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Discussion > Family Law > Divorce > Time frame to file dv case after physical separation   Unanswered Threads Post New Topic

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There are 22 Replies to this message


fighting back


exec
[ Scorecard : 2367]
Posted On 24 May 2013 at 13:18 Report Abuse

Dear members,

Request your kind guidance,

Wife left my rented place in march 2012

then she filed RCR in july 12, i filed divorce in july 12

then she filed 125 in nov 12, then she filed HMA 24 in March 13

on 13 may 2013, she filed DV case against me and my family as respondents,

I wanted to know:

She left my rented place where we were staying in March 12, and she filed DV (18,19,20,21,22,23) in May 13 (the time frame is more than a year, i read in past threads in LCI, that DV ought to be filed with a year, is this right?)

she as asked for restraining orders in the DV against my parents, and in her RCR case, she has asked to stay with all of us (isnt this contradictory) RCR case has not even started, i am yet to file my reply.

She has asked for access to stridhan,  RTR, or rent in lieu of RTR,

she has mentioned all the allegations of cruelty in mahrashtra, but she has filed the DV in her hometown MP where she is staying. (doesnt the jurisdiction rule apply here?)

even 125 case has not been decided, not even HMA24, but she has asked for Rs 500000 as damages, Rs 200000 as medical expenses , Rs 12000 as monthly expenses, and Rs 3000  as rent, my whole saalary in hand is mere rs 17000, how will i arrange for this now, she is well qualified MBA, but she claims in the DV that she doent have work expernence and not able to work,

She has passed a competitve exam in her home state, but did not join the govt service for reasons i dont know, for which i have collected her pass result, she doesnt know that ihave her competitvie exam results as proof that she is able to work, and was certified by the govt of mp itself.

Guys pls guide me, thanks



ashoksrivastava


scientist
[ Scorecard : 1166]
Posted On 24 May 2013 at 15:09 Report Abuse

DV case is not maintainable after 1 year of no cohabitation. You may refer apex court judgement in Inder kumar grewal case delivered in Aug 2011.

regards ASHOK



Total thanks : 1 times

k . mahesh


advocate
[ Scorecard : 5637]
Posted On 24 May 2013 at 15:38 Report Abuse

Yes dv case isnot maintainable after one year 

http://www.lawyersclubindia.com/experts/Maintainability-of-dv-after-1-2-years-separation-desertion-257341.asp#.UZ88C9Knxpw

as already such issue was disscussed in our expert forum 



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fighting back


exec
[ Scorecard : 2367]
Posted On 24 May 2013 at 16:32 Report Abuse

@k mahesh, and ashoksrivastava....thank you for your valuable opinion, hence does it mean i can request the court for a dismissal of the case due to the period bbeing above one year? citing the Inder kumar grewal case delivered in Aug 2011.

 

thanks


Tajobsindia


Senior Partner
[ Scorecard : 18382]
Posted On 24 May 2013 at 16:38 Report Abuse

1.    I differ to opinions of @ Ashok Srivastava and @ K Mahesh citing a particular (Grewal's) SC ref. applicable in your brief.

2.    I say in given facts as in this query DV is maintainable as parties divorce has not taken place if a particular (Grewal's) SC ref. even if is quoted.

3.    But I  add to above and say in given facts DV is not maintainable on jurisdiction grounds as all alleged to be incidences are that of matrimonial home which is in different State. No domestic violence took place there ! Did you go there to talk to your wife? Did you even make social media contact in her home State? Did you write her a Indian postal serviced Letter? if no then how her State has jurisdiction ask the Court? SC and various HC's in India throws out DV complaints of Wives when she leaves her home which is in US or Europe or outside India and after comign back in Indian soils they file and Court at the time of throwing such Complaints says it should be filed in that Country and not here in India, same logic applies here with our desi abalas, why should it not I say! Violence as envisaged under domestic violence Law is never conceived to be ‘continuous violence’ nature in reference to this query and also refer to definition of 'violence' as envisaged in IPC. I mean violence is violence it is not apple and oranges when it comes to IPC and under quasi criminal laws. A slap is a slap for meaning  - interpretation of violence, it cannot change color when IPC used and when CrPC used.  Now, here is a case for some reasons a weaker spouse leaves her matrimonial home which is in other State of India and the left out spouse has made no contact instead filed divorce first and serviced the Notice of Divorce and after that a complaint under DV is filed with hint of RCR – now for any prudent person even per se careless inerpretation of chain of litigations can it be said that violence allegations which happened in a domestic relationship nature are continuous? I simply say NO. If someone here say YES  then bring across table how citing each Sections of prayers that this queriest placed in his opennign thread in reference to only this query atleast instead of giving faulty generic gyan.
Some half a dozen months back I have already analysed DV Section by Section refer to such multi page discussions and make notes accordingly.
If she has to file DV Complaint case she has to use your State’s jurisdiction. Why? Suppose she succeeds in right –to- residence ask MP Court will local Court send local Police to different State to secure such Protection orders which is never heard of atleast in a DV case?.

4.    RCR case can be dismissed citing certified copy of DV showing ‘scheming spouse’; one side she wants to stay and in same breadth asking protection Orders under different heads which is not harmonious to matrimonial cases such as quasi criminal DV and civil RCR case.

5.    It is not clear from this thread where she files RCR + S. 125 CrPC?

6.    It is also not clear from this thread where you have filed Divorce suit matter?

7.    It is strange that she has not transferred Divorce case to her State if I assume RCR + S. 125 CrPC + DV are filed in her State?

8.    As far her education is concerned MP State High Court itself has said highly educated spouse is disentitled for maintenance which every other State spouse takes reference of to dismiss her claims so use the same.

9.    Further ref. to your meager salary is concerned vis-à-vis her dream monitory claims you have to strategise how and when and where to use what and all these comes if you seriously make notes of reading all similar discussions in past in same Forum among various members instead of daily asking more or less same questions with little twist here and there. Yours is not a unique situation as demanding separate replies as same has been undergone by several queriest in say past 2 years here in public forum and all such queries were well discussed.

Hence read one by one past discussions – make notes or bookmark those discussions for future reference and if you feel you have unique question then ask we will satisfy your query with correct legal provisions.  




Total thanks : 1 times

stanley


Freedom
[ Scorecard : 3877]
Posted On 24 May 2013 at 17:16 Report Abuse

My View is that the DV case is not maintainable on grounds of jurisidiction and hence ought to be dismissed irrespective of the fact wether Divorce has been granted or not .  

There is also another judgement by Roshni Dalvi of the Mumbai high court but i dont think so those facts and your facts go hand in hand in order to stress on it . Here is the judgement .

Further to state a Judge can grant an order or dimiss the petition based on his fancies . And they would have to than go in for an appeal in a higher court .

Bombay HC: Relief under DV Act only if wife in domestic relationship & hence it has to be filed in reasonable time.

“A wife who lived in a domestic relationship earlier, but which ceases only because of any domestic violence can certainly file an application for such domestic violence that took place whilst she lived in that relationship. Such application is required to be filed within a reasonable time to show that relationship would give her the cause of action to sue under the D.V. Act for the reliefs under the Act. It cannot be filed after 1 year.”

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 160 OF 2011
Sejal Dharmesh Ved .. Applicant
Vs.
The State of Maharashtra & Ors. .. Respondents
Mr. Amit S. Dhutia i/b Niranjan Mundargi for the Applicant.
Mrs. A. A. Mane, APP for Respondent No.1­State.
CORAM : MRS. ROSHAN DALVI, J.
DATE : 7th MARCH, 2013.
P.C.
1. The applicant­wife has challenged the order of the Court of Sessions at Greater Bombay dated 27.10.2010 holding that her application under the Prevention of Women from Domestic Violence Act, 2005 (D.V Act) is not maintainable because she was not in any domestic relationship.
2. The applicant married on 04.05.1999. She lived with her husband in the US. There are two issues from the marriage. She returned to India on 11.02.2009.
3. She filed her application under the D.V Act on 18.01.2010.
4. The learned Judge has considered that under these circumstances, she having come to India in February, 2009 and having filed this application in January, 2010, there was no domestic relationship between the parties. The learned Judge has considered the definition of domestic relationship. Of course, that relationship is defined to be one of which the party then lived and had earlier lived. That would be during the subsistence of the union between them. The application under the D. V. Act could be filed, when the marriage union subsisted. That having came to an an end and long after the physical relationship came to be an end, she having returned to India, she cannot be taken to be living in any domestic relationship in India.
5. A wife who lived in a domestic relationship earlier, but which ceases only because of any domestic violence can certainly file an application for such domestic violence that took place whilst she lived in that relationship. Such application is required to be filed within a reasonable time to show that relationship would give her the cause of action to sue under the D.V. Act for the reliefs under the Act.
6. A wife who has returned from the USA and consequently from the domestic relationship and lived in India for one year cannot file an application with regard to that relationship after such time. Such wife cannot be taken to be in any domestic relationship. The order of the learned Judge is, therefore, correct. The writ petition is completely devoid of merits and accordingly dismissed.
(ROSHAN DALVI, J.)


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Helping Hand !


Divorce, Domestic Violence, Maintenance/alimony advisor
[ Scorecard : 5540]
Posted On 24 May 2013 at 17:44 Report Abuse

Section 23, where ex-parte orders can be issued, that makes it a circus company.

 

It has to be noted that:

 

 

Section 27 in The Protection Of Women From Domestic Violence Act, 2005
27. Jurisdiction.-
(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which-
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made under this Act shall be enforceable throughout India.
 
 
Also read Justice Shiv Narayan Dhingra judgment
 
Sharad Kumar Pandey vs Mamta Pandey on 1 September, 2010
 
 


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fighting back


exec
[ Scorecard : 2367]
Posted On 24 May 2013 at 18:17 Report Abuse

@helping hand, TAjobs, stanley, and others,


Thank you all for your valuable advice. appreciate your cooperation....

@Helping hand,

Sir, with regard to the reference you gave of section 27 about the jurisdiction, does it mean she can also file it in her place of residence that is MP, even after a year has passed and  no kind of voilence ever took place in her hometown jurisdiction ?  as TAJobs advised that the jurisdication has to be the place where the alleged voilence took place.  got a bit confused about this section 27 about the jurisdiction issue.

Thanks, appreciate your advice. 


Helping Hand !


Divorce, Domestic Violence, Maintenance/alimony advisor
[ Scorecard : 5540]
Posted On 24 May 2013 at 18:27 Report Abuse

Originally posted by : no pain no gain....

@helping hand, TAjobs, stanley, and others,




Thank you all for your valuable advice. appreciate your cooperation....

@Helping hand,

Sir, with regard to the reference you gave of section 27 about the jurisdiction, does it mean she can also file it in her place of residence that is MP, even after a year has passed and  no kind of voilence ever took place in her hometown jurisdiction ?  as TAJobs advised that the jurisdication has to be the place where the alleged voilence took place.  got a bit confused about this section 27 about the jurisdiction issue.

Thanks, appreciate your advice. 



Read again Section 27.


It clearly states what is jurisdiction and where and when DV complaint can be filed.


That's No.1


Second is giving citations, I have also given you one such citation, where husband is telling the court that Delhi was not the place of wife's residence, she is just residing in sister's place and has filed DV case to harrass the husband.


For that to be proved, that she has filed one complaint which is not sustainable in the eyes of law will take time.  Remember all citations are of HC and above HC ie SC.  Just try to imagine how much time it would have taken for the parties to get such n such order.


No doubt when you are not residing together how can domestic violence can take place.  She is in MP and you ar in Poona, how can domestic violence take place.  But one is forgetting, that  such case can be filed for what happnd while you both were living together.  Bottomline is it takes a lot of time to prove it, that too with Section 23 in place which is also included in the DV case it makes it rather tough for you to prove, judge will pass any order for residence with protection, and tell you can go for appeal, as DV case should be finished within 60 days, he will try to wash his hands of the case like this.  And your are not in some forin country to have jurisdiction issues, you both live in India only.



Total thanks : 1 times

rajiv_lodha


zz
[ Scorecard : 3658]
Posted On 24 May 2013 at 20:10 Report Abuse

Read Bhanot judgment........no 1 yr time limit



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