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Vishal Kumar (Asst. manager)     29 March 2014

Interim maintenance in dv & quash petition

Dear Experts,

 

My wife has filed false cases of 498a and DV on me and my family. 498a is on evidence stage whereas 2 weeks back in DV the court has granted her interim maintenance from the date of application (almost 1 yr now) of Rs. 12,500 p.m. i.e. 1/3 of my gross monthly salary.

 

Now,

1) Can I apply in the High court for quash of DV petition as I have a audio recording whereby she has confessed that she herself has left the house whereas in the petition she has mentioned that my parents forced her to leave the house. Therefore, we can prove that she has come with tainted hands.

 

2) Or should I apply for speedy trial under section 21 (b) in high court say for 2 months. As per the DV act the case must be disposed off within 60 days from the date of application.

 

3) Normally how much time does the HC takes to announce the order and by that time will the matter be stayed in the lower court or both will walk hand in hand.

 

Experts please guide.



Learning

 10 Replies

Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 )     29 March 2014

You can file appeal in the High Court producing your audio ev idence. caeses clearance depends upon the pending cases in the court

Vishal Kumar (Asst. manager)     29 March 2014

Thanks for the reply Mr. Ramacherry.

 

But will the audio evidence suffice the purpose. Please also reply should I go for speedy trial or quash. Also, can HC put the stay on Interim maintenance ordered by lower court till the final outcome of the DV case. If yes, then pls inform how will I have to draft my petition.

Samir N (General Queries) (Business)     31 March 2014

If she filed for maintenance almost one year back, why did you not present the evidence to the DV court during this one year?  You had plenty of opportunity to do so. Why did you wait until an adverse Order was passed? Now after sleeping for one year,  you think that you can go to the High Court and present the audio evidence and the High Court is going to say: "Case Dismissed! " At most the High Court will ask the lower Court to consider the evidence and you better have a reason to explain why you were sleeping all along.


Also, if all she is saying in the recording that she left on her own accord, that does not mean that you can get away with maintenance burden. Her advocate will argue that you and your parents made it impossible for her to stay with you indirectly forcing her out.  You cannot rely on one recording with an admission that the wife left on her own accord, to get an entire case like DV thrown out.


All your other questions sound like those of a law student who does not know the realities of the Indian court system. In any event, you can ask for a Stay in the High Court for the lower court proceedings to be put on hold pending the disposition of the appeal in the HC.


You need to be proactive in handling DV cases... File one application after the other... Make life miserable for the opposing advocate. If you have been sleeping on evidence and waking up only after an Order is passed, then start digging your grave right away because you will keep getting adverse Orders and you will be doomed!!! 

 

Vishal Kumar (Asst. manager)     31 March 2014

Samir,

 

She filed the DV case in May, 2013 and we received the first notice in January, 2014. We were asked to appoint a lawyer and come up with a reply to the DV petition. To which we did in Feb, 2014 (second appearance) and on the third date which was in the second week of march, the judge allowed the interim maintenance. Even, we are equally surprised to see the development of this case.

 

Now, my lawyer has informed that we should apply for the revision in session court but I think that will only reduce the IA by some thousand bucks.

 

So, I browsed on this forum and found that we can apply for stay on maintenance in HC and also for speedy trial. I know quash is not possible under Sec 482 as this is a civil case.

 

What application are you taking about that I need to file.  Please guide what should I do in this situation.

Samir N (General Queries) (Business)     31 March 2014

Check the prayers clause in the DV petition. If it did not have an express prayer for maintenance, then the magistrate committed an error of law in granting interim maintenance. The law is clear that interim relief can only be granted when there is a final relief of the same type asked in the prayer. Get some judgments to support this argument if indeed the facts support you. i do not have any at this time.


Did you explore the usual defenses? Did she file after one year had passed since she left your home? Is the house that you are living together owned or rented by you or your parents? Check definition of "shared household" and say that DV is not applicable. She can file for maintenance under some other law. EXPLORE ALL PROCEDURAL DEFENSES FIRST... HIGH COURT IS A GOOD PLACE TO GET SOPHISTICATED WITH LAW PROVIDED YOU SHOW HOW YOU WERE PREJUDICED BY THE LACK OF APPLICATION OF THE LAW BY THE MAGISTRATE.


What was the basis for determining the maintenance amount? There ought to be some justification for the amount. Just a random percentage of your income to be provided for maintenance is not sustainable in law. You have a good set of arguments if you were denied due process of law before an adverse order was passed against you. Is she qualified to maintain herself? Numerous arguments to deny her maintenance... surprised that the magistrate did not hear you out.


Flood her with applications... I do not have your facts to advise you properly on which application to file. For example, if she is/was working, file application to get her salary info and numerous other related applications like summoning her supervisor and HR person. File an application to summon bank officers of banks in which she has an account.  If she has asked for maintenance, you have the right to get all related info and that opens a big door to file application-after-application... You can also claim that you loaned money to her brother in cash and file an application to summon his financial info too... Be creative... Attack is the best defense.  Take the battle into their territory...  

Samir N (General Queries) (Business)     31 March 2014

MY ADVICE ASSUMES THAT SHE HAS NOT BEEN VICTIMIZED BY YOU OR YOUR PARENTS. THERE ARE THOSE 10% CASES WHERE WOMEN ARE GENUINELY HARASSED AND THE HUSBAND OR THE IN-LAWS ARE IN TOTAL DENIAL.  PLEASE TAKE A HARD REFLECTIVE VIEW OF YOUR CASE BEFORE YOU GO ON THE OFFENSIVE. SORRY, IF YOU FIND THIS MESSAGE OFFENSIVE AS I HAVE NO WAY TO KNOW.

Yadanand Legal help (maintenance divorce remarriage = yourscrew@gmail.com)     01 April 2014

You must appeal against the maintenance order undr DV act before sessions court immediately.

Vishal Kumar (Asst. manager)     01 April 2014

Thanks Samir !!

 

She filed the case within 1 yr of separation and she prayed for the maintenance. She never worked in the past as we got married as soon as she completed her B Ed and she is not even working right now. In our reply to DV case my lawyer asked me to reveal my actual salary as she has mentioned that I am earning Rs. 1 Lac p.m. coz if we did not then he will fix the maintenance on the basis of her claims.

 

We are the victims here. We didn't do anything wrong to her. She was driven by her parents and wanted to live separately with me and not with my parents but I had no choice as I was out of job for almost 4 months. The things went out of control and she left the home. For first two times I brought her back but the third time I didn't and now facing all these false cases.

 

I am planning to appeal in session court and in the meanwhile exploring the possibilities to apply in the HC for the stay on maintenance or speedy trial if possible.

 

Need direction from you all experts.

Samir N (General Queries) (Business)     01 April 2014

I am NOT an advocate so give weightage to my advice accordingly...


Maintenance is a complex subject which is often trivialized or generalized by advocates. Parameters for maintenance varies based upon the Act under which it is filed. DV by itself does not define the parameters to grant maintenance and  case-law on the subject appears to support the argument that it relies on other Acts for defining maintenance parameters. Under 125 Cr.P.C. the wife must not be able to support herself.  Your wife, as a B.Ed., ought to be able to support herself. Even under other applicable Acts, there are enough judgments in support of the argument that an able wife ought to support herself. At the minimum, your maintenance will be reduced accordingly, even if it is not denied all together.


I do not know why you are going to HC. Session Court should be able to give you all the relief that you need, including a stay. In fact, the HC may say the same... why are you not asking the Session Court first. 


Your position (in addition to ones I emphasized earlier) ought to be that you want your wife back and in the absence of any rational basis for her to stay away from you, she does not qualify for maintenance.  You should start that as the main argument and focus on the amount of maintenance as a fall back argument. Of course, she will say that you and your parents were treating her with cruelty and you will have to defend these allegations. Thats the core of your case.


Remember Einstein's  Principle... Keep it as simple as possible (but not simpler). So come up with a simple set of arguments (which do not miss the main points) before the appeal Court which are RELEVANT to your maintenance issue and do not ramble on issues which may be relevant to the broader DV case but not the maintenance appeal. This approach worked for me, should work for others. 

LEGAL-CIVIL CRIMINAL (SENIOR ADVUCATE. skjadvt@gmail.com)     13 April 2014

There are technical methods to appeal for DV cases .

 

She can support herself argument now days is not accepted by any court even SC. Yes if she is working than only it is valid.

 

No Quash now a days in any HIGH COURT, the same is dismissed at admission stage only.

 

Appeal at SESSION COURT is the proper advice and fight on legal issues.which are many.


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