Introduction: The Paradox of
Appellate Justice
Imagine this: A
wife receives ₹4,000 per month maintenance. She’s satisfied. But her husband
appeals, saying it’s too much. The question that haunts appellate judges across
India is this: Can I increase the wife’s maintenance while hearing the
husband’s appeal to reduce it—even though she hasn’t asked me to?
The answer lies
in one of appellate law’s most profound yet overlooked principles: You
cannot appeal for someone else.
This article
explains why—and why this principle matters more than you think for the future
of domestic violence jurisprudence in India.
When Can an Appeal Be Filed?
Section 29 of the
Protection of Women from Domestic Violence Act, 2005 is brutally simple:
“There shall lie an appeal
to the Court of Session within thirty days from the date on which the order
made by the Magistrate is served on the aggrieved person or the respondent.”
Two parties can appeal:
1.
The aggrieved person (wife/children) —
Seeking more
2.
The respondent (husband) — Seeking less
But here’s the critical point:
Each party controls their own destiny. If you don’t fight for yourself, the
court won’t fight for you.
The Cornerstone: The
No-Cross-Appeal Doctrine
What Is This Doctrine?
Appellate law operates on a premise
so fair, so elegant, and yet so often forgotten: An appellate court has
LIMITED JURISDICTION when only one party appeals.
The Rule: When Party A
appeals but Party B does NOT file a counter-appeal or cross-objection:
•
✓ The court CAN examine issues raised by Party A
•
✓ The court CAN reduce the burden on Party A
•
✓ ✗ The court CANNOT modify the order in a
manner favorable to Party B
•
✗ The court CANNOT enhance relief to the
non-appealing Party B
•
✗ The court CANNOT pass any order benefiting
Party B
Why Does This Rule Exist? Three
Timeless Principles
1. Natural Justice — Audi
Alteram Partem (“Hear the Other Side”)
Before any order
is changed against a party’s interest, that party deserves: - Notice of the
proceedings - Opportunity to present arguments - Chance to cross-examine
evidence - Fair hearing
If the wife
hasn’t appealed, she hasn’t presented her case for why she deserves MORE
maintenance. To enhance her award without her participation violates the
most fundamental principle of fair process.
Real-world
example: Imagine a court increases someone’s property tax without hearing
them. That’s unjust. Similarly, increasing a wife’s maintenance without her
hearing violates natural justice.
2. No Reformatio in Peius (“No
Making Worse”)
When someone files
an appeal, they take a risk: the appellate court might scrutinize their case
more strictly and make their position WORSE, not better.
To prevent this
injustice, there’s a safety valve: Only the appellant’s position can be
“improved” through appeal. Non-appellants cannot benefit from someone else’s
appeal.
Example:
Husband appeals claiming maintenance is excessive. Wife hasn’t appealed. Court
reduces maintenance to help the husband. BUT the court CANNOT simultaneously
increase wife’s portion—that would allow her to benefit from his appeal without
her participation.
This prevents a
perverse outcome: Party A appeals, Party B benefits without fighting.
3. Finality and Certainty
Litigation must end. Law must be
certain.
When a beneficiary (wife) receives
an award and chooses not to appeal, that order becomes final for her.
She accepted it. She opted not to challenge it.
If courts could enhance awards
without appeals, litigation would never end. The losing side could always
point out an “opportunity for enhancement” and drag the case back through
courts endlessly.
The Practical Implication: What
CAN and CANNOT the Judge Do?
When Only the Husband Appeals
|
Judge’s Action |
Permissible? |
Why? |
|
Affirm the order
as-is |
✓ YES |
Wife hasn’t
appealed; her silence = acceptance |
|
Reduce maintenance
to husband |
✓ YES |
This benefits the
appellant (husband) |
|
Eliminate house
rent component |
✓ YES |
Reduces husband’s
burden |
|
Remand to trial
court |
✓ YES |
If procedural
defects are material |
|
Enhance wife’s
maintenance |
✗ NO |
Wife hasn’t
appealed; no cross-appeal filed |
|
Increase house
rent |
✗ NO |
Would benefit
non-appealing wife |
|
Award more
compensation |
✗ NO |
Without wife’s
counter-appeal |
|
Modify in wife’s
favor |
✗ NO |
Violates
no-cross-appeal principle |
The philosophical point:
The judge cannot be kinder to the non-appealing wife than the wife herself has
demanded. If she wanted more, SHE had the right to appeal within 30 days.
Issue 1: The Salary Slip Mystery
What Happens When the Respondent
Doesn’t Produce Proof?
The Scenario: Husband earns
₹35,000/month according to his own statement. But he never produces a salary
slip. The wife’s claim is based on his admission.
The Question: Can the trial
court accept this and grant maintenance based on ASSUMED income?
The Answer: YES — Through the
doctrine of Judicial Estimation.
Why Judicial Estimation Works for
Government Servants
For government employees—especially
defense personnel—judicial estimation is not just permissible, it’s practically
sound because:
1. Government Salaries Are
Transparent - Published pay scales - No room for manipulation - Rank-based
determination - Publicly verifiable
2. Income Is Stable and
Predictable - Unlike private business (which fluctuates) - Government
salary is fixed by law - Not subject to discretionary variations
3. Verification Is Easy -
Employment records at military headquarters - Pay commission determines scales
- No hidden sources typical
The Adverse Inference Principle
If the respondent is called to produce
salary proof and refuses:
The court can draw an adverse inference:
“You’re hiding something. I’ll presume you earn what the claimant stated—or
more.”
This prevents respondents from playing a game:
“I earn ₹35,000 in court but won’t prove it. Therefore, ignore me.”
Implication: The trial court’s
acceptance of ₹35,000 stated income, without insisting on salary slip proof, is
legally sound for government employees, particularly army officers whose
salaries are matters of public record.
Issue 2: The Asset Affidavit
Requirement—A Procedural Minefield
What Law Requires
Mandatory Requirement: In all
maintenance proceedings, both parties must file affidavits disclosing their
assets and liabilities: - All properties (real and movable) - Bank deposits
and investments - Loans and mortgages - Detailed financial status
Timeline: Maximum 4 weeks to
file; maximum 2 adjournments permitted.
When Non-Filing Vitiates the
Order (And When It Doesn’t)
The million-rupee
question: Does the absence of asset affidavits make the maintenance order
INVALID?
Answer:
Depends.
Scenario 1: Respondent Raised
Timely Objection
If the husband
objected in the trial court (“Your Honour, she hasn’t filed the asset affidavit
required by law”), and the magistrate ignored him:
This IS a
vitiating defect. The order can be set aside. Remand is appropriate.
Scenario 2: Respondent Raised
NO Objection
If the husband
sat silent in trial court and NOW raises this objection in appeal:
He has WAIVED
the objection. He cannot use it as an appeal ground. The principle: “You
had your chance to complain; you didn’t. You can’t complain now.”
Scenario 3: Both Parties Failed
Equally
If NEITHER party
filed affidavits (both defaulted):
Usually NOT
vitiating if: - Income was determined through other evidence - The
respondent wasn’t prejudiced - The order appears fair despite procedural laxity
MAY BE vitiating
if: - Income couldn’t be determined without affidavits - Procedure was
fundamentally unfair - Respondent was prejudiced by the defect
The Practical Point
Procedural defects matter only if
they caused actual unfairness. If the trial court determined income through
other means (government employment records, stated admission, circumstantial
evidence), the absence of affidavits becomes less significant.
Issue 3: Can Affidavit Evidence
Alone Prove Domestic Violence?
The Legal Standard in DV Cases
Fundamental Principle:
Domestic violence typically occurs within four walls.
There are no witnesses.
Police may not be involved. Medical treatment may not be sought. Documentary
evidence is rare.
Therefore, the law
recognizes a practical reality:
In DV Act cases, the wife’s
sworn affidavit is credible evidence—sufficient to establish domestic
violence—IF:
1.
It is internally consistent (allegations
don’t contradict each other)
2.
It is specific and detailed (not vague
generalization)
3.
It has logical coherence (events follow a
sequence)
4.
It is unshaken in cross-examination (if
the wife was cross-examined and maintained her version)
What Is NOT Required
•
✗ Medical certificates proving injuries
•
✗ Police FIR
•
✗ Hospital records
•
✗ Independent witnesses
•
✗ Photographic/video evidence
The Standard of Proof: Balance
of probabilities (meaning “more likely than not”), not “beyond reasonable
doubt” (which is for criminal cases).
Why This Matters for Appeals
When the husband appeals
claiming “insufficient evidence of domestic violence,” the appellate court
should examine:
•
Are the wife’s allegations specific or vague?
•
Do they contain internal contradictions?
•
Were they shaken in cross-examination?
•
Is there ANY corroborating evidence (even
circumstantial)?
The absence of medical/police
proof is NOT grounds to reject the affidavit evidence.
Issue 4: The Wife’s Safety
Valve—Section 25(2)
The Law That Prevents Final
Injustice
Section 25(2) of
the DV Act states:
“Any order made
under this Act may be modified or revoked on an application made by any
aggrieved person on account of any change in circumstances.”
What This Means
Even if the appellate court DOESN’T
enhance the wife’s maintenance (respecting the no-cross-appeal principle), the
wife is NOT powerless forever.
She retains the right to return to court
and seek modification if circumstances materially change:
Examples of “change in circumstances”:
- Child’s school fees increased from ₹2,000 to ₹5,000/month - Wife lost her job
(if she had one) - Medical emergency requiring expensive treatment - Respondent
got promoted and income increased significantly - Child’s special needs emerged
(disability, medical condition)
The Procedure
•
File application in trial court (not through
appeal)
•
Demonstrate the material change
•
Provide evidence
•
No time bar — Can be filed anytime
The Philosophical Point
The absence of a counter-appeal
NOW doesn’t mean the wife is forever locked into the original award. It means
she must come back and ask (under Section 25(2)) rather than fight now (through
counter-appeal).
This prevents a perverse outcome:
Encourages resolution today, permits adjustment tomorrow if needed.
Issue 6: Understanding Appellate
Court’s True Role
Trial Court vs. Appellate
Court: Different Functions
Many litigants
(and some judges) misunderstand what an appellate court does.
The Trial
Court (Magistrate): - Conducts full trial - Hears all evidence - Examines
witnesses - Makes FINDINGS of fact - Has broad discretion
The Appellate
Court (Session Judge): - Reviews the trial record - Does NOT typically hear
new evidence - Does NOT re-examine witnesses - REVIEWS findings for legal error
or perversity - Has LIMITED discretion
The Standard of Review
Appellate judges should NOT ask:
“What would I have decided?”
Appellate judges SHOULD ask: “Did
the trial court make a legal error? Or did it reach a finding so unreasonable
that no prudent judge would reach it?”
In other words: “Is the
finding perverse?”
Implication for Your Case
The trial court had discretion
to: - Estimate respondent’s income - Assess wife’s needs - Allocate maintenance
between wife and children - Determine proportionality
The appellate court should
interfere ONLY IF the trial court’s exercise was: - Arbitrary - Contrary to law
- Based on no evidence - Perverse
Not merely because the appellate
judge would have decided differently.
Issue 7: The Doctrine of
Waiver—Use It or Lose It
The Principle
If you don’t raise an objection in the
trial court, you’ve WAIVED it. You can’t raise it in appeal.
Practical Applications
1. Salary Slip Objection
If the respondent says nothing when
the wife introduces her proof (based on his admitted salary), he has waived the
“no salary slip” objection. He cannot raise it in appeal.
2. Asset Affidavit Objection
If the respondent didn’t complain
when affidavits weren’t filed, he has waived that objection in appeal.
3. Procedural Irregularities
If the respondent participated in
trial without objecting to procedural faults, he cannot suddenly complain in
appeal.
The Rationale
Fairness demands immediacy. If
something is wrong, you must object when it happens. You can’t remain silent
and ambush the court later.
Issue 8: The Fundamental
Principle—Natural Justice Must Be Observed
Audi Alteram Partem in the
Appellate Context
Even though the
wife hasn’t filed a counter-appeal, she remains a respondent in the husband’s
appeal.
Natural
justice requires: 1. Wife receives notice of the appeal hearing 2. Wife has
opportunity to present arguments (if she wishes) 3. Wife cannot be prejudiced
by her own default 4. Non-appearance shouldn’t be used against her
The Judge’s Responsibility
When hearing an appeal by the
husband: - Ensure wife is notified - Allow her to participate if she desires -
Don’t modify against her interests by default - Maintain impartiality
Issue 9: Burden and Standard of Proof
The Balance of Probabilities
Standard
In all DV Act proceedings, the standard is: Balance of Probabilities.This is LOWER than the criminal standard (beyond reasonable doubt = 99% certainty).
Who Bears What Burden?
The Wife: - Must prove she is
a victim of domestic violence - Must prove her needs - Burden is “balance of
probabilities”
The Respondent: - If
defending/contesting: Must prove his inability to pay - If disputing
allegations: Must produce counter-evidence - Same standard: Balance of
probabilities
Issue 10: The Curious Case of
Different Legal Regimes
Why DV Act Is Different
Domestic Violence Act is NOT
just another family law statute. It’s a protective statute based on
the recognition that:
1.
Domestic violence is pervasive and severe
2.
Victims need immediate legal protection
3.
Economic vulnerability is a weapon used in abuse
4.
Courts must prioritize victim protection
Therefore: - Broader
definition of “domestic violence” (includes mental cruelty) - Lower evidentiary
standards (affidavit evidence sufficient) - Faster procedures (case completed
within 60 days ideally) - Protection is paramount
The Ten Principles Summarized: A Checklist for Judges
As You Draft Your Order, Remember:
1. No Cross-Appeal =
No Enhancement - Wife didn’t appeal → Cannot enhance her award -
Fundamental fairness principle
2. Judicial Estimation
Is Valid - For government servants, stated income acceptable - Salary slip
proof not mandatory
3. Affidavit Evidence
Suffices - Medical proof not required in DV cases - Credibility = internal
consistency + specificity
4. Asset Affidavits
Are Procedural - Only vitiating if: (a) objection raised timely, (b)
prejudice caused - Not vitiating if both defaulted and income determined
otherwise
5. Wife’s Earning
Irrelevant Under DV Act - Even if wife earns well, maintenance not reduced
- Different regime from Section 125 CrPC
6. Section 25(2)
Provides Future Remedy - Wife can seek modification if circumstances change
- Independent of present appeal
7. Appellate Court
Doesn’t Retry - Reviews for legal error, not for different decision -
Interferes only if finding is perverse
8. Waiver Applies to
Procedural Objections - Not raised timely → Cannot raise in appeal - Lose
it or use it
9. Natural Justice
Must Be Observed - Wife gets notice; can participate; not prejudiced by
default - Audi alteram partem applies
10. DV Act Is
Protective, Not Transactional - Focuses on protection and dignity -
Different from maintenance as poverty relief
Conclusion: The Philosophy Behind
the Law
The
no-cross-appeal principle reflects a profound insight into appellate justice:
An appeal is
not a do-over. It’s not an opportunity for the judge to be kinder than the
parties themselves.
It’s a limited
right to challenge an order that harms you. If you don’t exercise that right,
your silence speaks: I accept this order.
When only the
husband appeals, he’s saying: “This is too much for me.”
The wife’s
silence—her failure to counter-appeal—says: “This is fair for me.”
The judge must
respect both voices by examining the husband’s case fairly (giving him
appellate scrutiny), while respecting the wife’s acceptance of the order
(refusing to enhance without her participation).
This
balance—giving the appellant fair review while respecting non-appellant’s
acquiescence—is the essence of appellate justice.
And it’s why the
no-cross-appeal principle endures as one of the most elegant and fair doctrines
in Indian appellate law.
For Your Practice
When facing a domestic violence appeal
where only one party appeals:
✓ Remember: This is a UNILATERAL appeal,
not a bilateral one ✓ Remember: Your powers are LIMITED by the no-cross-appeal
doctrine ✓ Remember: You can reduce, affirm, or remand—but NOT enhance for
non-appellant ✓ Remember: Procedural defects matter only if they caused actual
unfairness ✓ Remember: The wife has Section 25(2) remedy for future adjustments
✓ Remember: You’re not a re-hearing judge; you’re a reviewer
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