was also upheld in Kulbhushan Kumar vs Raj Kumari & Anr. (Link: -  https://indiankanoon.org/doc/1670667/)

Please do remember that the drafting must be good and well descriptive so that in case the same if required to challenge, may you refer in the appeal at that point of time that the Court actually do not considered the Superior's Court's earlier Judgement and passed the impugned order without putting its Judicial and rational mind!!

Pradipta Nath


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