Interim Maintenance Stay order

Can anyone advise please 

Originally posted by : Anshul Sharma
	Dear Experts,  I have successfuly filled an appeal / stay order (DV CASE) in session court after getting the interim order of 1/3 my salary  from Lower court and had good arguments  with session judge. Lower court had failed to ask for the Detailed income /assets Affidavit from wife side as per the Kusum sharma judhement , hence in 1st date of arguments, session court has asked wife to submitt the same. In affidavit , wife mentioned her high qualification with the bank account balance  of Rs. 1lakh., Session court has given us the next date in september for arguments.  Now lower court is  forcing me to pay the arrears to wife or else issue the arrest warrant to me. How to  handle this as i dont want to pay any amount untill the final decision of Session court. Lower court asked me to come on2/08/16 to pay the amount. what to do ? Can i tell the court that wife has suppressed the fact of acount balance mentioned by her in affidavit of Rs/ 1lakh ? Can i tell the court that i cannot afford this amount as its not justified to me hence i have filled an appeal  ! Please suggest me the good way to manipulate or what to say lower court to avoid paying the money ?

I will guide you but firstly tell 

is file is still with trial court and court didn't ordered for TCR.

if no why??

Dear Sidharth, 

ASJ , has mentioned in his order that - Case received by the way of assignment , check and registred . Respondent (wife ) has submitetd the detailed affidavit and both the counsel of the parties requested for the next adjournment.. TCR will be informed acoordingly. 

But wife counsel states to LC that the stay has not been granted by Hon'ble session court  yet so issue the conditonal warrant against the husband , and LC has issued the conditional arrest warrant. I have filled an appeal against the condiotnal warrant in ASJ for the stay of the opertion of order for condionalarrest. Stay Granted.. I am free , Yet wife consel has filled an early hearing application to cancel the stay oder for the operation of arrest and he stated that as per the judgement of Supreme court -Shalu ojha vs prasant ojha 2015 " IF SESSION COURT  DOESNT HAVE POWER TO GRANT THE INTERIM ORDER  DURING PENDENCY , SESSION COURT OUGHT NOT HAEV STAYED THE EXECUTION OF MAINTENANCE ORDER PASSED BY MEGISTRATE. 

Please guide me will this judgement submit by wife counsel will cancel me stay on arrest warrant ?

Dear Sidharth, 

ASJ , has mentioned in his order that - Case received by the way of assignment , check and registred . Respondent (wife ) has submitetd the detailed affidavit and both the counsel of the parties requested for the next adjournment.. TCR will be informed acoordingly. 

But wife counsel states to LC that the stay has not been granted by Hon'ble session court  yet so issue the conditonal warrant against the husband , and LC has issued the conditional arrest warrant. I have filled an appeal against the condiotnal warrant in ASJ for the stay of the opertion of order for condionalarrest. Stay Granted.. I am free , Yet wife consel has filled an early hearing application to cancel the stay oder for the operation of arrest and he stated that as per the judgement of Supreme court -Shalu ojha vs prasant ojha 2015 " IF SESSION COURT  DOESNT HAVE POWER TO GRANT THE INTERIM ORDER  DURING PENDENCY , SESSION COURT OUGHT NOT HAEV STAYED THE EXECUTION OF MAINTENANCE ORDER PASSED BY MEGISTRATE. 

Please guide me will this judgement submit by wife counsel will cancel me stay on arrest warrant ?

Only high court can set aside the order of session court not district judge.

Moreover as per the DV Act no court can arrest you for non payment of interim maintainance. 

Moreover the judgement says "OUGHT NOT HAEV STAYED THE EXECUTION " it means SC tells what should do and not cannot do so if session court thinks that stay order is required for justice session court can do so.

In short this judgement only tells how to deal with the case and not binding on session court

Please read the shalu ojha case completely- it says that issue of whether sessions court can stay the execution is kept open so it is not applicable in your case.

Your advocate has done good job but it is temporary since stay can be lifted, you can delay only  at the most till hearing of revision..

You such immediately go to lower court study the complaint in minute details and submit reasoned applictions that :-

a) There was no domestic relationship with the complainant / petitioner.

2) There was no domestic voilence.

3) The complaint is barred by jurisdiction.

Go in revision on these issues in higher courts since maintenance is imotional issue and law favours the other side.

Dear Sidharth & LAXMINARAYAN - Sr Advocate.,

Thanks for the info and guidence and will abide the same . 

Today , the argument was fixed on the application of Early hearning. ASJ has rejected her application.

Now my revision appeal against Interim passed by LC is pending for the argument before Session judge. My wife is higly educated and having all the degrees of education, from BA , MA, MBA, BED to LLB.  

Evidence I have -

1) I have her resume mentioned all the above qualification with xerox certificates .

2) I have hired a detective who has given me the picture of her during work in  office. He could not talk to her as she has done some setting with her employer.( Small institute) but he has clicked the photograph which is with me . 

3)  I have her marriage registration card  where she ahs mentioned her qualification and salary as well.

4) In Detailed affidavit, she has mentioned her qualification but have not mentioned her past and current job status. Also she has mentioned about 1 lakh in her account.

What are the chances for rejecting her Interim based on the above 4 points ?

Kindly advice lastlly please and thnaks once again in advance 

Maintenaince can be rejected on the above mention points but why you filed revision and not appeal.

Regret, Its an APPEAL UNDER SECTION 29 OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT-2005

Maintenanance will not be rejected on any of these points.

The destitute wife has right to live in the conditions as you live.

Even in Ojha case mentioned above the SC ordered to pay arrears.

Your detective reports will not carry much force , you must find issues that no domestice voilence happened hence she can not claim any thing and other issues given by advocate Laxminarayan.

The opponent advocate has dug out proper citation but not able to press it properly and hence your stay is continued.Even though the citation has not given any opinion on session courts power but issued strict orders for payment of dues as per lower courts order.

PLEASE READ THE OPERATIVE PART OF THE JUDGMENT.

The interests of justice would be better served if the respondents appeal before the Sessions Court is heard and disposed of on merits instead of going into the residuary questions of the authority of the appellate Court to grant interim
orders or the legality of the decision of the Sessions Court to dismiss the appeal only on the ground
of the non- compliance by the respondent with the conditions of the interim order. The Criminal
Appeal No.23/2012 stands restored to the file of the Sessions Court.

35. We also direct that the maintenance order passed by the magistrate be executed forthwith in
accordance with law. The executing court should complete the process within 8 weeks and report
compliance in the High Court. We make it clear that such hearing by the Sessions Court should only
be after the execution of the order of maintenance passed by the Magistrate.
36. In the event of the respondents success in the appeal, either in full or part, the Sessions Court
can make appropriate orders regarding the payments due to be made by the respondent in the
execution proceedings.
The appeal is disposed off accordingly.
.J.
(J. Chelameswar) ...J.
(A.K. Sikri) New Delhi;
SUPREME COURT OF INDIA. ----------------------
IN THE MATTER OF  Shalu Ojha vs Prashant Ojha
 

You must therefore put your efforts on legality of the complaint in lower court. The arguments that ability of wife to earn or qualification will not help.

thanks for the information.