false Case under DV act for maintenance.
Rajadiraja
(Querist) 30 August 2009
This query is : Resolved
Sir,
The woman to whom I was married (Aug.2002) in good faith and not knowing that she was married earlier, took divorce by mutual consent from her first husband (in Dec 2002) 6 months after her marriage with me. I came to know of this in the hospital when a child was born after one year (in Dec.2003). Because I enquired about this, she has not come back to my house and I was forced to file a case for nullity of marriage. After a full dressed trial, the family court decreed the marriage as null and void giving child visiting rights to the father (in Feb 2007). I have paid interim maintenance during the family court proceedings of Rs.4000/- p.m till the date of judgement; which was also not justified and I did not go on appeal for it.
She is keeping the child with her and not allowing me to even see it since birth. Whenever I ask for visiting the child, she and her parents use abusive language and ill treat me and say that the child cannot be seen. As the child will be affected if I take any action, and in good faith that the child should not be separated from mother, I have not made further attempts to see the child nor taken any legal or police action to enforce the visiting rights. She says that she will commit suicide if I do so.
At the same time, thereafter in order to harass me and extract money, she filed a false case during july 2007 misusing the newly enacted Domestic Violence act, 2007 which came into force from Oct.2006, through the local women’s commission, invoking all sections and making false allegations and claiming exhorbitant maintenance and lumpsum amount for her and the child invoking all the sections in the act- economic abuse, right to shared accommodation, etc. Then I was employed as Bank officer and last year I have taken VRS and am now jobless, living with my pension. This I have not informed the court as they may ask me to pay from the terminal benefits that I received- which is my sweat and blood of 26 yrs. The magistrate court without any trial simply awarded maintenance of Rs.8000/- p.m and thereafter I had to go to the high court for quashing the magistrate court order, for which the HC directed me to refer to the sessions court. Accordingly, on my appeal a stay was granted by sessions court on the magistrate court order and I have prayed for setting aside the false DV case filed by her on the grounds that the lower court has given a judgement without giving me any opportunity to adduce evidence and looking into facts. They have submitted various citations of the Supreme court where maintenance is awarded even if the wife has committed bigamy and the husband is drawing only pension.
Please advise me how the sessions court is likely to view the case. Arguments are over and the case is posted for judgement orders.
There is no law to protect men from the atrocities women commit on men and therefore, I am totally shattered.
I have not filed a case for custody of the child (now 6 years)since I may be asked to pay interim maintenance for the child and since I could not able to see the child or befriend the child by visiting it, the custody may not be given to me though the father is the natural guardian. ButI am willing to take custody of the child and take care on my own.Pl. advise.
Rajashekar.
email: virgo5274@yahoo.in
Raj Kumar Makkad
(Expert) 04 November 2009
The custody of child generally remains with the mother though the consideration before the courts is welfare of the child. So far DV case is concerned, the Act is not applicable retrospectively rather it is prospectively applicable so defend the case on these lines that this act is not applicable in our matter. After divorce the wife is entitled for the grant of maintenance allowance till her death or remarriage whichever is earlier.
