What is remedy against order passed by appellate court under Section 29 Domestic Violence Act? Appellate court directed to pay seven lakh as compensation and sixty thousand rupees per month as maintenance in domestic violence case. My father in law is an advocate in the district court XXX. He has filed an appeal against the order of judicial magistrate first class in the domestic violence case. As an interim major the court directed to pay one lakh for the meeting of expenses borne by the wife and also pay maintenance at the rate of ten thousand rupees per month.
My father in law filed an appeal in the sessions court. The sessions judge directed to pay seven lakh as compensation and sixty thousand rupees per month as maintenance without appreciating the materials on record. I am a teacher and my salary is about ninety thousand per month. Out of which thirty thousand deposits in the NPS and twenty thousand as EMI for the home loan. If I pay sixty thousand rupees as maintenance how could I survive?
Asked from: Kerala
The appellate court's decision to award seven lakh as compensation and sixty thousand per month as maintenance in disposing of the appeal under Section 29 of the Domestic Violence Act seems erroneous. The amount of maintenance must be fixed based on the net income of the husband.
The Hon'ble Supreme Court, in Kulbhushan Kumar v. Raj Kumari, (1970) 3 SCC 129, has held that 25% of the husband's net income would be just and proper to be awarded as maintenance allowance to the wife.
As a salaried person, the amount of monthly allowance should be fixed after deducting your liabilities. The contribution to the new pension scheme is not a liability, but you are required to contribute a fixed amount per month. The EMI of the home loan is your liability. These two constitute fifty thousand per month as necessary expenses, which cannot be ignored by the court while deciding the monthly alimony.
Also read: Revision is not maintainable against an order passed by judicial magistrate in DV Act
Prima facie, the decision of the appellate court seems erroneous and is liable to be set aside. You should move a petition in the High Court under Article 227 of the Constitution of India to set aside this decision. Proceedings under the Domestic Violence Act cases are quasi-civil in nature; hence, you must approach the High Court under Article 227 instead of Section 482 of the Code of Criminal Procedure.
In Santhosh v. Ambika R., (2015) SCC Online Ker 26542, the Kerala High Court held that a party aggrieved by the order of the appellate court under Section 29 of the DV Act must file a revision under Article 227. Remedy against order passed under Section 29 Domestic Violence Act is to file revision to the High Court.
In your petition, you must adduce proof of your loan liability and monthly contribution to the new pension scheme. If you have any other liabilities, such as medical expenses for yourself or any dependent, you must also include them in the petition. You need to prove that the amount of monthly maintenance fixed by the appellate court was determined without the application of judicial mind and in violation of settled law regarding the determination of monthly alimony. For more legal help please visit Kanoon India.
Also read: Can wife claim residence order under the DV Act after the decree of divorce?
