kay blue (kayblue) 06 August 2013

Second motion + dv

I am Living Separately on rented accomodation since August 2012. I have 2 kids 6 (son) and 4 (daughter) years age. Divorce Filed in August 2012. Statement for mutual done in october. first motion done in rohini session court in november, paid 50% money in court via DD. Girl accepted to vacate my parents house in 2-3 months. Girl didnt vacated house. My father is in hospital since 16th January 2013 in medanta till now due to some serious illness. I moved application U/S 151 CPC for vacation.

Girl denied to vacate and also denied second motion in court stating reasons as threat force and pressure. Girl is working in as a lecturer in a college and is PHD.

Mother moved a DV case in MM court due to voilence and torture done by her praying to get house vacated as she cannot afford expenses of girl and her parents who often come and torture too and she has to goto hospital everyday and girl locks her room etc etc etc.

First hearing, they said its shared household, boy is living here and girl cannot be evicted.

Next hearing they came, Girl filed reply that she needs commensurate accomodation. Court called me to file income affidavit and ordered her to file the same. We filed mine and gave them rent reciepts etc etc. Local commissioner verification was also done at my rental accomodation.

Third & fourth hearing, they got absent and asked another date

Fifth hearing they asked to dismiss the case on basis of DV act law that girl cannot be evicted. Husband is not party in the case and petition is void

My questions are:-

1. what to do with divorce now

2. what to do in DV to get her evicted. They keep coming with new new excuses on every date.

3. what if they come again with new excuse and what can it be?

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5 Replies

(Guest)

You've already paid 50% of final settlement which am afraid you will have to forget.

Eventually your MCD will be dismissed and you will have to flie a regular divorce petition and take it from there.

At the very moment when your mother filed DV case, you should have moved out.

Even now, you move out. Do not stay with your mother.

Now as she has asked for accomodation, and you have filed income affidavit, court will order you to pay her some rent, based on your income, [if she has not filed income affidavit] here your advocate should be very sharp in arguing about the educational qualification and income status of your wife. Though your wife is well qualified and earining money, the burden of proof lies on you to show the court that she is capable of earining money.

kay blue (kayblue) 06 August 2013

@Divorce Lawyer

Did you read what i wrote, I moved out before divorce first motion i.e. Aug 2012.

DV was filed Feb 2013. I have no problem in paying rent and i have all documents to prove that she is earning 60,000 p.m.based on her salary reciepts.

My question is how can court allow application to provide commensurate accomodation in 1 hearing and in 2nd hearing they file to dismiss case and she dont want commensurate accomodation. And court is not ready to listen even to our side

(Guest)

Originally posted by : kay blue
	@Divorce Lawyer Did you read what i wrote, I moved out before divorce first motion i.e. Aug 2012. DV was filed Feb 2013. I have no problem in paying rent and i have all documents to prove that she is earning 60,000 p.m.based on her salary reciepts. My question is how can court allow application to provide commensurate accomodation in 1 hearing and in 2nd hearing they file to dismiss case and she dont want commensurate accomodation. And court is not ready to listen even to our side

When you are capable enough to give answers and guide other people for their legal problems on the forum, I do not think you should be asking answers for your own legal problems.

Eg: https://www.lawyersclubindia.com/forum/Need-help-very-urgent-85929.asp

Coming back to why the court is not listening to you or to your wife. Your lovely wife has filed a lovely case of DV against you. There is something called as section 23 in DV. Here the court wont listen to your story etc, they will pass some order just like that. Do not comment LD answers here. If you have an opinion share it. You do not have the right to call any LD's or co-members reply/suggestion as wrong.

kay blue (kayblue) 07 August 2013

You are again wrong Divorce Lawyer, you are just replying without reading even

I said My mother filed DV case, not my wife

This is the difference, a good lawyer will accept the mistake and rather wont get irritated like you got. Secondly, the advice i gave was not a legal advice, it was a normal advice. Seeing that he will end up in mess, every human being has full right to show a right path to anyone, rest is his choice and at mercy of god

Tajobsindia (Senior Partner ) 07 August 2013

1. You / your side hurried in the affairs too soon without consulting seasoned advocate is my opening view since your case is from Delhi. You like this comment or not now is nobody’s case.
Reasoning:
If a party is permitted to resile from an undertaking given to the Court, in pursuance of an agreement arrived at between the parties, without any penal consequences, the same would completely destroy the sanctity attached to such solemn undertakings, and would encourage dishonesty and disrespect for the judicial process.

Remedy:

A. Your side should have moved to D HC under its Contempt of Court (Civil) jurisdiction using S.2, 10 and 12 of The Act, 1971 not only seeking relief as to why she should not be held guilty of contempt of Court as she has breached her undertaking given to the learned APJ but also praying for heavy fine. Both would have been allowed by Ld. Justice(s) of D HC is my firm view.

B. Should have filed Eviction Petition against her based on her undertaking instead of going under DV route via MIL pleas!

C. Should have shown that you as joint petitioner has fulfilled your part of the undertaking (50%) as mutually agreed between joint petitioners to S. 13 B (1) HMA petition.

Rest what you people are doing now is simple time consuming work up which is going to grey your side's hair more than actually seeking desired relief.

I choose not to directly reply para wise to your three specific que. as my above brief reply holds good grounds if your case is of Delhi and there are catena of good Judgments on resiling situations from D HC itself based on similar facts which your Lawyer ought to know and could have guided you in right direction.