Raja_498a Victim (Manager) 18 October 2013

Dvc interim maintenance - appeal

Hi All,

My DVC case is as below. My Wife filed 498a in April 2012 followed by DVC in Sep 2012.

498a Chargesheet has been filed and trial will start in November. There is nothing in the chargesheet and it is cut and paste of FIR.
Chargesheet says no injuries were reported and police didn't even made any inquiry.

Same has been cut and paste in DVC.

Update on my DV interim maintenance as below.

I saw MM Judge passed interim order 8,000 per month without my knowledge in Oct 2012.

It has been mentioned that respondant didn't file counter and hence passing order.

This happened Oct 2012.

I never got any such order or summons.

I got Summons to attend court on Aug 12, 2013. I appointed lawyer immediately and got certified copy.

Both myself and my lawyer saw that IO has been passed.

Since order passed in Oct 2012, I was asked to pay arrears by opposite lawyer. My lawyer told Judge that we will appeal in high court.
Judge gave next date as this month end.

She is working and getting 40,000 per month and I have 3 yrs of 26AS and payslip and she is getting HRA.
Till today she is working. We have no kids. She didn't stay even 8 months in matrimonial home. She herself left and filed 498a and DVC.

Last month, I went to high court for an appeal on Interim maintenance of DVC, which is 8,000 per month.

Today, I got copy of High Court Order.

Order is as below.

1) The DVC proceedings were initiated in the year 2012 and the impugned order came to be passed in the month of October 2012 and the petitioner received summons only in the month of August, 2013. Hence the present petitioner seeking quashing of the impugned order.

2) Since the impugned order is an ex parte order, passed witout hearing the petitioner herein, it is always open for him to take steps before the trial court by filing an appropriate application questioning the relief granted under section 23 of the act.

3) With the above observation, the criminal petition is disposed of. There shall be no order as to costs.

My lawyer is telling, new application will be submitted with all proofs in trial court by using above order from High court.

My questions are.

1) If new application is to be submitted now, initially I was told, appeal is mandatory, If any ex-parte is ordered.
Is it mandatory to go to next court for appeal, in case of ex-parte or same can be questioned in trial itself without getting any
order from next court?

2) How to proceed now? Any suggestions?

3) What are the chances now for me that trial court considers my application on IO.

4) Any chances that IO gets dismissed. My hearing of DVC is in the last week of October

5) What will happen on next hearing ? Just application or any arguments take place?

6) If trial court passed again any IO like 4,000 per month, can it be appealed again, reason is she is getting 40,000 and HRA till today

Just I want to know how the merits of my case...Please advise.

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7 Replies

(Guest)

Now matter will go back to magistrate court ie the trial court where that IO was passed, now you file your objections there to her main petition. The wife can either present a fresh application for IA or ask the magistrate to consider the previous application for IO only, either of which you have to submit your reply/objections with proof of her earning. And magistrate has to hear both sides of the story and pass appropriate order. Good luck.

Raja_498a Victim (Manager) 18 October 2013

Thanks Helping hand.

Can u answer below one.

If new application is to be submitted now, initially I was told, appeal is mandatory, If any ex-parte is ordered.
Is it mandatory to go to next court for appeal, in case of ex-parte or same can be questioned in trial itself without getting any
order from next court?

(Guest)

Originally posted by : Raja_498a Victim
	Thanks Helping hand. Can u answer below one. If new application is to be submitted now, initially I was told, appeal is mandatory, If any ex-parte is ordered. Is it mandatory to go to next court for appeal, in case of ex-parte or same can be questioned in trial itself without getting any order from next court?

Now only final order can be passed. Its not a circus show that again magistrate will order something without looking at the facts n figures provided. If he does such a mistake too one more time, and passes a one sided final order based on your wife's old IA application or gives her a chance to file a new application, then such final order on maintenance awarded can definitely be questioned in sessions court in a final appeal asking the sessions court to look into the matter and dispose off the matter according to law. And for your information, the magistrate court cannot order some maintenance if no domestic violence has taken place, even if he does order in his final order, such order wont stand good in the eyes of law. Such order will be set aside and eventually dismissed when you approach the sessions court. I hope you have not committed any act of domestic violence. Good luck.

Raja_498a Victim (Manager) 19 October 2013

Thanks Helping Hand for your inputs.

Here is the update.

I am able to get her latest 26AS till Sep 2013 (Sep month salary on 30 Sep).

As of today, she got Hike in her salary and she is getting 45K (From 40K to 45K).

She got arrears in her salary and showing 1 Lakh as total income in Sep 2013 alone.

My hearing is on this month end. Hope this helps me a lot.

This example shows how stupid MM Judge is. He is biased and without listening to me he passed IO
and I had to go to appeal in High court and ends wasting time and money.

Anyway, this is what my update is.

(Guest)

Dear Querist:

Originally posted by : Raja_498a Victim

Thanks Helping Hand for your inputs.

Here is the update.

I am able to get her latest 26AS till Sep 2013 (Sep month salary on 30 Sep).

As of today, she got Hike in her salary and she is getting 45K (From 40K to 45K).

She got arrears in her salary and showing 1 Lakh as total income in Sep 2013 alone.

My hearing is on this month end. Hope this helps me a lot.

This example shows how stupid MM Judge is.

The judge is not stupid nor is he biased what may seem to onlookers. But the law itself is like that, no matter what first woman should be helped for that they have made one wonderful law under section 23 to pass exparte orders, whatever it might be, anything the wife will ask under section 23 of DV act, the magistrate will allow without hearing your part of the story, even if you provide evidence too.. Now that period is over, but having income details also need not make you happy, the magistrate though according to law has to pass an order after looking at both sides of the story, am sure he will again favor the woman by passing a one sided order. Now what does it mean by one sided order, even after hearing both sides of the story, if the magistarte passes such an order still favoring the woman and not you will amount to one sided order. But here too you need not worry, after final order has been passed, you can approach Sessions Court and ask for dismissal of such order in toto.

He is biased and without listening to me he passed IO
and I had to go to appeal in High court and ends wasting time and money.

Anyway, this is what my update is.

Do not take too mch of this on yourself, am sure you will come out of this headache once and for all.

Good luck.

Raja_498a Victim (Manager) 20 October 2013

Thanks for inputs.

Raja_498a Victim (Manager) 25 October 2013

Hi All,

I Just want to update on my DVC case today in trial court.

As per HC directions, MM Judge set aside ex-parte Interim maintenance which is 8,000 per month.
MM Judge agreed with HC directions that I have the right to question the relief granted under sec 23.

With HC observations he set aside ex-parte orders.

He asked wife's lawyer that why still she needs interim maintenances and asked to provide

details by next date in November 2013.

Her lawyer is telling she used to work but now she is not getting any income.
Actually that is not true. She is getting 40,000 per month and 26AS confirms that. I have her 2011,2012 and 2013 26AS till October.
I need to see what they submit next date and I need to provide details to Judge by next date.