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Ashwini Sharma (Manager)     15 October 2014

Section 9 query

Dear Lawyesrs, Myself Ashwini.

I have a DV act- section 12 case registered in MM court Karkardooma. The case was filed three years back. My wife has filed his case on false grounds and there is no evidence or proofs provided for Domestic Violence.

There has been an interim maintenance order passed recently which I wanted to challenge because of higher amount of maintenance. In the order court has accepted that my Salary is 65k to 70k per month, and my wife is not liable for maintenance as she is well qualified and she was working earlier earning 40k p.m even though she is not working now.

I have a 5 Yr. old daughter and court has mentioned that I should pay 10000 per month for residence and 15000 per month for maintaining the child. My parents are senior citizens and are fully dependent on me. I have loan against my Sister's marriage and for study.

The arrears now for 36 months since the filing of the case are accumulating to 9 lakhs of rupees. Taking into consideration loan and other liabilities, I was unable to save more than 10 k per month and I do not have this amount to pay in three months.

I think the decision was made because my counsel did not appear in two sessions and neither contested the case very well and I think Judge was in the view than we are trying to prolong the case unnecessarily.

My counsel only argued on the point that the case should be dismissed because it is filed after 1 Year from Separation of the wife. I think the order is impugned.

In this forum I have been advised to submit an appeal in sessions court.

My questions are:

If I file an appeal, will I be asked to submit any partial arrear amount?

Also I wanted to know if I never forced my wife to leave at this point can we file section 9 or will it have any negative affect on my case?



 5 Replies

Adv. Chandrasekhar (Advocate)     15 October 2014

I am sorry, I am quoting a supreme court latest judgment, which goes against your attempt.  On Sept.18th this year S.C. in "Shalu Ojha Vs. Prasant Ojha" domestic violence case, prima facie held that the Additional Sessions Judge, the appellate authority does not appear to have the powers to grant stay against interim maintenance orders.  The S.C. held that the High Court under Section 482 can take up such matters but cautioned High Courts to be slow in granting any stay against maintenance orders, because the respondent may be leading indigent life.  If this case comes into the view of the appellate court while deciding your appeal, you face difficulties.  It may also be noted that the S.C. has not decided the matter of right to grant stay conclusively but reserved to decide this issue in some other matter as and when that comes before it.  I gave this information only to put you in latest position and in no way to discourage you in your efforts.

rebellion (fighting against bias law)     15 October 2014

There are some judgments where if there is significant delay(eg. > 1yr) in DV decision then maintenance is applicable from the date of court’s order or with one year arrear not from the date of application. You need to find this, I read sometime ago but not able to find judgment.


9 lacs is too much arrears.

Your appeal might get rejected owing to economic abuse. i.e. you not paid any money to wife and kid. So your appeal might get dismissed. What I suggest here is.

1.  Bring her and kid back, make separate accomodation for wife and kid.  You will not have to pay arrears of maintenance awarded.

2.  Even if you dont want to pay arrears/not able to pay arrears/not want to bring her and the kid back, you can buy sometime until sessions appeal gets decided.  IF appeal is in your favor, well and good.  If appeal gets dismissed, you can buy some more time by approaching High court for readjudication of maintenance awarded.  In High Court, you will have to pay half of the arrears for court to proceed with trial of appeal.  However, you need not make partial payment of arrears of maintenance righaway in sessions court, but you may have to clear off arrears in order to get favorable orders from sessions depending on what the judge says.

3.  Eitherways, if you want to play around for some time to teach faithful wife a lesson, you can go for appeal till HC or you bring her back when the appeal in sessions gets dismissed.  Like that you can teach her a lesson for filing DV case against you and also not give her money. and bring  back to separate accomodation on your terms and conditions.

4.  I differ with REBELLION advice, arrears to be paid from date of application, and not from date of order.

5.  You should change your lawyer rightaway.  Your lawyer appears to have messed up the case in entirity.  You should have submitted your expenditure statement too, along with income statement for magistrate to calculate maintenance.  You should have also shown to the magistrate her old bank statements, pay slips, filed RTI application to get details from employer [asking details of from when, how much salary etc].

6.  You should also have some morals.  If not for wife, you should have voluntarily contributed for well-being of your daughter which you have not.  This will also go against you.

All in all, its best that you bring her back on terms and conditions to a separate accomodation.  Or else be prepared to pay 9 lacs, or face arrest warrant, and subsequently NBW [nonbailable warrant] if you are absconding and do time in jail for non-payment of maintenance.

Good luck.

Ashwini Sharma (Manager)     18 October 2014

Hi Rebellion,

If there is a judgement that the maintenance is payable only after order is passed if the DV act is filed after 1 yr from separation, this should actually favor the reduction in arrears.


Helping Hand- I never refused to pay anything to wife but she has adopted this route through court. It is the court procedure which has taken time and not me paying. I do not have any back account number where I can pay Wife or her father any account. When my parents and I went to my In laws house, we were insulted and asked to leave and they said they do not need anything from me. Above all I have ailing parents dependent on me and I have to pay for their surgery going forward. Also I took loans against my education and sister's marriage and hence my savings were barely 5-10 K per month and I do not have any assets on my name.

I do not want to play around with the maintenance but the grounds on which the case is filed i.e. cruelty are false and no evidences have been placed on record. Wife has left the house herself with out any violence. There is no case filed against me in 498/ 498a or CAW/ FIR.

It is not only husband but wife who has equal responsibility towards child and I am ready to keen my wife and kid..but she never returns back because she is the only child and my in laws want her living with them. I have been asked by my in laws to live with them.

It is evident that my counsel has messed up the case..but all salary affidavits have been placed on records. I have not filed request with RTI to check on wife's past salary slips.

I also wanted to know if there is a way to prove a person is not mentally sound?

Adv.Vandana Vaidya (Advocate & Regd. Patent Attorney)     18 October 2014

You have a right to file a revision or an appeal against the MM Court order and if you prove your points, it is likely that the amount of maintenance granted could be reduced. About filing a restitution of conjugal rights petition under section 9 of the Hindu Marriage Act, it will be definitely termed as an afterthought, you should have done this much earlier. However, instead I would suggest you to file a custody petition first, which will give a chance to both of you to come on the same platform and decide the future. 

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