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Discussion > Family Law > Others > wife left matrimonial home   Unanswered Threads Post New Topic

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There are 10 Replies to this message


Suchitra. S


Advocate
[ Scorecard : 4727]
Posted On 06 March 2011 at 09:07 Report Abuse

I need advocate's advise to this query. I am representing husband in this case and his wife has filed a DV case against him. His wife has left the rented premise where they both used to reside after vacating the home when her husband was out of station. She has also taken the rent deposit from the land lord and has signed on the document saying she has collected the deposit.  They have a 4 year old daughter and she has taken daughter along with her to her maternal place by collecting TC from the school. Everything she has done without informing her husband. When he came back, he was left with no clothes, no home to reside as she had left the home with all the belongings of home. Now, she has applied for interim maintenance, protection order, residence order, and compenation for the loss she incurred because of loss of pay. 

Please guide me the line of argument for this case. I am of the opinion that as she has left her home on her own, she is not eligible for miantenance. Husband has alleged that she has kidnapped his child. She is not allowing him to meet his chid. 



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Arup


UNEMPLOYED
[ Scorecard : 11092]
Posted On 06 March 2011 at 09:41 Report Abuse

" as she has left her home on her own, she is not eligible for miantenance " -  very correct.

" Husband has alleged that she has kidnapped his child. She is not allowing him to meet his chid. " - pray for visitation right.



Total thanks : 1 times


Legal Fighter


Advocate
[ Scorecard : 1752]
Posted On 06 March 2011 at 09:50 Report Abuse

tell your client to file a criminal case u/s 406 IPC against wife.



Total thanks : 2 times


Member (Account Deleted)


None
[ Scorecard : 5012]
Posted On 06 March 2011 at 10:27 Report Abuse

 

 

@Suchitraji,

As you said that ,as she has left her home on her own, she is not eligible for maintenance.


Yes, she is not entitle for maintenance but you have to prove in a court that she had left home ,so be prepared for a good cross examination.


First know why she had left home? Before In a court first try to know this matter if possible. If possible try to   reconciliation As you said “ She has also taken the rent deposit from the land lord and has signed on the document saying she has collected the deposit. “ This witness (land lord ) is helpful to know the exact fact as at that time her husband was out of station. Ask land lord for further details.


You said,”Husband has alleged that she has kidnapped his child. She is not allowing him to meet his chid.”

 

Then Husband have to pray for visitation right as arupji earlier said. For visiting rights wait for tajob (Rajeev Rakheja) ,last month an iPod winner  advise as he is having expertise in child visiting rights related cases. Also read this link: http://www.lawyersclubindia.com/forum/Re-Child-Custody-29465.asp

 

 



Total thanks : 2 times


Damayanti


Unemployed
[ Scorecard : 901]
Posted On 06 March 2011 at 10:52 Report Abuse

ld. Suchitra Madam,

 

This is really an unusual scenario.

 

Will you please tell following:-

 

When, why and where did the Husband relocate himself alone from his rent premise called his/his wife's matrimonial home?

Was he relocated due to his job? was it to another city/country?

and for how long was he relocated, before wife vacated the rented premise?

 



Total thanks : 1 times


Ambika


NA
[ Scorecard : 1925]
Posted On 06 March 2011 at 11:03 Report Abuse

 

Sorry for intrusing Suchitra ji, am not an advocate. But would am wondering on the following lines: 

1) Wife left home: says nothing much about why she left home.  she would have given some strong reason for her leaving home in the absence of husband. It may be possible the presence of husband may not have allwed her for some reason not to leave home even if the cicumstances may have been intolerable in the household ( Guess work ofcourse, but you sure know better that these things need to be taken care of ) 

2) If wife leaves home, how she can leave the child alone? She has to take the child with her when she is vacating the house. Hence can it be called Kidnapping? ( The answer would be educative for me as well) 

3) who had given the deposit to the landowner to begin with and who signed the contract papers for renting the house? The landlord would have either known the circumstances in which wife may have lived? If the papers had been signed by the husband, the landlord would know the legal implication of returining the deposit to the wife. 

4) Maintenance and residence issue: as Kushan ji had said, just saying that wife has left home, does not say much to make her inelogible. You know it much better than a layperson like me who can see some gaps in the presented brief, because wife's side of version is not given here, and hence the above points may be possibilities or may not be. 

I am again sorry for intruding this space which should be better left for advocates' opinions. 



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Self service


None
[ Scorecard : 596]
Posted On 06 March 2011 at 13:16 Report Abuse

Well wife collected money from landlord and accepted on paper. collected TC in absense of husband. All this shows wife well planned for her move. So as members adviced Landlord is key for this case. If she was not forced to leave house in husband absence ( not sure if husband invented some remote tool for forcing her ) she is not entitled for any thing.  Also wife need to prove why she left matrimonial house.



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Tajobsindia


Senior Partner
[ Scorecard : 19093]
Posted On 06 March 2011 at 13:29 Report Abuse

@ Author

Another fantastic que. here. Your que. can be seen in the light of various tricky parts inbuilt into it and prime facie relief to husband as first and then read with relief to a a natural father is need of the hour as duty to your client I suppose so;


The first part of que. is wife and child without consent / information to husband / natural father left shared household and second part of que. is ordinary jurisdiction of child and third part of que. is ordinary school of child and all these three are covered under DVA cross r/w .HCP and various civil remedies (in this post I am making a departure from my usual call for criminal section usage especially in this brief as I am aware I am under your litmus test ha ha
J so I better conserve my afterthoughts for later rebuttals if any as I have 2 more bandwiddth post here so this is my first bandwiddth shoot).


First in my opinion I would like to clarify that ‘kidnap’ is a layman’s spur of the moment word which is rightly used by a layman husband read as father herein however more apt legal wording to use is “Habeas Corpus” for both wife and child. See, under normal couples living situation if all honky dory in their life no civilian (means society and Law) points fingers to either spouse but situations like this the Bench will question ‘delinquency (read it is negligence)’ of husband not to act immediately when his wife and child is found to be missing from ordinary jurisdiction hence HCP is what Bench expects a husband read as father to behave and sum total ideating will not work it is first movers advantage in family law which shows path of the outcome essentially.



I think here are some legal remedies on this brief (may be and I'm open to correction);



1.
File immediately “An missing persons Report” with Jurisdiction Police Station seeking relief to produce both wife and child before husband and new address of husband be mentioned therein. [The police will ideate on this Application believe me.]


2. Wait 48 hrs. and shoot an ‘RTI’ for ATR under ‘life and liberty’ seeking reply in next 48 hrs. The police is bound to reply in 48 Hrs. as per RTI Act and catena of decisions of HC’s {Re.
Sheela Barse Vs. State of Maharashtra AIR 1983 SC 378
] in such situations as in your brief. But, they will not.


3. Annex these as cause of action and approach HC in 72 hrs. for remedy under HER extraordinary “Habeas Corpus” (HCP) jurisdiction even essentially all nature of allegations (un-tried issues of facts herein) are in civil domain but unless allegations (influence) on in-laws read with landlord (common intention) are put (under memo of parties all their names shall come along with STATE as R 3) therein with (reverse) apprehension of safety, security, welfare of child first read with education breakage without consent of natural father child removed from ordinary jurisdiction and safety and security of wife apprehension submissions the Hon’ble HC may not give further directions believe me. However, given to understand your superb legal knowledge here I am confident your HCP will pass the test under your prudent arguments before
Hon’ble Court
. The HC will direct jurisdiction police for production of child as well as wife. Now, second prayer in your HCP is to restore child to her original school starting at such tender age it is not in best interest of child to be treated as a ‘gypsy’ at the whims and fancies of her mother and add no doubt child is below 5 years but welfare of child demands that child be not disturbed since tender age continuation of school read with her original jurisdiction matter is pending before a civil court of Law. [Cite here the Gujarat HC judgment on re-instating child to her ordinary school when mother without informing father did similar stuffs as in your clients brief and therein the Gujarat HC did not took it lightly]. However recall, HCP will not go into other allegations and counters so the wordings need to be revolving around welfare and best interest of child and confinement of wife without her will by in laws thus I say immediate HCP is the relief of the day and IO to be bound to produce both mother and child in 72 hrs. flat ! This may be a Holi gift to your client ha aha there are lots of things you can do…………… Flip the third bullet that is you can even ask for wife as well as entire in-laws for Judicial production not protection mind it and search and recovery of all his belongings bought by his money as third relief…………….but this is a very tricky charge think about it but doable as you say your client has no towel left even to wipe his tears as everything illegally carted away by madam ji so………..


4. Simultaneously file a GWA suit u/s 25, 17 and 12 and I am sure you will rest the ordinary Jurisdiction of Child under Jurisdiction clause to get Notice issued with a very short NDOH. Make reference of this GWA suit in above HCP (as clean hands) it will help this father later on greatly.

 


Now let us cover the tricky precarious challenge this lady has put the husband in using “temp. Jurisdiction created to file a DV Suit is my main objection here. I must say this a brilliant call of hers and salute to her ld. advocate [and find out who this great mind is from local Bar you will come to know his / her common line of arguments] etc. etc.!

Mind it DV is one Act which is so flexiable that I believe each and every section of this Act there should be a SLP filed before Hon’ble SC nothing below na na na ji na. However this anguish besides the point three HC’s have already opined differently on ‘Jurisdiction’ in DV Act. Assuming she filed DV from her place then the “preliminary objection” citing diverse views of various HC should come into ply to seek dismissal of her DV on “admission cross hearing itself”. Flip this and assuming she used HIS Jurisdiction to file DV then face section by section relief prayed by her for which I may not be in position to suggest much as probably have no desire to see your clients suit on spur of the moment and I have condifence in your abilities and legal knowledge etc etc. BUT;


5. Assuming your client priority is child then under DV Act he need to file Application for visitation of child ir-respective that he is seeking similar relief under GWA. The argument is written large in the Bare Act of DV itself you know where it is…..He will be granted that and I can help in throwing few trial Courts opinion which are in favour of father (respondent husband in DV) in such situations and feeling from your brief that father is aggrieved more of child than wife that is why he used word ‘kidnap’ on whom read your brief hai na
J


6. I difer to ld. Legal fighter suggestion on usage of S. 406 IPC because this is essentially a ‘civil dispute” that also in the domain of a husband a wife and the essential ingredients to attract S. 406 is ‘entrustment” and it is missing in such allegations. For clarity let us read down S. 405 I.P.C., the offence of criminal  breach of trust is committed when a person who is entrusted in any manner with the property or with any dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do. Thus in the commission of the offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. (Re.:  The Superintendent & remembrancer of Legal Affairs, West Bengal Vs. S.K. Roy she will seek quashing of S. 406 IPC if ever filed on her side)



7.
Maximum if it has to be filed (let me admit to put pressure on this lady) you may file a S. 156 (3) CrPC suit in
Jurisdiction Court
and seek remedy under ‘fraud’ ‘cheating’ and ‘mischief’. All these three he will able to prove easily. In my early opinion IO as being directed on admission hearing by ACMM or JFMC / MM Court will not touch the investigation citing it is essentially in civil domain with some vague reasoning he will put in his report to concerned Court and other reason is it is a husband’s case had it been wife’s then in some other post reply I will flip this view…....... Now believe me this S. 156 (3) CrPC is bound to get converted into S. 200 CrPC and concerned Court will direct your client to lead evidences as all evidences are within his special knowledge i..e. from Husband herein. Now what you shall do is to submit Witness List (means get allowed witness summoning) with PF. Now whom you should array – first the Cellphone co. of wife and pray concerned Court to issue direction to freeze all her cell records from such and such date to such and such date – you will see later how much evidence pops here) with production of list of calls / sms / all incoming – outgoing and second school teacher as well as school principal with complete school documents including all applications and Rules / Guidelines of School admission and removal of a student guidelines attendance register / school bus details etc. be produced and third call Landlord as witness with true copy of rent agreement all rent receipts and question him on refunding rent security details as statements, now if your client is now aware of how she conveyed back to her home then call them as witness (means by train  / flight by commercial bus / taxi etc.) You have good casein hand on ‘fraud’ ‘cheating’ and ‘mischief’ and anyother witness with permission of Court........  


I beg to use your own words of wisdom here that “we reply only to what is asked in a brief” so ignoring my other assumptions / pre-assumptions and don’t want to elasticize this reply unless some more are asked and all the best.


@ Damyanti

It is not a case of “relocation” as Suchitra has mentioned in her brief - husband went “out of station” and it is common knowledge that a working husband can be sent for official duty out of station and even so it is not the case to filter out all lenghty paras of a suit in legal forum discussions as ld. Lawyers want to quick come in and go with knowledge sharing and it is not needed to know each and every para of her DV suit and Suchitra is a very competent lady ld. Advocate we have in this forum.



Total thanks : 1 times


raj kumar makkad


Advocate
[ Scorecard : 131468]
Posted On 06 March 2011 at 13:49 Report Abuse

It is a matter to be gone in depth before making concrete comments. One thing which husband is claiming is that wife left at her own accord is to be established beyond reasonable doubts before Family Court. I am of the view that wife shall put her own argument that she was forced to leave her matrimonial house under compelling circumstances. Both shall lead their evidence and only on the basis of evidence on file, it can be commented on which way wind shall blow.

 

So far matter of bringing daughter wifh her is concerned, it is not a kidnapping hence no case under section 406 IPC can be filed, as suggested by one of experts. Mother is equally entitled to take care of her daughter especially when she is minor. Father can apply before Family Court to have visiting rights and if his wife creates any hurdle in execution of such orders then she is liable to face contemp of court.



Total thanks : 2 times


Suchitra. S


Advocate
[ Scorecard : 4727]
Posted On 06 March 2011 at 21:26 Report Abuse

My heartfelt thanks to all those who have responded to my que with special reference to Mr. Rajeev ji who has shown immense confidence and given encouragement to a budding lawyer like me. 

I have to argue the case tomorrow with respect to the applications filed by the complainant for protection order, interim maintenance, residence orders. It is sad that it is only aggrieved person who can ask for reliefs under DV Act. 
As you people have guessed it right, the wife has left the matrimonial home all by herself because of differences between the couple. But the fact that she has collected the deposit and vacated the house with all the belongings may help me in restricting residence and interim maintenance orders. 
I know it is same with regard to custody. Only aggrieved person can ask for custody but I will argue on the basis of proviso relating to custody orders under the Act, and I hope magistrate may at least order visitation rights. 
I will definitely press for the trial to go on and parties be put to strict proof before any order is passed. 

@ Mr. Rajeev ji, I respect all your views with regard to filing of other cases against 'wife' in question but as of now we are concerned with this DV case and the other S.498A case which the 'wife' has filed against her husband and his parents. My client has to go abroad on a project from his Company soon and I do not want his passport get impounded, unfortunately because of all this..  :(

With this,  I would like to stop the que at this point. Thanks again to every response. 
 



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