1 Answer
Dear Client, your query is both legally astute and strategically important. The short answer is yes the testamentary petition filed by your husband before the Bombay High Court can and should be used to your advantage in the family court maintenance proceedings, though the mechanism requires careful handling.
The use of a testamentary petition to establish an individual's financial capacity is supported by your husband's own petition filed in the Bombay High Court in respect of your late father-in-law's Will, which must contain disclosures about your deceased father's estate and his assets and property interests. Courts hearing maintenance matters under Section 24 and 25 of the Hindu Marriage Act, 1955 and Section 20 of the Hindu Adoption and Maintenance Act, 1956 (particularly relevant for your specially-abled son) consistently hold that the financial capacity of the husband must be assessed broadly and cannot be artificially restricted to what he voluntarily discloses.You need to submit a request with the Family Court located at Bandra for an order that your husband discloses to you every case currently filed against him in all of the other courts, including the testamentary petition filed with the Bombay High Court. You can also separately submit a request file asking him to produce documents from the testamentary petition so that they can be used as evidence per order XI of the Code of Civil Procedure, which provides for the discovery and inspection of documents. Courts regularly allow this where the documents are relevant to assess a party's financial position.
On your specially-abled adult son, this is a powerful and independent ground for enhanced maintenance. Under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956, a Hindu is obligated to maintain his or her major children who are unable to maintain themselves due to physical or mental disability. This is a separate obligation from the divorce process and, thus, cannot be eliminated. Prepare a separate child support application addressing the child's need for care, any associated costs (e.g., medical bills, therapy, etc.), and a request for a separate maintenance award to cover these costs. You will also need to provide a medical certificate indicating the nature and extent of your child's disability (if applicable).
On enforcing the existing maintenance order, your husband's deliberate non-compliance except under enforcement pressure is contemptuous conduct. File an application under Section 28A of the Hindu Marriage Act for execution of the arrears as a decree for money, and simultaneously file a contempt application before the Family Court for wilful non-compliance with a court order. Courts take a serious view when a husband deliberately defies an interim maintenance order while simultaneously seeking adjournments this conduct, if properly placed before the court, can result in attachment of his bank accounts and property.
I hope this helps, and if you have any further issues, do not hesitate to contact us.