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Ch 10. How to use judgments and precedents?
In Chapter 6, we covered how to file objections to wife's maintenance application under CrPC 125 or DV Act.
Under CrPC 125, the main way to deny maintenance amount is to deny any neglect or refusal on part of husband.
Under DV Act, the main objection of husband should be to deny all allegations of domestic violence made by wife - be they of any form -- whether physical, emotional, economic abuse etc.
Some of the evidence collected as suggested in Chapter 8, should be produced in court to show that her allegations are malicious and motivated with sole purpose to harass husband, and claim maintenance.
One basic principle of law is: No one can take advantage of their own wrong. For example, I cannot take up a insurance policy on my car, next day burn the car myself, and then proceed to claim the insurance amount from insurer! That would be taking advantage of my own wrong.
We have to use this basic principle to deny maintenance always. Tell everyone, judges, mediators, opponent advocate, your advocate; that this woman cannot be allowed to take advantage of her own wrong. She cannot leave husband house out of her own free will, cook up some sob stories of violence at the hand of her husband, and then claim to get maintenance from husband based on those cooked up allegations.
It's a very simple principle, but as yet I haven't seen it being argued in courtroom, or being mentioned in maintenance related judgments a lot. It needs to happen more and more often. The reason it's not being mentioned is simply because of two reasons:
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Many husbands themselves are in two minds about whether wife will come back or not, so they think why make it difficult for her to come back? They end up only defending weakly, or even making the mistake of doing things like filing RCR etc, which can actually lead to higher interim maintenance than lower contrary to what many think, as I have already explained in Chapter 9.
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The husbands' lawyers in matrimonial cases basically take it as just one more case: they focus more on doing routine things like filing petitions, objections, filing IAs etc, and then leaving it to the judge on whatever gets ordered. Let me clarify that I don't think the wives' lawyers are acting in any great professional manner either. They draft horrendous petitions with mistakes and contradictions, so they are probably as or even lazier than husbands' lawyers in my opinion. Matrimonial litigation is probably the easiest way to earn money if one has a LLB degree.
How to use the judgments in following chapters?
Following chapters cite several important judgments, with important parts excerpted, and link being provided to full text of judgment. With each judgment, there are few points mentioned about when that judgment can be used by a person. HMA 24 judgments have been used in few places, only to explain general principles of maintenance when I could not find anything better under CrPC 125 or DV Act judgments.
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If the facts of the case match your case, then rely on that judgment
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If you can find a higher court's judgment similar to your case, prefer that than a lower court's judgment
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Specifically for DV cases, Chapter 15 covers very important judgments which prescribe the appropriate procedure to follow before any question of maintenance or any interim relief under DV Act can be taken up by court. You must insist with your lawyer to impress upon the court that these procedures be followed without fail.
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If you are unable to find any judgment which matches your case, then it means you have to fall back upon the basic principles discussed in this book so far, to try to deny or reduce wife's maintenance. If you are successful, you may be the person who creates that precedent which others after you will cite and follow.
Note: for some of judgments, only link to news story is given, because as yet no one has been able to find the full text of the judgment. If you want a particular judgment text desperately, then probably the best source will be an advocate who has subscription to a judgments database or to the bar council library. As and when I find full text of an important judgment, I will update the eBook and inform the readers so they can download the new version. Also, readers are welcome to email me any judgment they would like to see in the updated versions of the book by using the Contact form on Men Rights India.
Also sometimes people ask for citation of a judgment. I have given the information from public sites, where sometimes citation is part of judgment text, and sometimes it is not. If the citation is not there, you can ask your advocate to find it for you. Ultimately, if we are paying lawyers for the work they are supposed to do, then it is our responsibility to make them do it too.
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