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satyabrata25   06 April 2022

Stay and appeal against divorce and permanent maintenance to wife

I have gone for appeal and stay in high court against the divorce and permanent maintenance of 30k per month to wife 

Not sure what is the implication of it . 

Want to know different stages of it in high court . 

Is it all written / documentary argument or I have to present in person.

What strategy wife will follow now to get money and divorce . 

Please provide your input .

 

 



Learning

 8 Replies

Palak batra   06 April 2022

Dear Querist,

 

Certain guidelines were laid by the Supreme Court in the case of Rajnesh vs neha on the issue of maintenance to wife. 

 

Basically, when it comes to wife she can claim maintenance under different acts and the husband is bound to pay the same. 

 

Sec.36 of the special marriage act talks about the claim pendente lite maintenance, which basically covers the aspect of her not being sufficiently independent and hence in such a case husband is bound to provide maintenance even if the case is not decided yet. Sec.37 on the other hand talks about permanent alimony, that is, the consolidated amount of money that is given by the husband to the wife towards her maintenance for life.

 

The wife will not get maintenance only if she has married again or adultery was proved or if she is financially independent. That is also important to be proved in the court of law by the husband.

 

Regards,

Palak

Supinder Singh   06 April 2022

Your wife does not need to follow any strategy "to get Money and Divorce" since the Family Court has already passed an order in her favour. Now, in the High Court, the Burden of Proof is on you to prove that the order granting for Divorce and Maintenance needs to be set aside.

If the High Court allows your 'Stay' application, then you won't need to pay the Maintenance until the 'Stay' subsists. Your appeal might be allowed if the Family Court faulted in applying the correct law or did not appreciate all the facts of your case, otherwise it might get dismissed. The High Court may even pass an order altering the Maintenance Amount.

The appeal proceedings in the High Court involve written as well as oral submissions. You will need to appear if the Court wants you to, but it is generally not required in the appeal cases.

 

Different Stages:

An appeal starts with the filing of a Memorandum of Appeal, containing the objections to the orginal decree. Then, the notice is issed to the other party and is allowed time for filing counter-objections. In your case, there will be consideration on the Stay Application also. So, the other party will file reply on that too. After this, there will be oral arguments and then the High Court will decide on whether to allow or dismiss your appeal.

satyabrata25   06 April 2022

Thanks Supinder and Palak.

Few facts of the case is my wife is working and earning [whatever she has shown in court is around 25k per month] .

She is highly qualified .  Length of the marriage is only 4 years . She deserted voluntarily. Cruelity is not established in lower court which is clearly mentioned in divorce decree by lower court , the divorce decree is given based on IRBM by lower court not on cruelity , 

In Oral arguments - Is it that both my lawyer and opposite party lawyer will argue or I have to be present in physical.

The reason is my working place is far away from high court so want to prepare myself a bit before case starts.

During the proceedings in high court what happens to the arears . Is t going to remain same or the amount will keep on increasing during all these time .

The catch now is that in lower court if the case is going on for 4-5 yrs the judges are ordering the maintainance from the date of filing the case where areaers are coming around 10 to 15 lacs which is huge . Its like some FD scheme by govt to all lethargic/ ill minded wifes.

Please guide 

Dr J C Vashista (Advocate)     07 April 2022

Even if "....wife is working and earning.." she is entitled and will have maintenance / alomony, there are number of judgment on the issue. 

Out of 4 years of marriage when did you separated to prove desertion as it is required to be 2 years at the time of presentation of divorce petition ?

What do you mean from the connotation "IRBM" used by you ?

It is better to be present at the time of final arguments with your lawyer.

Nothing can be presumed that whether the amount of maintenance shall remain same or modified on lower / higher quantum.
 

Your lawyer is the only person to satisy your queries who is an able, competent and intelligent enough besides the fact that s/he is well aware about facts of the case.

P. Venu (Advocate)     10 April 2022

It is too hasty to comment on a matter which is pending before the High Court in an Appeal. Yes, it is not necessary that the appellant be present physically unless the Court specifically directs.

satyabrata25   10 April 2022

Thanks Venu and Vashista. IRBM means irrecoverable break down of marriage. 498a is also running in lower court. Lets see if I can get some relief as a husband 😌. My life is runied because of false cases by wife. 

Parasar   16 April 2022

irbm is not a ground for divorce

Janak Raj Vatsa (Advocate) (Lawyer consultant)     09 June 2022

You may not be required unless ordered by court. The evidence will be based on supporting documents . The HC will adjudicate on your prayers following same stages of case as in sessions court


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