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Karthik (Sr. Manager)     18 October 2014

Legal help needed plz

My father's sister is facing a peculiar problem. Her age is 50 and her husband's age is 62. They are married till last 30 years. Everything was fine till his husband was working. Problem started after his retirement. Gradually he became intolerant on his wife and started physically and mentally torturing her. They have two children, one of them is married. Both of their sons stays separately. The problem intensified last 6 months and he also has stopped her food with continuation of physical and mental torture and constant threatening to throw her out of house. Also he is pressuring her for divorce. Somehow she manages with the money supported by her two sons for her food. Also he has already filed a false police complaint that her wife is non cooperative to cook food for him and verbally misbehaves with him . Next week he is also planning to file a divorce case with this reference.

In this situation she has decided to move to his elder son's residence and do the following things:

a. File a FIR on 498a in the nearest police station citing physical and mental torture since last 2 years, denial of food and basic amenities and threatening to sign divorce and threatening to be thrown out of house by her husband. --- people telling that after 30 years of marriage 498a does not stand. But apart from the years fact all other cruelty ground stands true....need clarification

b. File a Domestic Violence case in sub divisional court against her husband to seek maintainance.

Is there anything more that can be done ???

In this case as the husband has already moved to police station and court for divorce before wife approaches in the above two ways , is there any chance that wife's pleas will not be given much importance in above cases and will treated just as only revenge action by wife??? Note: both the sons are her side and ready to give any witness if required



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 4 Replies


(Guest)
Originally posted by : Karthik




a. File a FIR on 498a in the nearest police station citing physical and mental torture since last 2 years, denial of food and basic amenities and threatening to sign divorce and threatening to be thrown out of house by her husband. --- people telling that after 30 years of marriage 498a does not stand. But apart from the years fact all other cruelty ground stands true....need clarification

If already decided to quit marriage, then may file 498a, but 498a is dowry prohibition law, there appears to be no dowry demand and as they are married for 30 years, the case will eventually get dismissed.  In such case, allegations made also will fall flat on their face, and will amount to lying under oath, for which 7 years imprisonment is there as punishment according to law.


b. File a Domestic Violence case in sub divisional court against her husband to seek maintainance.

Can file domestic violence case [directly in court] and ask relief of residence or rent or alimony/maintenance, can get police protection too, if proved that DV has occurred then husband maybe imprisoned/or fined.

Is there anything more that can be done ???

In this case as the husband has already moved to police station and court for divorce before wife approaches in the above two ways , is there any chance that wife's pleas will not be given much importance in above cases and will treated just as only revenge action by wife??? Note: both the sons are her side and ready to give any witness if required

Crying baby gets milk first, same rule applies here too.  [yes witnesses can be used in DV case]But it would be wise to approach problem tactical methods to pacify with husband.  Its better for your father's sister that she controls her mouth/tongue.  There is no smoke without fire.  When husband was in service, most of the time he was out of house, now retired he has full attention of wife.  All women are the same except mad women, who do not speak/open their mouth.  Constant nagging from wife will lead to husband also to retaliate.  Strict control is to be maintained over tongue.  One thing leads to another, like chain reaction.  It will look foolish to stand before judges who are hardly 30-35 years of age.  Its better to pacify with husband than to file cases and roam endlessly to court in old age.  In the age when they are expected to set good examples to own children and society, they are acting like baboons.  You/their kids should counsel them and/or take professional help of counsellors.


If they do not listen to above advice, then ghoda hai maidaan he.  Good luck.

Adv. Chandrasekhar (Advocate)     18 October 2014

First I clarify that in law, there is no rule that who approaches the court will get the benefit.  The most of the women in India are tolerant and introvert and try not to go to court and resolve the matter and when the things become intolerable, then only they think of seeking help from their relatives and never think of going to court.  That is more true in respect of a woman who spent 30 years with your uncle and gave birth two children.  I doubt even after facing such misery, she is willing to go to court.  After seeing her misery, you and her children might have thought of approaching the court.  If she approaches the court after her husband approached to the court by filing divorce, she is not facing any disadvantage.  What is the requirement at present - she wants maintenance and residential rights (I doubt very much about her desire to stay with him under the same roof facing the humiliation).  Both these things along with protection orders, if she needs, can be obtained in domestic violence case.  So, file the domestic violence case in the court directlly and get interim relief of maintenance immediately.  Section 498-A is not a proper solution for various reasons including the reason that the case will be argued by state counsel on her behalf, who will not put his heart to win the case.  Further, in your aunt's case it has to be explained that the violence is not attributable to dowry demand, but there is such physical and mental cruelty perpetrated against her in extreme ends.  It is difficult to prove these facts in criminal courts, beyond reasonable doubt.  Hence, I suggest that drop the idea of S. 498-A, but file DV case and get the relief what she requires.  If he has got any immovable properties and he is proposing to sell them,  she can get stay against such dispossesion.  The  divorce case filed by him should be contested by her very seriously.  In DV case, the first stage is mediation and  the judge will intervene and put his authority and force to make your uncle understand how he should treat his old wife.   

1 Like

Karthik (Sr. Manager)     19 October 2014

Thanks for your detailed and definite reply. Hence I understand that that the only thing she can do is to file a DV ... 498a is not perfectly suitable for this case. Some more queries:

i) Apart from 498a is there any other law which safeguards her provide justice for the continuous physical and mental torture since last couple of years? I think even if 498a not applicable but there should be any other law which addresses this harrassment by husband on wife irrespective of age.(Her two sons are ready to provide witness of his torture)

ii) In case of stay against the selling of immovable property by him what is the procedure ? Will this clause be added to the DV verdict?

Adv. Chandrasekhar (Advocate)     19 October 2014

In d.v. act she can get 1. Monthly maintenance 2. Residential rights 3. Protection orders 4. Stay against dispossession of property 5. Recovery of stridhan 6. Custody of children 7. Damages against physical and mental cruelties perpetrated against wife.  You can pick up the reliefs whatever you want on the basis of facts of the case.


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