Family Appeals, Custody and Maintenance: Questions and Answers

From the date of the judgment, but the time spent obtaining the certified copy is left out of the count under Section 12 of the Limitation Act. So apply for the certified copy at once, because the days before you apply are counted. The Delhi High Court held in 2023 that the 30-day period in Section 19 of the Family Courts Act applies to family court decrees, not the 90 days in Section 28 of the Hindu Marriage Act. Do not plan on the longer period.

Not necessarily. File the appeal with an application for condonation of delay under Section 5 of the Limitation Act, explaining the whole period of delay with dates and documents: illness, late knowledge of the decree, a lawyer's failure. Courts are fairly understanding in matrimonial cases, but much less so if the other spouse has already remarried relying on the decree. A vague reason like 'I was upset' usually fails. Attach whatever proves the reason, such as medical records or the date you first saw the decree.

Both routes exist, and the choice matters. You can apply to the family court under Order 9 Rule 13 of the Code of Civil Procedure to set aside the ex parte decree, within 30 days of learning of it if the summons was never properly served. Or you can appeal to the High Court. If you appeal and the appeal is decided on any ground other than withdrawal, you lose the Order 9 Rule 13 route. Where service was clearly defective, going back to the family court is often quicker.

Concrete errors in how the evidence was read. The appeal is a rehearing on facts and law, but the bench will not retry the case from scratch. Appeals succeed when the family court ignored admissions in cross-examination, relied on allegations never proved, applied the wrong test for cruelty or desertion, or decided without the evidence it needed. Appeals that only repeat the marriage story rarely do. Our page on family court appeals in Delhi explains each stage.

The certified copy of the judgment and decree, and copies of the full family court record: petition, written statement, replication, affidavits of evidence, cross-examination, exhibits and the order sheets. Add any income affidavit filed under Rajnesh v. Neha. When Advocate B.K. Singh prepares a family appeal, he reads every page of the cross-examination first, because the answer that wins an appeal is usually buried there and not in the judgment. Missing pages from the record delay the hearing.

The appeal can be heard and decided without you. Engage a lawyer, file your reply or written submissions, and if you also want part of the decree changed, such as the alimony, consider cross-objections, which have their own time limit from service of the notice. Check the case number, next date and orders on the Delhi High Court's own website, since this site is a law firm's and not the court's. Ignoring the notice also means losing the chance to ask for interim maintenance during the appeal.

It can pass interim orders, and you should ask for them in the first hearing. The usual request is that the decree be stayed or that neither party remarry until the appeal is decided. Section 15 of the Hindu Marriage Act already allows remarriage only once the appeal period has ended without an appeal, or the appeal is dismissed, but an express order removes doubt. Tell the court at once if you learn the other side is planning a wedding.

Yes. Section 24 of the Hindu Marriage Act allows maintenance and litigation expenses during proceedings under the Act, and the appeal is part of those proceedings. File the application in the High Court with the income and asset affidavit required by Rajnesh v. Neha. Maintenance already being paid under Section 144 BNSS or the Domestic Violence Act is taken into account, so disclose every earlier order. An application filed with the appeal gets heard sooner than one filed months later.

No. Irretrievable breakdown is not a ground for divorce under the Hindu Marriage Act, and the Supreme Court held in Shilpa Sailesh v. Varun Sreenivasan (2023) that only the Supreme Court can dissolve a marriage on that basis under Article 142. The High Court can, however, treat long separation and failed reconciliation as part of the evidence of cruelty. So the appeal must still be built on a statutory ground. Read our guide on irretrievable breakdown.

Not by a regular appeal. Section 19 of the Family Courts Act excludes interlocutory orders, and the Delhi High Court treats interim maintenance orders under Section 24 as interlocutory, so the challenge is a petition under Article 227. The High Court interferes only if the order is clearly perverse, for example where the income was assumed without any basis. Keep paying while you challenge it, because unpaid interim maintenance can lead the family court to strike out your defence.

By revision, not appeal. Section 19(4) of the Family Courts Act lets the High Court examine maintenance orders passed under the criminal procedure chapter, now Section 144 BNSS (old Section 125 CrPC). Treat 90 days from the order as the working limit and file earlier if recovery has started. The revision court checks legality and obvious errors, not every rupee of the calculation. Our page on maintenance revisions covers what it looks at.

There is no fixed formula. Courts look at both spouses' income and assets, the standard of living during the marriage, the children's needs, and the husband's other genuine liabilities, as set out in Rajnesh v. Neha (2020). In Kalyan Dey Chowdhury (2017), the Supreme Court treated about a quarter of the husband's net salary as a reasonable benchmark for a wife, but it is not a rule. School fees, rent and medical needs, proved with bills, move the figure more than general complaints. See our guide on how maintenance is decided.

Yes, you can file under more than one law, but you will not be paid three times over. The Supreme Court said in Rajnesh v. Neha that a wife must disclose earlier proceedings and orders, and the later court adjusts or sets off what is already being paid. Filing everywhere also multiplies hearings and costs. Many lawyers prefer one main maintenance claim, usually where the divorce or DV case is already pending, with the others used only where they add something real.

File an execution application in the same court under Section 144(3). The court can issue a warrant to recover the amount as a fine, attach salary or property, and send the husband to jail for up to a month for each month's unpaid amount. Apply within one year from the date each amount fell due, or that month's claim is lost. Keep a simple table of dates and amounts with bank statements. Jail does not wipe out the arrears; the amount stays payable.

Usually not. Courts look at earning capacity, not just the payslip on the day of the hearing. The Supreme Court said in Anju Garg v. Deepak Kumar Garg (2022) that an able-bodied husband must earn, even by physical labour, to maintain his wife and children. Show his qualifications, past salary, bank statements, lifestyle and the timing of the resignation. A sudden loss of income just after a maintenance case often helps the wife's case. Ask the court to direct him to file his income affidavit with documents.

Not automatically. Section 144(4) BNSS denies maintenance to a wife who refuses to live with her husband without sufficient reason. Cruelty, dowry demands, harassment by in-laws or the husband's relationship with another woman are all sufficient reasons. The court asks why you left, not who walked out of the door first. Record your reasons early, in a complaint, a police diary entry or messages, because a reason first raised years later is easy to attack.

Yes. The Supreme Court held in Mohd. Abdul Samad v. State of Telangana (2024) that a divorced Muslim woman can claim maintenance under the secular provision, old Section 125 CrPC, now Section 144 BNSS, alongside her rights under the Muslim Women (Protection of Rights on Divorce) Act 1986. The usual conditions apply: she must be unable to maintain herself and the husband must have means. File in the court where you live, and disclose any amount already received at the time of divorce.

Yes, in most cases. Under Section 144 BNSS, a major child gets maintenance only if unable to maintain herself because of a physical or mental condition. But the Supreme Court held in Abhilasha v. Prakash (2020) that an unmarried Hindu daughter can claim from her father under Section 20(3) of the Hindu Adoptions and Maintenance Act until she marries. A family court can hear that claim. File it before the existing order lapses so there is no gap in payments.

Yes. An order under Section 144 BNSS can be altered under Section 146 BNSS (old Section 127 CrPC) when circumstances change, and orders under the Hindu Marriage Act can also be varied. A child growing older, higher fees, medical needs and the father's increased salary are all changes the court considers. Attach the fee receipts, the old order and whatever you know of his current income. Do not wait years; arrears of an increase usually run from the date you apply, not from when fees went up.

No. The child's right to maintenance belongs to the child, and a mother cannot sign it away in a divorce settlement. The court may refuse to record a settlement that leaves the child unprovided for, and the child can claim later even if the settlement says otherwise. A clean settlement deals with the child separately: a fixed sum invested in the child's name, or monthly support until a stated age, with education costs spelled out in writing.

Yes, if you show that more contact is in the child's interest. In appeal, the Division Bench looks at the child's age, the bond with each parent, distances, school timings and how earlier meetings went. Overnight stays, holiday sharing and regular video calls are often added once a child is past the toddler years. Turning up for every meeting on time and keeping a record of them is the strongest argument. See our guide on how visitation works.

Apply to the court that passed the order to enforce it, with a dated list of every missed meeting and the messages around it. The court can fix a supervised venue, order make-up time or impose costs, and persistent denial is a recognised reason to modify custody itself. If the order was passed by the High Court, a contempt petition is possible. Do not stop paying maintenance in retaliation; the two obligations are separate and courts dislike self-help on either side.

Not by itself. Custody is decided on the child's welfare, and a working parent with a reliable support system, such as a grandparent at home, is common and accepted in Delhi courts. The court looks at who has actually been caring for the child, the stability of the home, schooling and health. The other parent's offer to give up work is weighed against the history, not just the promise. Show the daily routine with school records and the names of caregivers.

Usually when the child is with the other natural parent and the dispute needs detailed evidence. Habeas corpus for children is maintainable, as the Supreme Court confirmed in Yashita Sahu (2020), but the High Court decides it summarily. Where the child is safe with a parent and welfare depends on contested facts, the court often leaves the parties to a guardianship petition, sometimes with interim visitation. Urgency, a foreign court order or a very young child improve the chances. See our guide on habeas corpus for child custody.

Apply at once to the family court, or to the High Court if a matter is pending there, for an order restraining removal of the child from India and directing deposit of the child's passport. Write to the passport office about the pending dispute. India is not a party to the Hague abduction convention, so once a child leaves, getting her back is far harder. If you fear a departure within days, Advocate B.K. Singh can advise on an urgent application; contact us with the travel details you know.

The child's welfare, not just the fact of removal. In Nithya Anand Raghavan (2017), the Supreme Court held that a court in India need not order return mechanically, though a foreign court's order is a weighty factor and the court can order return after a summary inquiry, as in Lahari Sakhamuri (2019). The child's age, schooling, time spent in each country, citizenship and your reasons for leaving all matter. Our page on child custody in Delhi covers both sides.

You have no automatic right, but the child's welfare can still keep the child with you. The father is the natural guardian, yet the court decides custody on welfare, and grandparents who have raised a child for years are not easily displaced. File a guardianship petition under the Guardians and Wards Act in the family court where the child ordinarily lives, and ask for an interim order. Expect the court to allow the father regular contact whatever the final outcome.

Usually before the Sessions Court first. Section 29 of the Domestic Violence Act allows an appeal within 30 days from the date the order is served, and an appeal is generally available against interim orders too. The High Court is approached in revision or under Section 528 BNSS after that, or where the order is plainly without jurisdiction. Keep paying meanwhile, since the order can be enforced against you and arrears weigh heavily against you in the appeal. Our page on DV Act orders in the Delhi High Court explains each remedy.

Not summarily, if the house is her shared household. In S. Vanitha (2020), the Supreme Court held that the Senior Citizens Act cannot be used to defeat a woman's right of residence under the DV Act without considering it. The tribunal can still protect you: it can order your son to leave, direct alternative accommodation for her, or limit her to part of the house. Raise both laws together in one forum and disclose the DV case openly.

It can, under Section 24 of the Code of Civil Procedure, but inside Delhi it rarely does so for the husband's convenience. Courts give more weight to the wife's convenience, a child's needs and safety concerns. Distances within Delhi, plus video hearings, often lead to a refusal. Moving a case to another state's court can be ordered only by the Supreme Court. Ask for video appearance first; it is often granted without a transfer.

Possibly, but on the criminal side. DV and Section 144 BNSS proceedings follow criminal procedure, so transfer between districts is sought from the High Court under Section 447 BNSS (old Section 407 CrPC). The court asks whether a fair and convenient trial is possible where the case is, and whether hearing linked cases together saves time for everyone. A request that only suits one spouse's travel usually fails. Wives seeking transfer for safety or because of small children get more sympathy.

Yes, a Delhi court can order it, and the case can be filed where you live. Notice can be served through the Indian mission, email and other modes the court allows. Enforcing the order abroad depends on that country's law, so the practical pressure usually comes from his property and bank accounts in India, his visits home and, in suitable cases, steps involving his passport. Our page on NRI matrimonial disputes covers the options.

Usually yes. Under Y. Narasimha Rao (1991), a foreign divorce is recognised where both spouses took part and consented, or the respondent contested on grounds available under the law under which they married. A mutual consent decree in which both signed generally meets that test. Keep an apostilled copy of the decree and the settlement. If property, a marriage registrar or a visa officer raises doubts, a declaratory suit in the family court gives certainty. See our guide on foreign divorce decrees.

No. Mediation is voluntary, and you can walk out of it without any adverse effect on your appeal. It is held at the Delhi High Court Mediation and Conciliation Centre, Samadhan, and what is said there is confidential and cannot be used in court. Many custody and alimony disputes do settle there, because both sides control the terms. If you do settle, the terms are recorded and the court passes orders on them. See our guide on mediation in family disputes.

Go back to the court that recorded the settlement. Terms accepted by the court, especially undertakings, can be enforced by execution, and breach of an undertaking given to the High Court can be punished as contempt. The court may also refuse to pass the next step, such as the second motion or a quashing order, until he pays. When Advocate B.K. Singh drafts a family settlement, he ties each instalment to a court event, so that the last payment is made by demand draft at the final hearing.