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Sahiba Khurana (Aggrieved person)     04 July 2014

Appeal against maintenance order in dv act

In case of revision/appeal against the maintenance order in domestic violence act respondent/husband will go to sessions court as per section 29 dv act?Is there a possibility of getting ex-party stay on order of MM without paying any money to the wife? Can wife appear before sessions court without any notice/summons as its the first date? Will the order of notice under execution petition help restricting the stay?

Kindly assist and help with your expert advice.



Learning

 9 Replies


(Guest)

29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later. tc "29. Appeal.—There shall lie an appeal to the Court of Session within thirty days from the date on which the order made by the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later."

 

Thirty days time limit to go for appeal, once you go for appeal notice will be served to your wife, she has to appear, failing which one sided order will be passed, after giving due time considerations [anywhere between 10 to 30 days].  But if she appears in court, court will look into facts of case and pass stay orders if you have asked for depending on merits of case.  Mostly you will get stay, that done, matter will again be thrown back to magistrate for full trial.  

Execution orders will depend on whether you approached appelate court or not.  If you sit idle, warrant issued, NBW issue, and so on.  IF NBW issued, then no bail, and you are at mercy of magistrate will and wish to getting bail.

Give more details of case in order to get better reply.

Sahiba Khurana (Aggrieved person)     06 July 2014

Dear expert, 

thank you so much for your promt reply.

details of the case are as under.

wife and one minor child got maintenance under dv act after around 15 months of filing the petition and after submission of all the income affidavits, itrs, bank statements, cc statements, assets summary plus the written arguments from both sides. now after the order of mm for maintenance the husband if goes for appeal will cause more suffering to wife as already she had to manage with a small child of 14 months as husband deserted when she was pregnant for 5months. 

question: 1. In case of appeal by husband, can he get ex party stay on the order and paying nothing to wife and thechild? is there any rule of clearing the arrears and then stay on order?

question 2: wife has filed for the execution of the order in the mmcourt but got date for 2 months that was already fixed up in the matter. will that execution petition would be of any use or help during the appeal of husband in sessions court?

question 3: can wife appear before the sessions court on the first date of appeal in case she comes to know about the date? 

T. Kalaiselvan, Advocate (Advocate)     06 July 2014

question: 1. In case of appeal by husband, can he get ex party stay on the order and paying nothing to wife and thechild? is there any rule of clearing the arrears and then stay on order?

By merely filing an appeal, the court will not grant an exparte order, it will send notice to the respondent, hear the respondent and then if there is a justification, the court may grant an interim stay on the execution of  DV maintenance proceeding and the appellate court may order for payment of entire or part of the arrears as a condition to grant such an injunction.

 

question 2: wife has filed for the execution of the order in the mmcourt but got date for 2 months that was already fixed up in the matter. will that execution petition would be of any use or help during the appeal of husband in sessions court?

the application for execution of MM's maintenance order has got nothing to do with pending appeal before the appellate court until there is an order of stay against its proceedings.

 

question 3: can wife appear before the sessions court on the first date of appeal in case she comes to know about the date?

Generally, the respondent cannot appear before the court proper service of  summon, contact your lawyer to decide about it under the circumstance of the prevailing atmosphere.

Sahiba Khurana (Aggrieved person)     08 July 2014

Thank You so much all the experts for valuable information shared.

Today the appeal was listed by the appellant/husband and we appeared without the notice. We tried to show the ladyship that this appeal is not maintainable till the time the appellant/husband deposits the entire arrears. Though the hon'ble ladyship did not allow the stay petition but allowed the appeal without any order of arrears and put the date around 25 days before fixed date of MM Court.

We filed following judgments today but the judge did not cite them in order nor got convinced with them.

1. Rajeev Preenja Vs sarika Crl M C No 1859/2008 decided on 26.02.2009

2. Kuku Ram Vs Ram Beti Crl M C No 3562/2009 decided on 9.11.11

3. Nitin Gupta Vs Ruchika Gupta Crl M C No 3240/2009 decided on 27.04.2012

Question: Although the judgments mentioned are very clear on this point that no appeal should not entertained by the appellate court until the appellant/husband deposits the entire amount of arrears. still the judge did not cite the judgments in the order and did not give any relief to the wife and the minor son. It is ordered to the wife to give the reply of the appeal and further listed for arguments almost after a month. Is it advisable to go to high court against this order as even the date of execution is far? Or is there any other remedy for getting the relief granted as the wife fears that husband would sell off the properties and flee in the garb of such petitions.

Adv. Chandrasekhar (Advocate)     09 July 2014

You did what you could.  What I suggest you is to prepare reply to appeal well in advance (within three to four days) and serve an advance copy on the opposite counsel with acknowledgment and file original in court.  By doing so, the opposite party cannot evade to argue the matter on the next date.  If you give your reply to opposite party only on the next date in court, he will simply say that he will go through and come back with arguments on the next date.  cases prolong in this way.  Also, vigorously follow up the execution petition also.  If for any reason, you apprehend that arguments will be adjourned even on the next date, arm with application seeking the court to direct appellant to hand over at least half of the maintenance amount as the survival became a big question for you.  

Samir N (General Queries) (Business)     09 July 2014

Just some general opinion:  Submission of a Judgment does not necessarily mean that it will be accepted by the Court . Perhaps your husband argued that the facts of your case are different or that there was a gross error of fact or law of the lower court which means that the chances of him prevailing are high. This would suffice for the Judge to not order any payment from your husband. Also, a case from another state may not be looked favorably by a Court in a different state. There are many other reasons why a judgment may not be accepted by a Court.


"Without any Order of arrears" means that there has been no order on arrears, in your favor or otherwise. Therefore you cannot go to the High Court as there is no appealable Order to begin with. In Order for you to go to the High Court, you should file an application in this Sessions Court seeking payment of arrears, citing judgments that you think are relevant. You should file another companion application seeking urgent ruling on this Application. Let the Sessions Court reject both or at least the one seeking an urgent Order on payment of arrears. Or the Sessions Court may ignore both applications. That would make the rejected Order(s) appealable or even if there are no Orders, provide you a basis to go to the High Court. The exact procedure may be through a Writ Petition or a Revision Application or an actual Appeal or whatever... You need to consult a practicing advocate for details...


When you go to the High Court, you need to show that you have exhausted all remedies in the lower court. By following my suggestions, you would have done that to cover all procedural defenses from your husband.


I AM  NOT A  ADVOCATE, BY PROFESSION OR EDUCATION. I am commenting because I found the procedural situation and the associated comments interesting.

Prem Shrimali (Independent)     29 March 2015

Dear all the Respected experts,

Beow discussion For valuable information shared.

How can remove names of relative in Domestic Violance and How can fight against DV?

 

  

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     29 March 2015

This is not order and hence no appeal u/s 29.

 

You have to against the order of cognizance if time limit is there before Session court or u/s 482 before HC.

 

It is worth doing to avoid future problems which will be like cancer.

 

Show the complaint and we will tell you how to present the revision for striking out the other names.

Manohar Babu Pasupuleti   11 April 2016

written argunents format in criminal revision application against maintenance order

 

 

 


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