• Appeal under section 29

Sir,

Wife filed DV case against Husband and his Parents and she filed application dated [deleted] u/s. 23(2) of DV Act which was allowed by JMFC vide Order dated 16-1-2018 

Thereafter Husband filed application dated 15-2-2018 u/s. 25 of DV Act before same JMFC for modification / vacating ex party order dated [deleted] 

Wife filed Reply thereto and objected the application dated 15-2-2018 filed by Husband 

But JMFC passed Order dated [deleted] on application dated 15-2-2018 u/s. 25 filed by Husband and fixed the previous application dated [deleted] u/s. 23(2) filed by Wife for hearing on [deleted] and thus ex-party order dated [deleted] was put in danger of modification 

Being aggrieved by Order dated 15-3-2018 on application u/s. 25 of the DV Act, Wife filed Appeal before Session Court on [deleted] with application for interim Order to stay the further proceedings in JMFC

But Appeal was fixed for argument for admission after four days on 20-4-2018 

But in JMFC the date had already been scheduled on [deleted] and hence on [deleted], Wife informed JMFC about Appeal filed by her against Order dated 15-3-2018 and interim application for stay

But JMFC passed Order on [deleted] and vacated ex party Order dated 16-1-2018

 
therefore, in session Court on scheduled date on [deleted] Wife made argument and filed application in the aforesaid Appeal in Session Court for urgent Stay Order on order 15-3-2018 and restoring original position and consecutively quashing and staying Order dated 17-4-2018 passed by JMFC whereby the JMFC vacated ex-party Order dated [deleted] 

But Session Court refused to grant any stay on Order dated [deleted] and further rejected the Application by saying that the Order dated 17-4-2018 cannot be stayed because the Appeal is filed against Order dated 15-3-2018 and not against Order dated [deleted] 

But Wife’s contention is that she needs not to file any new Appeal against Order dated 17-4-2018 because the order dated 17-4-2018 is the outcome of Order dated 15-3-2018 against which she had already preferred appeal in Session Court and not only that but she had already made prayers in Interim Application dated 20-4-2018 for quashing and staying Order dated [deleted] 

Kindly advise 

HARIOM
Asked 4 years ago in Family Law
Religion: Hindu

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11 Answers

Sir the Wife needs to file an fresh appeal over the order dated 17/04/2018 challenging the Restoration order as court has rightly pointed out that said order was not challenged before the court and the court cannot travel beyond the scope of appeal. So if wife has to challenge such order now a new afresh appeal on the order dated 17/04 has to be filed before session and an interim stay has to be prayed pending the appeal.

Furthermore since the previous order was expartee and now since the opportunity is given to the Respondents it shall be treated in interest of justice to provide them chance to present there defence. So in my view it wont be fruitful to challenge said order instead if the wife is bonefide she can contest the main matter before trial court and can pray to expidite the same,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

hello,

the wife filed a DV case against the husband and his Parents and filed an application u/s. 23(2) of DV Act which was allowed by JMFC vide Order dated 16-1-2018.Thereafter the Husband filed application dated 15-2-2018 u/s. 25 of DV Act before same JMFC for modification / vacating ex-parte order. the Wife filed Reply thereto and objected to the application dated 15-2-2018 filed by the Husband. But the JMFC passed an Order on the application dated 15-2-2018 u/s.25 on 15/3/2018 filed by the Husband and fixed the date of the original application u/s. 23(2) filed by Wife for hearing on 17/4/2018.

Being aggrieved by Order dated 15-3-2018 on application u/s. 25 of the DV Act, the Wife filed Appeal before the Session Court with an application for interim Order to stay the further proceedings in JMFC but the Appeal was fixed for an argument for admission after four days on 20-4-2018, but in JMFC court, the date had already been scheduled before the date in session,17/4/2018, and hence, the wife informed the JMFC about Appeal filed by her against Order dated 15-3-2018 and interim application for stay, but the JMFC passed the Order and vacated ex parte Order dated 16-1-2018, therefore, in session Court on scheduled date on 20th, the Wife made the argument and filed an application in the aforesaid Appeal in Session Court for urgent Stay Order on order 15-3-2018 and restoring original position and consecutively quashing and staying Order dated 17-4-2018 passed by JMFC whereby the JMFC vacated ex-parte Order. But Session Court refused to grant any stay on Order and further rejected the Application by saying that the Order dated 17-4-2018 cannot stay because the Appeal is filed against Order dated 15-3-2018 and not against Order 17/4/2018.

But Wife’s contention is that she needs not to file any new Appeal against Order dated 17-4-2018 because the order dated 17-4-2018 is the outcome of Order dated 15-3-2018 against which she had already preferred appeal in Session Court and not only that but she had already made prayers in Interim Application dated 20-4-2018 for quashing and staying Order.

this is your case, as far as I can understand. I have written almost the same thing although more clearly. you had filed an appeal against the order dated 15/3/2018. in this order, the JMFC had only set a date after hearing the objection application( and the subsequent reply). therefore, this order was the one against which you went in appeal.

that means you went in appeal against "whether hearing on the ex-parte order and fixing of the date was legally sound or not."

This order has been decided in appeal and nothing else. After 17th you should have filed another appeal before the ASJ against the order dated 17th April as the appeal against the order dated 15/3 became infructuous on 20th April.

the appeal on the 20th April was infructuous.

your contention is wrong. under the challenge was the order of JMFC. the judge was obligated to hear that only.

therefore do the needful.

regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

Sessions court has rightly held that order dated 17/4 18 cannot be stayed as no appeal has been filed against said order

The contention of wife that no appeal needs to be filed against said order is misconceived and unsustainable

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Wife's contention is absolutely erroneous. She had challenged the order dated 15.3.2018 passed by JMFC through which the JMFC had issued notice on the application filed by husband to set aside the ex parte order. Having regard to the fact that the Sessions Court had not granted stay on the order dated 15.3.2018 coupled with the fact that during the pendency of the appeal the JMFC had vide his order dated 17.4.2018 set aside the ex parte order, the Sessions Court cannot set aside the order dated 17.4.2018 when this is not even the prayer of wife. The appeal has become infructuous. Wife has to file a fresh appeal against the order dated 17.4.2018.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

file police complaint under section 406 of IPc against husband if he has stolen wife stridhan

2) wife should seek alternative accommodation from husband as she has not been allowed to stay in shared household

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. In the appeal the wife can refer the acts done by husband.

2. In the trial court also she can inform the magistrate by filing an application.

3. However the consideration of such fact would be given during trial only when both party would tender their respective evidences.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

hello,

ok, file an appeal against the order of the JMFC. the wife should file a maintenance application along with an application u/s 27 for recovery of streedhan.

regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

Wife can file a complaint under 406 ipc to get her stridhan as it is property of the wife and it is admittedly with husband so an FIR under 406 shall help the wife to the extent of getting the stridhan

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Technically and legally the husband has done no wrong. He cannot be faulted on that ground as simpliciter filing a appeal without obtaining a stay does not bar the lower court from proceeding with the matter. Sessions court was also right in holding that they cannot pass stay orders on any order which was not under challenge. It is also required to be understood that ex-parte orders are always liable to be heard on merits, they cannot continue till the end of the case. And as such no prejudice is also caused to the wife as she has been awarded rent. As the Lower Court vacated the stay, the situation returned to the original status quo and therefore the husband has rights to break locks. As far as the stridhan is concerned, you yourself have mentioned that it is an admitted and undisputed position that he same is with the husband so nothing to worry for the wife.

All this apart, what the husband has done is wrong and the same makes a good case for obtaining a Divorce on the ground of cruelty.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

the wife has to obey the court order and if aggrieved, has to prefer an appeal against the aggrieved judgment.

She can file a petition seeking recovery of stridhan articles under section 27 HMA

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

1. Appeal can be filed with a plea to condone the delay. The delay of 3-4 days is ordinarily condoned.

2. The remedy for wife is to seek coercive measures against husband under Section 31 of DV Act.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

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