IN THE COURT OF THE HON'BLE DISTRICT JUDGE, DISTRICT District name, TIS HAZARI COURTS, DELHI
DV APPEAL NO. DV appeal number OF 20Year of appeal
IN THE MATTER OF :-
Appellant's name: APPELLANT
VERSUS
Respondent's name: RESPONDENT
INDEX
| S.NO. | PARTICULARS | PAGES |
|---|
| 1. | MEMO OF PARTIES | |
| 2. | APPEAL UNDER SECTION 29 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, ALONG WITH AFFIDAVIT. | |
| 4. | APPLICATION ON BEHALF OF THE APPELLANT SEEKING IMMEDIATE STAY OF THE ORDER DATED Date of the impugned judgment/order PASSED BY THE LEARNED M.M., MAHILA COURT, Name of the trial court in which the impugned order was passed, DELHI, IN CASE BEARING NO. Trial case number (MC number) TITLED "Complainant's name in trial case VS. Respondent's name in trial case", UNDER SECTION 29 OF THE PWDV ACT, 2005, FILED ON BEHALF OF THE APPELLANT, ALONG WITH AFFIDAVIT. | |
PLACEAPPELLANT
THROUGH
DATED
Advocate's name
ADVOCATE
IN THE COURT OF THE HON'BLE DISTRICT JUDGE, DISTRICT District name, TIS HAZARI COURTS, DELHI
DV APPEAL NO. DV appeal number OF 20Year of appeal
IN THE MATTER OF :-
Appellant's name: APPELLANT
VERSUS
Respondent's name: RESPONDENT
MEMO OF PARTIES
Appellant's name,
S/o Sh. Appellant's father's name,
R/o Appellant's residential address,
New Delhi – 1100PIN code digits.: APPELLANT
VERSUS
Respondent's name
D/o Sh. Respondent's father's name,
R/o Respondent's residential address,
New Delhi – 1100PIN code digits.: RESPONDENT
PLACEAPPELLANT
THROUGH
DATED
Advocate's name
ADVOCATE
IN THE COURT OF THE HON'BLE DISTRICT JUDGE, DISTRICT District name, TIS HAZARI COURTS, DELHI
DV APPEAL NO. DV appeal number OF 20Year of appeal
IN THE MATTER OF :-
Appellant's name,
S/o Sh. Appellant's father's name,
R/o Appellant's residential address,
New Delhi – 1100PIN code digits.: APPELLANT
VERSUS
Respondent's name
D/o Sh. Respondent's father's name,
R/o Respondent's residential address,
New Delhi – 1100PIN code digits.: RESPONDENT
APPEAL UNDER SECTION 29 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 AGAINST THE JUDGMENT DATED Date of the impugned judgment/order PASSED BY THE LEARNED COURT OF MS. Trial court Magistrate's name, LEARNED M.M. (MAHILA COURT, District of trial court DISTRICT, TIS HAZARI COURTS, DELHI), IN MC NO. Trial case number (MC number).
MOST RESPECTFULLY SHOWETH :-
It is most respectfully submitted on behalf of the above-named Appellant as under:
1.The above-named Appellant was the original Respondent No. 1 in MC No. Trial case number (MC number), filed under the provisions of the Protection of Women from Domestic Violence Act, 2005. The Appellant filed his detailed reply to the main complaint as well as to the interim application. The Learned Magistrate, after hearing both parties, decided the complaint under Section 12 of the D.V. Act and allowed the application of the Respondent herein. A certified copy of the judgment/order dated Date of the impugned judgment/order passed by the Hon'ble Metropolitan Magistrate, Mahila Court, Tis Hazari Courts, Delhi, is annexed hereto and marked as Exhibit "A".
2.The brief facts of the matter are as follows:
i.The marriage of the Appellant and the Respondent was solemnised on Date of marriage at Delhi in accordance with Hindu Vedic rites. Thereafter, the parties began residing and cohabiting with each other at the Appellant's parental house at Locality of matrimonial home, Delhi. After joining her matrimonial home, the Respondent declined to undertake any household work. The Appellant's aged mother would perform all the household duties, including cooking all the meals for the family. The Respondent enjoyed complete freedom with regard to her choices, style of living, attire, expenditure, and the like; however, she never reciprocated in the same spirit, claiming that she was a free and independent woman and that it was her right to live her life as she wished. The Appellant, time and again, attempted to reason with the Respondent that the issue was not one of freedom or liberty to live life as one pleases, but one of responsibility and respect towards the family and of leading a harmonious marital life. Nothing, however, had any effect upon the Respondent, who was at times arrogant and disrespectful towards everyone around her, including the Appellant and his parents.
ii.The Respondent remained in constant touch with her family through mobile phone calls and would take directions from her mother on how to evade every kind of responsibility; she would also allow such influence to shape her interactions with her in-laws by not affording them due love and respect. Further, the Respondent would make very frequent trips to her parental home, and the Appellant fully supported her wishes and encouraged her to meet her parents. It is pertinent to note that the Respondent, despite being the daughter-in-law of the family, never bothered to consult her in-laws or to seek their concurrence while planning her trips to her parental home.
iii. The Appellant states that, apart from abstaining from household work, the Respondent would behave rudely with the Appellant as well as with his parents. Such behaviour and conduct of the Respondent disturbed the peace of the family.
iv. The Appellant's father telephoned the Respondent's father and sought his intervention regarding the Respondent's indifferent attitude, non-cooperative behaviour, rude responses, disregard for the age of and relationship with her in-laws, and habitual falsehoods. The Respondent's father admitted that she was aggressive and at times even rude, but submitted that she could be the best of persons if handled with love. The Appellant therefore tried every possible means and showered his utmost affection upon her; however, the Respondent took this for granted and came to believe that it was her right to behave in the said manner.
v.The Appellant states that the Respondent never cared for family responsibilities and would give preference to her own pursuits and friends over family commitments, thereby embarrassing the other family members before their relatives.
vi. The Appellant states that such support on his part was never appreciated by the Respondent, who, on the contrary, has made false and frivolous allegations in the complaint of domestic violence filed before the Learned Mahila Court, Delhi.
vii.The Respondent is interested solely in leading a carefree life of fun and enjoyment without assuming any responsibility whatsoever, and she does not tolerate anyone questioning her conduct or pointing out her shortcomings.
viii.That the complaint is a misuse of the process of law; that the Respondent has suppressed material facts; that she herself is guilty of deserting the Appellant without any reasonable cause; that she has also initiated proceedings under Section 125 CrPC and lodged FIR No. FIR number under Sections 498-A/406/34 against the Appellant and his family members; that she is a graduate and had been working prior to the marriage, earning a sufficient income every month; and that she has filed the DV complaint only to harass the Appellant. The Appellant admitted the factum of the marriage between the Respondent and himself, and, apart from this, denied the allegations levelled by the Respondent and stated them to be false. It was further stated that the Appellant was working with his father at the time of the marriage and that his father was looking after the financial requirements of the family, facts which have been concealed by the Respondent.
ix. That the Appellant holds the qualifications of Appellant's educational qualifications; that his general monthly expenses are Rs. Appellant's monthly expenses/- per month; that his parents are dependent upon him; and that he works as a helper in the Family Canteen, earning Rs. Appellant's monthly income/- per month. The Appellant has further stated that the Respondent holds Respondent's educational qualification from Delhi University, has total work and professional experience of more than Respondent's years of work experience years in the financial and insurance sector, resides in a self-owned property, receives rent of Rs. Respondent's monthly rental income/-, and owns two properties at Locality of the Respondent's properties, New Delhi.
x.The Respondent filed an application under Sections 12 and 23 of the Protection of Women from Domestic Violence Act, 2005. A copy of the main application and the interim application is annexed herewith and marked as Exhibit “A colly”. The Appellant filed his reply to the said applications, and copies of the replies to the main application and the interim application are annexed hereto and marked as Exhibit “B colly”. The parties also filed their affidavits of disclosure, which are annexed and marked as Exhibit “D and E”.
xi. After hearing both parties, the Ld. M.M., Mahila Court, allowed the complaint of the Respondent under Section 12 of the D.V. Act against the Appellant.
3.Being aggrieved by the aforesaid judgment dated Date of the impugned judgment passed by the Learned Mahila Metropolitan Magistrate, Tis Hazari Court, Delhi (“impugned order”), the Appellant has preferred the present appeal on the following grounds, which are pleaded without prejudice to one another:
GROUNDS:-
I.BECAUSE THE LEARNED TRIAL COURT HAS FAILED TO APPRECIATE THAT THE APPELLANT, VIDE HIS REPLY, HAD SUCCINCTLY CONTROVERTED THE FALSE ALLEGATIONS RAISED IN THE DV COMPLAINT WITH PROOF AND EVIDENCE. IN THE ABSENCE OF ANY REJOINDER OR RESPONSE TO THE APPELLANT'S REPLY, NO PRIMA FACIE VIEW BELIEVING THE ALLEGATIONS OF THE RESPONDENT COULD HAVE BEEN TAKEN, NOR ANY RELIEF ACCORDED TO HER, BY THE LEARNED TRIAL COURT:
The Respondent admittedly failed to file a rejoinder or response to the reply filed by the Appellant. The allegations raised by the Respondent were succinctly and successfully controverted by the Appellant with all available proofs and evidence. Thus, in the absence of any rejoinder or response to the Appellant's reply, it is untenable as to how the Learned Trial Court could have arrived even at a prima facie view that domestic violence had occurred, so as to adjudicate the matter in favour of the Respondent. It is submitted that once a cogent and succinct reply, supported by credible evidence and proof, has been tendered before the Trial Court, the Learned Trial Court is duty-bound to adjudicate the application after taking a holistic view of, and due consideration to, the reply tendered by the Appellant. The Learned Trial Court has erroneously proceeded by merely relying upon the one-sided and unsubstantiated allegations of the Complainant. Accordingly, a question of law arises for the kind attention of this Hon'ble Court, namely:
Q. Once a succinct reply supported by proofs and evidence has been filed by the Appellant and the Respondent fails to file a rejoinder or response thereto, can the Magistrate, in the absence of such response or rejoinder, still take a prima facie view and accord relief to the Respondent under Sections 12 and 23 of the DV Act?
II.BECAUSE THE LEARNED TRIAL COURT, VIDE THE IMPUGNED ORDER, FAILED TO APPRECIATE THE IMPACT OF THE HUGE DELAY AND LACHES OF OVER FIVE YEARS IN PREFERRED THE PRESENT COMPLAINT WHILE ACCORDING RELIEF TO THE RESPONDENT UNDER SECTION 12 OF THE DV ACT:
Admittedly, it is a settled position that ignorance of law is no excuse. It is equally settled that a delay of over five years by the Respondent, Respondent's employer or occupation, would ordinarily dissuade a person from preferring such a complaint. In determining the prima facie view, the delay and laches in preferring a complaint carry significant weight, and where such consideration is ignored, the Learned Trial Court is at the very least duty-bound to record its rationale and reasons for overlooking such substantial delay and laches before affording any interim relief, as has been afforded vide the impugned order. Accordingly, a question of law arises for the kind attention of this Hon'ble Court, namely:
Q. Ought a delay of five years in preferring the complaint to have a bearing upon the adjudication of an interim application under the DV Act?
III.BECAUSE THE LEARNED TRIAL COURT, VIDE THE IMPUGNED ORDER, FAILED TO APPRECIATE THE PRE-PLANNED CONSPIRACY OF THE RESPONDENT TO FALSELY IMPLICATE THE APPELLANT AND HIS FAMILY MEMBERS IN FALSE CRIMINAL CASES SO AS TO BRING DISREPUTE TO THE APPELLANT AND HIS FAMILY MEMBERS, WITH AN AGENDA TO NEFARIOUSLY EXTRACT MONEY:
It is an admitted position that no rejoinder or response was filed by the Complainant. At the interim stage itself, the Learned Trial Court was not denuded of its power under Section 165 of the Indian Evidence Act to seek an inquiry on oath from the Respondent in order to ascertain the veracity of the material allegations, which even at their face value appeared not only improbable but contradictory. The Trial Court, vide the impugned order, recorded:
“Whether or not domestic violence was committed upon the aggrieved is a matter of trial, however at this stage this court is of the view that the respondents committed acts of domestic violence upon the aggrieved”
The aforesaid reasoning is flawed on three counts, namely:
1.Despite a cogent reply supported by proofs and evidence, the Learned Trial Court failed to appreciate that the reason no rejoinder or response was filed to the Appellant's reply is that the Respondent stood exposed by her own contradictions. In such circumstances, instead of drawing an adverse inference against the Respondent, the Learned Trial Court chose to treat her allegations as gospel truth and accorded her relief.
2.Where the pleadings on record establish that the material allegations levelled in the DV complaint are not only highly improbable but founded upon conjectures and surmises, the same ought at the least to have been considered and adjudicated while deciding the application under Section 12 of the DV Act before ruling against the Appellant.
3.The Learned Trial Court further failed to appreciate that, in fact, cruelty had been meted out to the Appellant and his immediate family members. Even a prima facie view of the matter would yield the singular inference that the allegations raised by the Respondent were untenable and unconscionable.
IV.BECAUSE THE LEARNED TRIAL COURT FAILED TO APPRECIATE THAT IN A MATRIMONIAL RELATIONSHIP THE 'DESERTER SPOUSE' CANNOT BE PERMITTED TO UNJUSTLY ENRICH HERSELF AT THE DETRIMENT OF THE 'DESERTED SPOUSE'. THE RESPONDENT VOLUNTARILY DESERTED THE COMPANY OF THE APPELLANT AND WAS THEREFORE NOT ENTITLED TO ANY RELIEF WHATSOEVER:
Reference is invited to the Complainant's own stand that on Date on which the Respondent left for her parental home, the Complainant, along with her minor daughter, of her own volition left for her parental home at City of the Respondent's parental home. It is the Respondent who deserted her husband without any basis or rationale. No adjudication upon, or even observation regarding, the aforesaid stand is reflected in the order of the Learned Trial Court, and no response or rejoinder to the Appellant's reply was placed on record. Thus, the Respondent cannot be permitted to use the law as an arm-twisting tactic to finance her matrimonial litigation. The Learned Trial Court failed to appreciate the dual motive of the Respondent, namely, to pressure the Appellant and his family members into acceding to her nefarious demands of procuring a divorce coupled with unreasonable monetary payments, at the detriment of the Appellant and his family members. Accordingly, a question of law arises for the kind attention of this Hon'ble Court, namely:
Q. Whether the deserter spouse can be permitted to unjustly enrich herself at the detriment of the deserted spouse and coerce the deserted spouse to finance her unreasonable demands?
V.BECAUSE THE IMPUGNED ORDER IS MANIFESTLY ERRONEOUS, INASMUCH AS, DESPITE RECOGNISING THE FACT THAT THE RESPONDENT HAD MATERIALLY CONCEALED HER REAL INCOME AND EARNINGS, THE LEARNED TRIAL COURT AWARDED MAINTENANCE OF Maintenance amount awarded per month PER MONTH FROM THE DATE OF FILING THE DV COMPLAINT, NAMELY THE EXACT AMOUNT STATED IN HER INCOME AFFIDAVIT:
The Learned Trial Court made the following observations with respect to the conduct of the Respondent in the impugned judgment.
The critical inferences arising from the Learned Trial Court's own observations regarding the material concealment of income by the Respondent include, inter alia, the following:
1.Vide the impugned order, the Court took judicial notice of the fact that the Respondent is not only capable of earning, but also that the earnings or income disclosed in her income affidavit do not reflect her true earnings, which would in all probability be higher.
2.That there has been material concealment of the Respondent's income and actual earnings, as is evident from her income affidavit, whereby the Respondent has approached the Ld. Trial Court with unclean hands. Admittedly, vide her income affidavit and the domestic violence complaint, the Respondent has made false statements on oath; however, instead of initiating proceedings for perjury, the said criminal conduct of the Respondent has been dealt with merely through passing observations. Further, the Ld. Trial Court also failed to appreciate that the Complainant had failed to file the requisite documents as per the legal mandate prescribed by the Hon'ble Apex Court.
Thus, despite holding the Respondent responsible for her malfeasance, the Ld. Trial Court, contrary to the said finding, granted the exact expenses as sought by the Respondent, in the same amount as claimed by her vide her income affidavit. The aforesaid raises important questions of law, namely:
Q. Whether a party that has approached the Court with unclean hands deserves any indulgence at the interim stage by the Trial Court?
Q. Once the Ld. Trial Court, vide the impugned order, has recognised that the Respondent was not only capable of earning but had also materially concealed her income from the Court, was the Ld. Trial Court justified in granting the exact quantum of expenses as claimed by the Respondent vide her income affidavit?
VI.BECAUSE THE LD. MAGISTRATE VIDE THE IMPUGNED ORDER FAILED TO APPRECIATE THAT THE PURPOSE OF GRANTING MAINTENANCE IS ONLY TO CATER TO THE BASIC NEEDS AND REQUIREMENTS, AND NOT TO FINANCE THE LUXURIES OF THE DESERTING SPOUSE, I.E. THE RESPONDENT IN THE PRESENT CASE:
A.Admittedly, no proof of expenses, either of the Respondent or of the child, has been annexed with the Income Affidavit.
B.Admittedly, the Respondent has, of her own volition, left the matrimonial home and has deserted the Appellant.
C.Admittedly, the Respondent, along with her minor daughter, has been residing at her parental home, and consequently no expenses towards residential accommodation are being incurred by her. It is further submitted that the Respondent is residing in self-owned property and is receiving rent of Monthly rent received by the respondent, and she owns two properties in Locality of respondent's property. The said property, i.e. the parental home of the Respondent, is an ancestral property and therefore confers rights therein upon the Respondent.
D.Admittedly, the Respondent has materially concealed her income, as noted by the Ld. Trial Court itself. Reference is drawn to the fact that the Respondent is working in Respondent's employer. However, a perusal of her Income Tax Returns reflects to the contrary. The said fact singularly points to her mischievous attempt to conceal her real income, a circumstance which ought to have been taken into consideration by the Ld. Trial Court, and requisite action ought to have been initiated by the Ld. Trial Court.
E.Admittedly, the Respondent is still working and earning handsomely, not only through bank transfers but also through cash receipts and rents, for which no disclosure has been made by the Respondent.
Thus, the grant of an amount of Maintenance amount awarded per month Period or from-date of maintenance award is not only erroneous but wholly arbitrary and untenable.
VII.BECAUSE THE LD. MAGISTRATE FAILED TO APPRECIATE THAT, UNDER THE GUISE OF THE WELFARE AND EXPENSES OF THE MINOR CHILD, THE RESPONDENT IS CLEVERLY ATTEMPTING NOT ONLY TO FINANCE HER OWN NEEDS BUT ALSO TO FINANCE HER LITIGATION AT THE DETRIMENT OF THE APPELLANT:
It is an admitted position that the Respondent, along with the minor daughter, is residing at her parental home, and no proof has been brought on record to establish that she is paying rent to her parents or bearing any household expenses. Thus, at the interim stage, the Respondent ought not, in any manner, to be permitted to unjustly enrich herself at the detriment of the Appellant.
PRAYER
In light of the facts mentioned above and in the interest of justice, the Appellant humbly prays that this Hon'ble Court may kindly be pleased to:
i.Summon the original records of the Ld. Trial Court; and
ii.Recall / set aside the impugned judgment dated Date of the impugned judgment to the extent of grant of any maintenance in favour of the Respondent; and
iii.Modify the impugned order to the extent of continuing the maintenance for the minor child at a reasonable rate, based on the real expenses incurred upon the minor child, subject to the outcome of the custody petition pending before the Court where the custody petition is pending.
iv.Pass any other order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
v.For which act of kindness, the Appellant, as in duty bound, shall ever pray.
PLACEAPPELLANT
THROUGH
DATED: Date of signing
ADVOCATE
VERIFICATION
Verified at Place of verification on this Date of verification day of Month and year of verification that the contents of Paragraph Nos. 1 to Last paragraph number based on knowledge of the Appeal above are true and correct to my knowledge and based on documents, and those of Paragraph Nos. First paragraph number based on legal advice to Last paragraph number based on legal advice are true and correct as per legal advice received and believed to be true. Nothing is false and nothing material has been concealed therefrom. The last paragraph is the prayer to this Hon'ble Court.
APPELLANT
IN THE COURT OF THE HON'BLE DISTRICT JUDGE, DIST. District name, Court complex name, Court city
DV APPEAL NO. DV appeal number OF Year of appeal
IN THE MATTER OF:
MR. Appellant's name: APPELLANT
VERSUS
SMT. Respondent's name: RESPONDENT
AFFIDAVIT
Affidavit of Mr. Deponent's name, S/o Sh. Deponent's father's name, aged about Deponent's age years, R/o Deponent's residential address, Court city-1100PIN code digits, do hereby solemnly affirm and state as follows:
1.That I, the Deponent, being the Appellant in the above-captioned case, am well conversant with the facts of the case and am competent to swear the present affidavit.
2.That the contents of the accompanying Appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 have been drafted by my counsel as per my instructions, and the contents thereof have been duly read over and understood by me. Having fully understood the contents thereof, I hereby state that the facts stated therein are true and correct to my knowledge.
DEPONENT
VERIFICATION
Verified at Place of verification on this Date of verification day of Month and year of verification that the contents of the above Affidavit are true and correct to my knowledge, and nothing material has been concealed therefrom.
DEPONENT
IN THE COURT OF THE HON'BLE DISTRICT JUDGE, DIST. District name, Court complex name, Court city
DV APPEAL NO. DV appeal number OF Year of appeal
IN THE MATTER OF:
MR. Appellant's name: APPELLANT
VERSUS
SMT. Respondent's name: RESPONDENT
APPLICATION ON BEHALF OF THE APPELLANT FOR STAY OF THE OPERATION OF THE IMPUGNED JUDGMENT DATED Date of the impugned judgment PASSED BY THE LD. COURT OF MS. Trial court Magistrate's name, DIST. District of trial court, Court complex name, Court city, IN THE CASE BEARING NO. Trial case number (MC number) TITLED "Complainant's name in trial case VS. Respondent's name in trial case & ORS." TILL THE DISPOSAL OF THE APPEAL UNDER SECTION 29 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 FILED ON BEHALF OF THE APPELLANT.
MOST RESPECTFULLY SHOWETH:
1.That a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was filed by the present Respondent against the Appellant and his parents. The contents of the captioned Appeal are not reiterated herein for the sake of brevity; however, the Appellant craves leave of this Hon'ble Court to rely upon the same.
2.That a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was preferred by the present Respondent against the Appellant seeking grant of maintenance. The said complaint was disposed of by the Ld. Trial Court vide judgment dated Date of the impugned judgment (hereinafter referred to as the "impugned judgment"), by arbitrarily passing an inequitable order in favour of the present Respondent and granting maintenance of Maintenance amount awarded in favour of the Respondent and the minor daughter.
3.That the captioned Appeal has been preferred by the Appellant against the said impugned order passed by the Ld. Trial Court without considering the material placed on record by the Appellant. The present stay application must be read in conjunction with the Appeal, and the contents of the said Appeal must be read as part and parcel of the present stay application.
4.That the Appellant has set out a detailed narration of the factual matrix as it actually transpired between the parties, and, for the sake of brevity, the same is not repeated herein; the Appellant accordingly craves leave of this Hon'ble Court to rely upon the factual narration contained in the captioned Appeal.
5.That being aggrieved by the impugned order, the Appellant has challenged the impugned order on the following grounds:-
I.Because the Learned Trial Court failed to appreciate that the Appellant, by way of a detailed reply, had succinctly controverted the false allegations raised in the domestic violence complaint with proof and evidence, and in the absence of any rejoinder or response to the Appellant's reply, no prima facie view believing the allegations of the Respondent could have been taken, nor could any relief have been granted to her by the Learned Trial Court.
II.Because the Learned Trial Court, while passing the impugned order, failed to appreciate the impact of the huge delay and laches of over Delay in filing the complaint (e.g. "5 years") in preferring the domestic violence complaint while granting interim relief under Section 12 of the DV Act.
III.Because the Learned Trial Court, by the impugned order, failed to fathom the pre-planned conspiracy of the Respondent to falsely implicate the Appellant and his family members in false criminal cases, so as to bring disrepute to the Appellant and his family members, with an agenda to nefariously extort money.
IV.Because the Learned Trial Court failed to appreciate that in a matrimonial relationship, the 'deserter spouse' cannot be permitted to unjustly enrich herself at the detriment of the 'deserted spouse'. The Respondent had, of her own volition, deserted the company of the Appellant, and was thus not entitled to any relief whatsoever.
V.Because the impugned order is manifestly erroneous, inasmuch as despite recognising the fact that the Respondent had materially concealed her real income and earnings, the Learned Trial Court awarded maintenance of INR Maintenance amount awarded per month from the date of the application, which is the exact amount stated in her income affidavit.
VI.Because the Learned Trial Court, by the impugned order, failed to appreciate that the purpose of granting maintenance is only to cater to the basic needs and requirements, and not to finance the luxuries of the deserter spouse, i.e. the Respondent in the present case.
VII.Because the Learned Trial Court failed to appreciate that, under the guise of the welfare and expenses of the minor child, the Respondent is attempting to finance not only her own lavish needs but also her litigation, at the detriment of the Appellant.
(The detailed grounds challenging the impugned order have been duly set out in the captioned Appeal and are not reiterated herein for the sake of brevity; however, the Appellant craves leave of this Hon'ble Court to rely upon the same.)
6.That the operation of the said impugned judgment, until the adjudication of the captioned Appeal, will unjustly result in wrongful gain to the Respondent and cause corresponding wrongful loss to the Appellant. That the said impugned order is per se arbitrary and inequitable, and without addressing the grounds of challenge mentioned above, its execution would constitute a gross violation of the principles of natural justice.
PRAYER:-
In light of the facts mentioned above and in the interest of justice, it is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to immediately stay the operation of the impugned judgment dated Date of the impugned judgment/order passed by the Learned Trial Court.
It is further prayed that this Hon'ble Court may be pleased to pass such other and further order(s) as this Hon'ble Court may deem just, fair and proper in the facts and circumstances of the present case and in the interest of justice.
It is, therefore, most respectfully prayed accordingly.
PLACEAPPELLANT
THROUGH
DATED: Date of signing
ADVOCATE
IN THE COURT OF THE HON'BLE DISTRICT JUDGE, DISTRICT District name, Name of the court complex.
DV APPEAL NO. DV appeal number OF 20Year of appeal
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondent's name: RESPONDENT
AFFIDAVIT
Affidavit of Deponent's name, S/o Sh. Deponent's father's name, aged about Deponent's age years, resident of Deponent's residential address, PIN - PIN code digits, do hereby solemnly affirm and state as follows:-
1.That I, the Deponent, being the Appellant in the above-captioned case, am well conversant with the facts of the case and am competent to swear the present affidavit.
2.That the contents of the accompanying Stay Application have been drafted by my counsel as per my instructions; the contents thereof have been duly read over and explained to me, and after fully understanding the same, I state that the facts stated therein are true and correct to my knowledge.
DEPONENT
VERIFICATION:-
Verified at City where affidavit is verified on this Date of verification that the contents of the above Affidavit are true and correct to my knowledge, that no material fact has been concealed therefrom, and that the same is based upon records believed by me to be true.
DEPONENT