Wife'e Ex-parte order set aside cost of 5000 without arrears payment

585 votes

Hello, Setting aside an ex parte order at ₹5000 cost without clearing arrears is common, but the wife still has strong legal remedies available. 1. Arrears Recovery: Even after set aside, you can file an execution petition for the 14 months arrears under Section 125(3) CrPC or Section 28A of DV Act. The set aside order doesn't cancel past arrears. 2. Property Sold: Since husband sold property after filing recall to defeat maintenance, you can file an application under Section 125(3) CrPC for attachment of his salary/bank accounts. You can also challenge the sale as fraudulent transfer under Section 53 of Transfer of Property Act if done to defeat your claim. 3. Kurki/RC: Request the court to issue fresh RC against remaining assets or salary attachment. Also file application for interim maintenance during pending case under Section 125(1) CrPC. 4. Permanent Maintenance: Since it was already fixed, file for modification/enhancement if circumstances changed, but arrears remain payable. Since WS is now requested from husband, ensure you file a strong reply with all proof of his income and property details. Immediate action is needed to prevent further disposal of assets. For drafting execution petition, attachment applications, and strategy to recover arrears, detailed consultation is required. You may connect through LawRato. Regards, Advocate Shamma Perween

Advocate Shamma Perween LawRato

964 votes

Namaste mai Advocate Sudesh Kumar from Agra, High Court and Supreme Court baat kar raha hu Court dwara ex parte order set aside karne se aapka maintenance ka haq khatam nahi hua hai balki case ab open hai jahan husband ko apna jawab (WS) dene ka mauka mila hai Kyunki husband ne Kurki order/RC hone ke baad bhi properties bechi hain toh yeh seedhe taur par Court ki avmanana (Contempt) hai Hum court me turant application lagakar is illegal sale ko void ghoshit karne husband ke defense ko rukhwane aur aapke 14 months ke poore arrears recovery ki mang karenge. Saath hi case chalne tak aapke aur dono minor bachon ke liye fresh Interim Maintenance ki demand ki jayegi takni monthly kharcha chalu rahe is mamle me aage ki thos strategy banane ke liye aap jald se jald mujhse detailed legal consultation ke liye sampark karein.

Advocate Sudesh Kumar LawRato

960 votes

If the District Judge has set aside the ex parte order on payment of only ₹5,000 as costs without directing the husband to clear 14 months’ maintenance arrears, the wife still has several legal remedies. The order recalling the ex parte proceedings does not automatically wipe out the husband’s liability to pay maintenance already accrued. Arrears of maintenance remain a vested right and continue to be recoverable unless specifically modified or set aside by a competent court. Therefore, the wife should immediately file an application before the same court seeking a direction that the husband deposit the entire maintenance arrears or at least a substantial portion as a condition for proceeding with the case. She should also press for continuation of monthly maintenance during the pendency of the proceedings, as the recall of the ex parte order does not suspend the maintenance obligation. Since a recovery certificate (RC) and attachment (kurki) order had already been issued, the wife may request the executing court to continue execution for the arrears unless there is a specific stay order. If the husband sold his properties after filing the recall application to defeat recovery, the wife may bring this fact before the court and seek appropriate relief, including examination of the transfers and, where legally permissible, declaration that such transfers cannot defeat her maintenance claim. If the recall order is legally unsustainable because it ignored the rights of the wife and two minor children, she may challenge it before the appropriate higher court. The maintenance already fixed should be treated as enforceable for both monthly payments and accrued arrears until lawfully modified, and the husband cannot avoid liability merely because the ex parte order has been recalled.

Advocate Lalit Saxena LawRato