Appeal under Section 397 CrPC against order of interim maintenance in DV Act proceedings
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APPEAL UNDER SECTION 397 Cr.P.C. AGAINST ORDER OF INTERIM MAINTENANCE IN PROCEEDINGS UNDER THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
IN THE MATTER OF:-
Appellant's name & Anr….Appellant
Versus
The State of State name & Ors….Respondents
I N D E X
Sl. No.Particulars of item | Court-fee | Page no.
1.Application for Urgent Hearing
2.Notice of Motion
3.List of Dates and Events
4.Memo of Parties
5.Appeal under Section 397 Cr.P.C. against the impugned order dated Date of impugned ASJ order passed by Sh. ASJ's name, Ld. Additional Sessions Judge, Saket Courts, Delhi, along with the Affidavit in support of the Appeal
6.Application for stay of the operation of the impugned order, dated Date of stay application
7.Affidavit in support of the application for stay
8.Certified copy of the impugned order dated Date of impugned ASJ order
9.Application under Section 482 for exemption, with Affidavit
10.Vakalatnama
Date of filing
DateAppellant
DelhiThrough
Advocate's firm name & Associates, Counsel for the Appellant, Office No. X, Counsel's office address, Delhi-Office pincode
IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI
(CRL. JURISDICTION)
(Crl. Misc. Main No. Case number)
IN THE MATTER OF
Appellant's name….Appellant
Versus
The State of State name & Ors….Respondents
URGENT APPLICATION
To,
The Registrar,
Hon'ble High Court of Delhi,
New Delhi.
Sir,
It is most respectfully submitted that the accompanying appeal may kindly be treated as urgent in accordance with the High Court Rules and Orders. The ground of urgency is that the Appellant is being unnecessarily harassed by Respondent No. 2, who has fabricated documents of the Appellant and produced them before the Ld. MM's Court, although the Appellant is not capable of paying the amount so directed.
Thanking you.
New Delhi
Dated:
(Advocate's firm name & Associates)
Advocate for the Petitioner
IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI
(CRL. JURISDICTION)
(Crl. Misc. Main No. Case number)
IN THE MATTER OF
Appellant's name….Appellant
Versus
The State of State name & Ors….Respondents
NOTICE OF MOTION
Sir/Madam,
The enclosed Miscellaneous Main Appeal in the aforesaid matter is being filed on behalf of the Appellant, and the same is likely to be listed on Date of listing or on any other date thereafter, before the Hon'ble High Court of Delhi at New Delhi.
Kindly acknowledge receipt of the complete set of the said petition and issue notice accordingly.
Thanking you.
New Delhi
Dated:
Counsel
(Advocate's firm name & Associates)
Advocate for the Petitioner
Office No. X, Counsel's office address, Delhi, Mob: Counsel's mobile number
IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI
(CRL. JURISDICTION)
(Crl. Misc. Main No. Case number)
IN THE MATTER OF
Appellant's name….Appellant
Versus
The State of State name & Ors….Respondents
MEMO OF PARTIES
Sh. Appellant's name,
S/o Late Shri Appellant's father's name,
R/o X-X, Appellant's address, Gujarat….Appellant
VERSUS
1.State of NCT of Delhi,
Through the Secretary, Delhi Government.
2.Smt. Respondent's name,
W/o Sh. Respondent's husband's name,
D/o Sh. Respondent's father's name,
R/o X-Respondent's house number, Respondent's address, Delhi-Respondent's pincode….Respondent
Appellant
Through
Place: Delhi
Date:
Counsel
(Advocate's firm name & Associates)
IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI
(CRL. JURISDICTION)
(Crl. Misc. Main No. Case number)
IN THE MATTER OF
Appellant's name….Appellant
Versus
The State of State name & Ors….Respondents
APPEAL UNDER SECTION 397 Cr.P.C. AGAINST THE ORDER DATED Date of impugned ASJ order PASSED BY SH. ASJ's name, ASJ-ASJ's court number & SPECIAL JUDGE (NDPS), SOUTH-EAST, SAKET COURTS, DELHI.
MOST RESPECTFULLY SHOWETH:
1.That the present Appeal has been filed against the order dated Date of impugned ASJ order passed by Sh. ASJ's name, ASJ, Saket Courts, Delhi, in the appeal preferred by the Appellant against the order dated Date of MM maintenance order passed by the Ld. Court of Ms. MM's name, M.M., Saket Courts, Delhi, whereby the Appellant has been directed to deposit directly a sum of Rs. Monthly maintenance amount (₹)/- per month towards ad-interim maintenance. A copy of the impugned order is annexed herewith as ANNEXURE-A.
2.That on Date of ASJ dismissal order, the Hon'ble Court of Sh. ASJ's name, ASJ, Saket Courts, Delhi, was pleased to dismiss the Appeal filed by the Appellant against the order dated Date of MM maintenance order passed by the Ld. Court of Ms. MM's name, M.M., Saket Courts, Delhi. The order dated Date of ASJ order (Annexure B) is annexed herewith as ANNEXURE-B.
3.That the Appellant has not filed any similar appeal against the impugned order dated Date of impugned ASJ order passed by Sh. ASJ's name, ASJ, Saket Courts, Delhi, before this Hon'ble Court or any other court.
4.That the facts giving rise to the present appeal are as follows:
(a)The marriage between the Appellant and Respondent No. 2 was solemnised on Date of marriage at Ahmedabad, after a courtship of Courtship period (months) months. Prior to the marriage, they were engaged on Date of engagement at Ahmedabad. After the marriage, the Respondent and the Appellant lived together, and no child has been born out of the wedlock so far. The marriage was an arranged and simple one, and there was no demand of dowry articles either at the time of the marriage or thereafter; whatever articles were given by her parents were given of their own wish and desire, and the same remained in the custody and possession of Respondent No. 2 herself.
(b)Respondent No. 2 is a management graduate, holding the degrees of B. Pharma and M.B.A., and was working with Respondent's employer at time of marriage, Bangalore, at the time of the marriage. After the marriage, she changed her job (with an increment and a better job profile) for a period of Period of new job and worked with Respondent's subsequent employer as a Territory Manager, and moved to Ahmedabad in March, Year of move to Ahmedabad. It is also important to mention here that she stated in her details in the Affidavit of Income and Expenditure filed before the Ld. Court of Ms. MM's name in the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005, that she had earned Rs. Respondent's total earnings (₹)/- (Rs. Respondent's earnings (₹) Lakhs) since the marriage, and she also admitted that she was earning more than one lakh per annum. She further mentioned that she has four bank accounts, one in Bank name 1 Bank, Bank branch 1; Bank name 2 Bank, Bank branch 2, Chennai (joint account with her husband); Bank name 3 Bank, Bank branch 3, Mumbai; and Bank name 4 Bank, Bank branch 4, New Delhi; and that the Respondent has a Demat account, which has been inactive for the last few years, but she did not disclose the amount lying therein or the number of shares held in the Demat account. She also admitted that she has an Insurer's name life insurance policy with a premium of Rs. Insurance premium paid (₹)/- (Rs. Insurance premium (₹ lakh) Lakh) paid, and that she holds credit cards issued by banks, such as the Credit card issuer Credit Card, with a limit of a few lakhs of rupees, and Debit card issuer 1 and Debit card issuer 2 Debit Cards, and that she attends gym and dance classes, among other activities. She has also stated that she is residing in a Government officer's flat (3 BHK) allotted to her father; however, this is not correct, as the Respondent is residing at her parental home in Motera, Ahmedabad.
(c)That the appellant and the respondent, along with their parents, gathered at the lawyer's office at City of marriage and matrimonial home, where it was decided that neither party shall raise any claim or demand, including any claim of compensation, against the other. However, on the date fixed for signing the said papers and dissolving the marital relations, Respondent No. 2 demanded divorce with permanent alimony of Rs. Permanent alimony demanded (₹ lakh) lakhs. This demand for divorce was made by Respondent No. 2, and such hostility has caused serious mental and financial hardship to the appellant. In this manner, on account of the said demand and the unreasonable conduct of Respondent No. 2 and her parents, the said settlement failed.
(d)THAT Respondent No. 2 has been working since before the marriage and also continued working after the marriage. It is admitted by Respondent No. 2 herself that she earned more than Rs. Respondent's earnings (₹)/-, and that she is presently gainfully employed, earning handsomely and very well maintaining herself. Respondent No. 2 is therefore not entitled to any maintenance, as she has more than sufficient income of her own. Respondent No. 2 is highly qualified, holding degrees of B. Pharma and M.B.A., and is working with Respondent's current employer. Respondent No. 2 has wrongly alleged that she is not employed and has no means of income. The sole motive of Respondent No. 2 is to compel the appellant to grant a mutual divorce against payment of a hefty amount, to which Respondent No. 2 is neither legally nor morally entitled.
(e)That the appellant is working as a trainee with Name of appellant's training employer on a monthly remuneration of USD Appellant's monthly income (USD) per month, and his expenses, namely shared accommodation, air tickets, food, lodging and other expenses, are borne by the company. It is pertinent to mention that the appellant has joined Name of appellant's training employer only as a trainee; he is not on the payroll of the company, his engagement with the company is on a temporary basis, and his remuneration is linked to need-based training with the company.
4.THAT Respondent No. 2 has initiated and instituted a false and fabricated petition in order to harass, humiliate and defame the appellant in society. Respondent No. 2 has caused utmost mental and physical cruelty, harassment, humiliation and torture to the appellant, whose life has been ruined and rendered miserable.
5.THAT Respondent No. 2 has wilfully and intentionally withdrawn from the company and society of the appellant without any just and sufficient reason, and has refused to live with the appellant; as such, Respondent No. 2 is not entitled to any maintenance.
6.THAT Respondent No. 2 has not approached this Hon'ble Court with clean hands and has concealed the true and material facts. In this regard, it is submitted that all the incidents and occasions set out by Respondent No. 2 are purely concocted, self-imaginary and highly unbelievable, being a self-cooked-up story beyond truth and substance. The same only reflects how Respondent No. 2 and her family members spoiled the marital relations between the parties, and how, with their influence and dictatorial behaviour, they sought to terrorise and harass the appellant and his family members. Respondent No. 2 and her family members are themselves responsible for the fate of the marriage, and in order to cover up their own wrongs and misdeeds, they have levelled false and outrageous allegations against the appellant. In this manner, Respondent No. 2 and her family members, of their own accord, wish to break the marital relations between the parties.
7.That the appellant filed a proper reply to the complaint petition, along with a reply to the application for ad-interim maintenance, setting out all the ill motives of Respondent No. 2, and also prepared a detailed income affidavit. However, certain particulars remained incomplete, as the bank and other information could not be filled in the affidavit because the appellant was in Country where the appellant was posted abroad and was unable to communicate with the banks.
8.That the appellant remains deeply attached to Respondent No. 2, and she is exerting pressure through false litigation to obtain a divorce by mutual consent, because the appellant is not earning as much as she is earning, or is able to earn, or as per her expectations.
10.That the appellant is in great difficulty, as he receives only USD Appellant's monthly income (USD) per month, and the direction to pay Rs. Monthly maintenance amount (₹)/- per month to Respondent No. 2 is extremely burdensome for him, as his survival itself is difficult on such a meagre earning.
11.That the Ld. Court of M.M. passed an order dated Date of MM maintenance order, thereby directing the appellant to pay Rs. Monthly maintenance amount (₹)/- per month from the date of the order. The Ld. M.M., without considering the law and the facts of the case, passed the said order, which is clearly illegal, unlawful, unjust and unsustainable. The appellant accordingly filed an appeal before the Hon'ble Court against the order dated Date of MM maintenance order passed by the Ld. M.M., and the Hon'ble Court of Sh. ASJ's name, ASJ, Saket Courts, Delhi, was pleased to dismiss the appeal on Date of ASJ dismissal order, subject to costs of Rs. Cost imposed (₹)/-.
12.That feeling aggrieved by the aforesaid impugned order, the appellant has preferred the present appeal before this Hon'ble Court against the order dated Date of impugned ASJ order passed by the Hon'ble Court of Sh. ASJ's name, ASJ, Saket Courts, Delhi.
GROUNDS OF REVISION: -
1.That the Ld. M.M. and the Hon'ble Court of ASJ, Saket Courts, Delhi, failed to appreciate the fact that the respondent has no locus standi to file the present matter, as she is a highly qualified person, holding degrees of B. Pharma and M.B.A., gainfully working with Respondent's current employer as Senior Manager (Marketing & Branding) and earning handsomely.
2.That the Ld. M.M. and the Hon'ble Court of ASJ, Saket Courts, Delhi, failed to appreciate the fact that the appellant is earning only USD Appellant's monthly income (USD) per month, and that the direction to pay Rs. Monthly maintenance amount (₹)/- per month is illegal and unsustainable.
3.That the Ld. M.M. and the Hon'ble Court of ASJ, Saket Courts, Delhi, failed to appreciate the affidavit of income and expenditure filed by the respondent, in which she stated herself that she earned Rs. Respondent's earnings (₹)/- as income, and that she holds four bank accounts with Bank name 1 Bank (New Delhi), Bank name 2 Bank (Chennai), Bank name 3 Bank (Mumbai) and Bank name 4 Bank (New Delhi). She also holds a Insurance policy name policy with a premium of Rs. Insurance premium paid (₹)/- paid, along with a laptop, an iPad, credit cards, etc.
4.That the Hon'ble Court did not apply its judicial mind in passing the order, inasmuch as not a single word in the complaint filed by the respondent discloses the earnings of the appellant, and no affidavit of income and expenditure of the appellant is on record. The question therefore arises as to how the Hon'ble Court ascertained the income of the appellant so as to pass the said order.
5.That the Ld. M.M. failed to consider the fact, recorded in the order sheet, that the respondent herself stated in her complaint that she is not only fully capable of maintaining herself but is even able to provide a luxurious life to other members of her family.
6.That the Ld. M.M. failed to appreciate the fact that the Court does not have jurisdiction to entertain the petition, as the marriage between the complainant and the respondent was solemnised at City of marriage and matrimonial home, and they lived together as husband and wife at City of marriage and matrimonial home; they never lived at Delhi, and, according to the complainant's own case, no alleged offence of domestic violence took place at Delhi.
7.That the learned M.M. failed to appreciate the submissions of counsel for the appellant that, owing to certain difficulties, he could not collect all the documents essential for filing along with the affidavit of income and expenditure; whereas on the last date of hearing the Hon'ble M.M. had only directed that the affidavit be filed on the next date, i.e., Date fixed for filing affidavit, and on that date the affidavit of the appellant was ready and was being filed. It is submitted that the learned Court, solely on account of the said documents, imposed costs of Rs. Cost imposed (₹)/-, which is unfair and unjust to the appellant.
8.That it is highly unfair that the learned M.M., without first disposing of the interim application, fixed interim maintenance of Rs. Monthly maintenance amount (₹)/- per month.
9.That the learned M.M. has travelled beyond the pleadings, documents and material on record and has failed to appreciate that the appellant is not capable of paying maintenance of Rs. Monthly maintenance amount (₹)/- per month; further, the respondent is a highly educated woman who was earning prior to the marriage and is earning at present as well, and is thus not entitled to maintenance of Rs. Monthly maintenance amount (₹)/- per month.
10.That the Hon'ble Court of ASJ, Court complex name, failed to appreciate the affidavit of income and expenditure filed by the appellant before the Hon'ble Court, wherein it was specifically stated that the appellant is earning only $ Appellant's monthly income (USD) per month.
11.That the Hon'ble Court of ASJ, Court complex name, failed to appreciate the submission of counsel for the appellant that the appellant is unable to pay Rs. Monthly maintenance amount (₹)/- per month as ad-interim maintenance to the respondent, as directed by the learned M.M., Court complex name, because the appellant is earning only $ Appellant's monthly income (USD) per month.
12.That the Hon'ble Court of ASJ, Court complex name, failed to appreciate the submissions of counsel for the appellant and also failed to decide the matter on merits, and instead was pleased to dismiss the appeal filed by the appellant, subject to costs of Rs. Cost imposed (₹)/-.
P R A Y E R
It is, therefore, most humbly and respectfully prayed that this Hon'ble Court may graciously be pleased to:
(1)allow the present appeal and set aside/quash/strike down the impugned order dated Date of impugned ASJ order passed by Sh. ASJ's name, ASJ, Court complex name, in the petition under Section 12 of the PWDV Act, and, in the interest of justice, direct that the records/file of the original case, pending before Ms. MM's name, M.M., Court complex name, be called for from the court below.
(2)pass any other order/orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
DateAppellant
PlaceThrough
Counsel
(Advocate's firm name & Associates)
Office No. X, Counsel's office address, Delhi-Office pincode
IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI
(CRL. JURISDICTION)
Crl. Misc. Main No. of Case number
IN THE MATTER OF:-
Appellant's name & Anr.….Appellants
Versus
The State of State name & Ors.….Respondents
AFFIDAVIT
I, Deponent's name, W/o Sh. Deponent's husband's name, D/o Sh. Deponent's father's name, aged Deponent's age years, R/o X-X, Deponent's address, New Delhi, at present at Delhi, do hereby solemnly affirm and state as under:
1.That the deponent is the appellant in the above-noted appeal, is well conversant with the facts of the case, and is competent to swear the present affidavit.
2.That the contents of the accompanying appeal under Section 397 Cr.P.C. have been drafted by my counsel under my instructions; the contents thereof have been read over to me in vernacular and understood by me, and they are correct. The same may kindly be read as part and parcel of the present affidavit, and are not repeated herein for the sake of brevity.
3.That the annexure is a true copy of the original.
4.That no other similar petition seeking the prayers made in the accompanying appeal has been filed before this Hon'ble Court or before the Hon'ble Supreme Court of India.
DEPONENT
VERIFICATION:
I, the above-named deponent, do hereby verify at New Delhi on this Date of affidavit verification that the facts stated in the above affidavit are true to my knowledge; no part of the same is false and nothing material has been concealed therefrom.
DEPONENT
IN THE COURT OF DISTRICT AND SESSION JUDGE, Court complex name
Case No./Case number
Sh. Appellant's name….Appellant
Versus
Smt. Respondent's name….Respondent
APPLICATION FOR STAY OF OPERATION OF THE IMPUGNED ORDER PASSED BY THE LEARNED M.M., Court complex name, ON Date of MM maintenance order
MOST RESPECTFULLY SHOWETH:
1.That the above revision has been filed before this Hon'ble Court and the same is pending adjudication.
2.That the appellant has filed the above revision, which is pending before this Hon'ble Court; the contents of the revision petition may kindly be treated as part and parcel of this application, as the same are not repeated herein for the sake of brevity and to save the precious time of this Hon'ble Court.
3.That the appellant has a very good prima facie case in his favour, and there is every likelihood of the impugned order dated Date of MM maintenance order being set aside/quashed/struck down.
4.That the balance of convenience lies in favour of the appellant and against the respondent.
5.That if the impugned order dated Date of MM maintenance order is not stayed, the revision of the appellant will become infructuous, and the appellant will suffer irreparable loss and injury.
6.That an affidavit in support of this application is also annexed herewith.
P R A Y E R
It is, therefore, most humbly and respectfully prayed that, in view of the above facts and circumstances and in the interest of justice, the operation of the impugned order dated Date of MM maintenance order passed by Ms. MM's name, M.M., Court complex name, in the petition under Section 12 of the PWDV Act, allowing the application for ad-interim maintenance of the respondent and directing the appellant to pay Rs. Monthly maintenance amount (₹)/- per month, may kindly be stayed till the final decision of the main revision. The records of the learned Trial Court may also kindly be summoned/called for in the interest of justice.
DateAppellant
Place: Delhi
Through
Counsel
(Advocate's firm name & Associates)
Office No. X, Counsel's office address, Delhi-X
Mob: Counsel's mobile number
IN THE COURT OF DISTRICT AND SESSION JUDGE, Court complex name
Case No./Case number
Sh. Appellant's name….Appellant
Versus
Smt. Respondent's name….Respondent
AFFIDAVIT
I, Sh. Deponent's name (appellant), S/o Late Shri Deponent's father's name, R/o X-X, Deponent's address, Deponent's state of residence, do hereby solemnly affirm and declare as under:
1.That the deponent is the appellant in the present revision and is well conversant with the facts and circumstances of the case.
2.That the accompanying application has been prepared, drafted and filed under the instructions of the deponent, and the contents thereof are true to my knowledge and belief.
DEPONENT
VERIFICATION:
I, the above-named deponent, do hereby verify on thisday of Date of affidavit verification at Delhi that the contents of paragraphs 1 and 2 of this affidavit are true to my knowledge and belief and no part of the same is false.
DEPONENT