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priyanka   29 August 2015

Latest judgement on dv for no further stay and run the case

respected sir,i filed DV case in lower court  against my husband 3  months back.He obtain stay at high court on all proceedings including  personal appearance to the court.Somebody told  that there should not be stay on DV cases.Is there any citation of judgements in this matter?.if so shall i vacate the stay in high court with those judgements.please help me in this matter. 



 14 Replies

Samir N (2HelpU) (Business)     29 August 2015

To vacate stay of HC you have to go to the Supreme Court. There must be a valid reason for the HC to put a stay on the proceedings. Now, why would you take all this trouble in a DV case? By filing a DV case, you have put an end to your marriage, more or less. If you are in a legally married situation, there is absolutely nothing that you can get in a DV case that you cannot get in a purely civil proceeding in a Family Court. 


In short, consider it a blessing in disguise that there is a stay on the DV case. If you lose the DV case, it may act as a res judicata/estoppel in all civil proceedings, with respect to the factual findings on the same issue. At the minimum, it will influence your civil proceedings to your detriment. 


Only advocates win in a DV case. So, be happy that you there is a stay on the DV case. This will also put a stay on your advocate's bills.  One more reason to be happy!

vishnu (EE)     30 August 2015

Mrs. Priyanka,

Please note that you can file revision petition in HC itself to reconsider the verdict. This is your right. It appears that there are good reasons for you to win the case. The proceedings in the Family court are of different nature. There are plenty of cases under DV where the applicant has been favored by the courts.

In case of further clarification I can be contacted on vsw94122@yahoo.com.

Vishnu

 

hema (law officer)     30 August 2015

My dear Priyanka, before answering to your legal query, Let me take to task this bl**dy Samir bla...bla.  He is not advocate.  He might have contested only one case against his wife.  But now he becomes preacher and discourages women, in the garb of helping them.  He has one night stand and starts to write Kamasutra.  A laughing stock.  He does not know abc of law.  What he is saying is that in your domestic violence case, HC granted stay and so your marriage is saved and you cannot even file civil cases because res judicata operates and now you need not pay any advocate's fee and your money is saved.  By H.C. stay your marriage is also saved and your legal bills are also saved.  So, HC has not given any relief to your husband but instead of that it has given you relief.  Can any sane person talks like this?  He further says that Domestic Violence case cannot provide any extra relief which other laws can provide, you should file civil cases instead of domestic violence case, as if DV is a purely criminal case.  He says that by filing DV case advocates are enriched as if the advocates will do civil cases free of cost?  Can you see any other dopey than he on this forum?  Advanced countries have strict laws that a person properly qualified shall not render professional jobs - like medicine, law, chartered accountancy, para-medical and para-legal jobs.  But, here in India, people are taken for riding by these sham legal consultants.  Leave them to canvass their false agenda.  They do not deserve our attention any more.

NOW I COME TO YOUR LEGAL QUESTIONS:

The hon'ble H.C. must have granted the stay against DV proceedings under Section 482 cr.p.c. at the time of issuing notice and so you or your advocate could not get opportunity to contest his stay application.  Now, the remedy lies in the hon'ble H.C. itself while filing the counter, you should also file application for vacation of stay. The hon'ble S.C. in Shalu Ojha case clearly held that any order passed by Magistrate in DV case, the appeal lies u/s. 29 of DV Act before Addl. Sessions Judge and not H.C. in inherent jurisdiction u/s. 482 cr.p.c.   I am attaching the Supreme Court judgment of last year on DV case, which also at length says that how women are deprived of their legitimate rights available in DV Act by recalcitrant appellate courts.  Unless we know in clear terms, what are reliefs you sought in DV case and what are the grounds your husband has taken before H.C. seeking the stay of the proceedings in trial court, a definite answer cannot be given, how you have to convince the hon'ble H.C. in lifting away the stay order it passed against you.  Even if after hearing you for vacating the stay order, still the hon'ble HC continues the stay, the remedial action, then only lies to appeal to S.C.

Regards.

File of Shalu Ojha attached.

 


Attached File : 85694 20150830123051 342505251 shalu ojha vs.doc downloaded: 63 times

Samir N (2HelpU) (Business)     30 August 2015

Whether your husband went to the Session Court first or not, is immaterial at this point. The HC has given a stay because it has, rightly or wrongly, asserted jurisdiction. Once it has asserted jurisdiction, even in the absence of one, the only court that can modify or vacate the stay granted by the High Court, is the Supreme Court. There are exceptions such as clerical error or clarification of an order - Which is not the case here. You are seeking an entire reversal of an order.   


This is a forum where advocates and non-advocates express their opinions freely and at times disagree with other posts. Some may be right and some may be wrong. Usually in the Family Section of this site, non-advocates appear to be more well-versed in the applicable law. It is for the reader to analyze the different responses. I am not going to waste my time and respond to abusive and irrelevant statements. 

SAINATH DEVALLA (LEGAL CONSULTANT)     30 August 2015

Supporting the suggestions of Adv.Hema,I wish to advice Mr.Sameer that non legal members are permitted to express their views but cannot give legal suggestions.I have been time and again advicing the non legal members not to poke their nose in legal matters.If anything happens adversely are U going to take up the responsibility.U may have faced a case with UR wife in the court of law,but that does not graduate U to deliver legal suggestions.Nothing wrong if U present Ur case,or the hardships U faced in the court or with Ur wife.

Samir N (2HelpU) (Business)     30 August 2015

Adv. Devalla, are you trying to say that advocates will take responsibility for giving wrong advice on this site? If so, half the advocates participating in the Family section of this site should be disbarred for their abysmal lack of legal expertise and the idiotic advice they offer. The Family Section of LCI is primarily driven by non-advocates who add significant value to this site through their self-learned legal expertise enriched by their high education/qualification, experience and in most cases, a much higher IQ and a better comprehension of applicable law. I do not want to put advocates, in general, down. There are many good advocates on LCI and even in the Family section. There are also many non-advocates who make rich contributions to this site. Let those who want to contribute do so freely. There is no restriction on LCI to be an advocate to participate or express an opinion. As long as someone is not falsely claiming to be an advocate, he is perfectly within his rights to express his opinion and give legal suggestions. To cast personal aspersions itself shows immaturity and a good advocate will never do so. I have never seen good advocates on this site get into such controversies or call participants "bl**dy." They stick to the issues raised. Merely accumulating points on LCI is not a sign of a good advocate, it is merely a sign of prolific participation.  

1 Like

SAINATH DEVALLA (LEGAL CONSULTANT)     31 August 2015

No reply to arrogant contributors.Its left to their mindset and wisdom for the words they have used.The querist is welcome to seek any advice.

stanley (Freedom)     31 August 2015

HEMA is a sample specimen to this  profession . when she uses the words

1. " Bloody "

 

2. " one night stand "

 

3. Kamasutra " 

 

Again her  replies are " advanced countries have stricker laws" so it seems she wants to change the law in india  which she is not capable of and hence tears are flowing down herr cheeks anybody having a handkerchief may hand it over to her to clean her tears , even though i have not seen her i can state with confidence that her blood pressure has gone up and she should go and check the same with a doctor and take medication as prescribed by him lest she suffer a heart attack  .I presume she has to migrate to the advanced countries and practice law over ther :-)  and with the type of language she uses i dont think she would be accepted as a matter of fact she would be debarred from practising .

 

A year back Mr Tajobs india had sent his chaddi to her in response to her reply :-) 

 

Its for all to see the sort  of upbringing she has had !! Phew .

 

And here Sainath Devalla supports her  !!

SAINATH DEVALLA (LEGAL CONSULTANT)     31 August 2015

Hemaji,

U should not have gone beyond UR limits initially shooting UR arrow  directly at Sameer and the language U have used is objectionable.I think I missed that word"bl**dy".I think I have not come across U in the forum. I supported only UR lattter part of UR initial reply reply.

stanley (Freedom)     31 August 2015

 Hema is on this forum from 2010 and the language she uses can be seen from the history of the post she replies .:-) if browsed from her profile . 

SAINATH DEVALLA (LEGAL CONSULTANT)     31 August 2015

Whatever it is proper discipline is not maintained in the forum.Actually the original query has been deviated and the ultimate sufferer is the querist.As an advocate I have a standing of 35 yrs and am a senior citizen.I have mentioned umpteen times this is not a forum for discussions or debates between the members.If we know something about law nothing wrong in participating,but we have to be careful in advicing the querist.Any wrong suggestion will ruin the case of the querist.

Samir N (2HelpU) (Business)     31 August 2015

Gentlemen, thanks for your intervention and for not encouraging the use of foul and inappropriate language in the forum. .


I have a lot of respect for some of the advocates in this forum but there is absolutely no need to criticize someone's legal opinion simply because he/she is not an advocate. If there has to be a disagreement or even criticism, it has to be on point on the issue and must be backed by some form of authoritative and relevant citation.  Law is a vast field. Even the best advocates will not be able to master all the fields. The advantage that most non-advocates have in offering advice in the Family section is that we have to deal with only Family and related laws and have a lot of time and inclination to do so, driven by necessity in our personal cases - We have a lot on the line, not mere fees. We, therefore, often have more knowledge IN THIS SPECIFIC FIELD ONLY compared to advocates. That does not make us better than qualified advocates because we have little knowledge in other areas of law which advocates have to deal with given the diversity of their clients. 


 
 

Sachin Agarwal (Learner in Law)     31 August 2015

People may differ in their opinion on legal matters. Law is not perfect science.  Even courts deliver divergently opposite judgements in similar situation.  So each one on the forum may express his / her opinion.  But use of foul language shows frustration and inability to accept counter opinion.

We must not forget that NO OPINION IS ULTIMATE and finally a person in legal battle will have to face consequenses on his / her own.  Let all of us condemn use of foul language and personal attacks. 

Mukesh sharma (job )     10 December 2015

 i agree with some of opninon is this  matter like language use plz check your language before you post your quary and everyone free to give opninon if he know best thanks 


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