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N.Balasubramanian (General Manager)     17 April 2015

Legal opinion

Legal opinion sought.

In a DV case the wife has obtained an order for maintenance in her favor in the final verdict. The aggrieved husband has gone in for an appeal in Sessions court under section 29 of the act within the stipulated period and the same has been admitted. He has also filed  petition  for stay of MM court’s order. A notice had been issued to the wife from Sessions court. She had made her appearance and filed a counter. Sessions court has called for case records from lower court and the same is awaited since more than 4months. In this scenario the wife has recently filed a petition against her husband in lower court for disobedience of MM court orders, contempt of court orders and to attach husband’s salary and recover her dues. A notice has been served on the husband.

When the matter is under consideration in sessions court and it has called for lower court’s records whether the MM court is empowered to proceed with execution proceedings against husband? Does   the act of MM court  in delaying the sending of its records to higher court by more than 4 months not amount to disobedience of higher court’s orders?



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 4 Replies

SAINATH DEVALLA (LEGAL CONSULTANT)     17 April 2015

When the matter is in the sessions court how can the wife file a petition in the lower court,courts  of MM are the second lowest level of  criminal court structure .

Advocate Ravinder (Advocate/Attorney)     17 April 2015

When the matter is under consideration in sessions court, wife cannot file petition before MM court. The MM court may not be aware of the appeal before sessions court.  It is the duty of the Superintendent of the MM Court to check up whether there is any appeal is pending against the order of MM court.  If there is any mistake on part of the court, the husband can file a memo before the MM Court stating the fact.  All the EP proceedings will be stopped. 

 

Relating to the delay in sending records, it is normal delay in India. Or the petitioner may have managed the staff to misplace the bundle somewhere. The husband has to follow up the case and have to complaint regarding this to the MM court.

T. Kalaiselvan, Advocate (Advocate)     24 April 2015

Until and unless there is a stay on the further proceedings till the pending appeal is disposed, there is no legal infirmity in the MM court entertaining an application from the decree holder for execution of its order enforcing the maintenance award. Has the records of lower court been transferred within this time?

Adv. Chandrasekhar (Advocate)     25 April 2015

Till the Sessions court passes an order staying the execution of impugned order, Judgment Holder, i.e., wife has got a right to file execution proceedings.  For husband, even at this stage, there is a way, he can file an application seeking the stay of the impugned order in the sessions court/appellate court.


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