Sir my DV case final order came on August 2019.Till then we were paying maintenance @ 40 ,000(20k for wife and 20k for kid) .Wife is employed as Consultant and me too doctor working abroad.She has around 1,25lacs and me 3 lacs.The fact that I hav expense too in that manner fell upon deaf ears.Now final order against us .Maintenance hiked to 75k ( her maintenance enhanced to 35k kids to 25k Rental allowance if 15k)and compensation of 5 lacs .Now increased maintenance was asked to pay with retrospective effect from 2017 in final order making arrears of 17,5 lacs all of a sudden.We approached Sessions court ,case got admitted but interim stay was refused since the judge decided to deal with it after arguments and evidence submission.In between I came to india for visiting child this month and we approached high court for child visitation( We are continuing paying for kid at increased rate.The rest we are challenging in Session court.)Opposite counsel insisted for payment of arrears in connection with this Child custody and divorce appeal case and told interim stay is not awarded and judge took the view when interim stay is not paid arrears has to be paid within 10 days before next hearing.I want to know what is our solution.Case for interim stay and setting aside this judgement is before Sessions court and he has partly heard our arguments and the proceedings are going on.But since HC ordered like that we don't know what is the next step to do.The same bench in Mumbai is responsible for writ petition if we want to apply for interim stay.Or should we go for SLP in Supreme court.Please advise. DV case had no merits filed after 15 months of desertion without any DIR and without any evidences.Thts y we r challenging the order in Sessions court.
As of now you can pay very nominal amount for child till you get chance to file case in high court not in front of same bench.
If there is same bench for stay than kindly proceed for SLP and apply for child visitation rights, plus reduce the wife maintenance as she is working woman no need to pay her so huge amount. As compared to her payment.
If you want citations I can provide you for wife's maintenance amount reduced by SC or HC if wife is working woman.
Unless and until arrears are paid you would not be heard
before next date pay at least 50 per cent of arrears
Approach high court under article 227 on the following grounds.
Non observance of procedure - DIR report
Arbitrary and capricious exercise of power - direction of payment of 17 lakhs within 10 days where wife is earning lakhs of rupees per month and also educated one.
Arriving of finding based on no material - No DIR report and no supporting evidence.
Violation of principles of natural justice- hearing in appeal kept pending but no interim relief is granted.
note - You can not file writ under art. 226. It would not be maintainable.
Under 227, seek stay on maintenance order till appeal is decided since wife is educated earning lot of money.
Since the appeal is pending before sessions court your petition before high court seeking same relief may not be entertained before disposal of the case before the lower appellate court.
You can put pressure on sessions court to dispose the appeal in the next hearing and then you can approach high court if you are still aggrieved.
The lower court is not restricted to entertain petition to execute its orders hence it is right in mentioning about proceeding with the execution petition to execute the orders passed by the same court.
You should file a criminal revision against the dv case in the high court as it is an unreasonable order. The court has to take into consideration that your wife is working.
Regards
You can approach the High Court to reduce the maintenance amount. After paying the arrears.
1. The HC has rightly told you to pay arrears of maintenance qua your child since interim stay against final order of magistrate in DV case has not been granted by the Sessions Court.
2. It is most unlikely that you will get any relief in this matter from the Supreme Court as the order of HC does not prima facie suffer from any legal infirmity.
Since no stay from appellant court, order of trail court shall be honored. If in future , session court reduced the amount, excess paid amount shall be adjust with future installments.
Also file revision that court failed to take not of wife income, hence, wife not entitle to maintiancne but only child.
The SLP is the remedy in this case
If the order for payment of arrears have been granted by High court then you should approach Supreme Court with SLP for stay on arrears till decision of appeal.
