How to fight false dv case ,how to get divorce
Shahnawaz
(Querist) 19 July 2012
This query is : Resolved
I got married in 2006, it was love marriage. Since both of us where from different religion we got our marriage registered under Special marriage act. After few months of marriage differences crop up between us due to cultural differences .We both tried to sort out these issues initially, but after an year distance grew between us and one thing lead to another. We were graced with Baby boy in 2007 but things turned worse after that as she had to sit in home for an year and was not able to manage home and kid. Whenever quarrel happened I would be the first to reach compromise but situation will remain the same, she always insisted that I should not take care of my parents financially and I should behave like how her Father and Brother behave. Finally in 2009 during my Mother visit to our home because of small issue between us ,she left the house and went and stayed at my friend place for a day and informed me I should send my mother home immediately or else I will have to fear consequences. I did not listen to her demands and she came home with constables and said I asked dowry from her and beaten her. Constables and my local guardian dissuaded her from filing complaint and I had to send my mother home. And after these episode frequent fights became common for small issues, I kept quite for my son’s future. Though she was earning more than me I had to bear all the expenses of marital home and without my knowledge she bought properties at her hometown as well as took loan for her brother.
Situation became so ugly that though we were living under same roof we didn’t had any relation for a year. Finally in March 2010 I tried to persuade her with divorce by mutual consent with any condition she wanted but she refused that and filed 498 A case against me and my family. She went to my office and created a major scene there stating I cheated on her and they should fire me from the Job. I avoided arrest and secured bail ,and filed for divorce in Family court. Once the trial began we both got ready for divorce , but before the Judge delivered the judgment better sense prevailed we thought of giving second chance to our marriage. We withdrew our application from family court but the criminal court case was on. Meanwhile she got an opportunity to go for overseas assignment ,I insisted on her not going but she justified it with her commitments and I had to obey her as 498 A was on. She stayed there for 2 years meanwhile I travelled twice to see my son ,but distance between us were as it is only thing we kept quite. I attended trial in court for 2 years regularly but she refused to come and withdraw the case. In 2012 she came back without my knowledge and stayed with her parents ,upon my insistence she came to trial court and turned hostile and I got aquitted. We tried to forget our differences by talking through but we didn’t succeed. I asked her to come back to my house which she refused, I tried talking to her brothers and parents but no result. Finally I filed a divorce petition in family court in february and managed to get visitation rights. She also filed for divorce and asked for maintenance for helself and the kid. At the same time she filed a Domestic violence case against me in Magistarte court.
Our mediation in family court has failed as they insisted upon lump sum payment instead of monthly payment.
My question’s are:
• Is she liable for Maintenance when she is earning more than me and had got property worth 1 crore.
o (I have her pay slips, property documents in case it is needed in court)
• How maintenance will be calculated for my son.
• Is it necessary for me to pay maintenance (For Son) in lump sum or I can ask for monthly payment.
• Will the family court grant me divorce on the ground of cruelty as she has filed false 498(A) and had not been staying with me for last 2.6 years?
• What preparation I should do to fight my case in false DV case?
(I have all the documentary proof of how I look after household, medical expenses all these years for her and my son)
• As both the cases are running parallel, do I need to pay two maintenance in case of Judgments’ from court?
• How can I prove my innocence in false DV case ? What kind of documents and arguments I will have to gather?
Adv Archana Deshmukh
(Expert) 19 July 2012
You will not have to pay her any maintainance if you can prove that she is earning more than you and having property of Rs 1 crore as alleged by you. You will have to pay for maintainance of the child and you can opt for monthly payment. The quantum of child maintainance depends upon the needs of the child, his expenses and also the income of his mother will be taken into account.
You can file for custody of your child or for visitation rights.
As far as fighting DV is concerned, it depends upon what reliefs she has claimed. The issue of maintainance is answered above.
Shahnawaz
(Querist) 19 July 2012
Hi Archana,
Thanks a lot for your precise reply,in DV case she has asked for monthly maintenance of 15000 for the kid who is just 4 years old.Can you please suggest ,since both maintenance case is in different courts do i need to pay child maintenance for both the judgement?
Adv Archana Deshmukh
(Expert) 19 July 2012
The court will grant only the amount which is needed for the child considering that the mother is also earning you won't be required to pay any hefty amount alone. She has to share the responsibility of maintaining the child. The amount awarded in the judgment which comes first shall be considered by the court in the other case while deciding the issue and you may have to pay only one maint.
Devajyoti Barman
(Expert) 19 July 2012
1. It is regular income and not the property which is taken into account. However if the property is income generating then the court would consider that.
2.As per status of both of you.
3. There is no provision for lump sum maintenance.
4. This is not enough ground for divorce.
5. Fight DV case on merit.
5. No it gets adjusted with each other.
6. Without knowing full facts it is not possible to guide you to fight the case.
Shahnawaz
(Querist) 19 July 2012
Hi Devajyoti,
Thanks for your response,sorry i forgot to mention that my wife has also filed divorce petition in family court in that case will there still be problems in divorce and how much time it would take.
