Property captured by wife
Abhishek Majumdar
(Querist) 26 July 2016
This query is : Resolved
Hi My name is Abhishek M and I have filed a case against my wife for divorce as she has made false complaint of 498A and DV act 2005. I have a Flat at Pune which was under my possession till 21.07.2016 and I m paying the EMI for the loan availed from bank from the beginning. As of now I have received a divorced decree from Pune court and Maintenance has been rejected against the case of DV act. Recently she broke my flats lock and entered into the flat and took the possession and I m helpless as she is staying with his parents at my flat. I spoke to my advocate about this he said to file a special relief act u/s 6. The registry of the flat has a secondary name of my wife. Request you to help as I travel every month from Nagpur to Pune for the case and I m doing it for past 5 years. I have done police complaint but they shown there disability in resolving the same.Please find the details of case judgement for divorce and DV below :
1) The petition filed the petitioner-husband is hereby granted partly as under.
2) The marriage of Petitioner A and respondent R solemnized on 04.03.2009 is hereby dissolved on the ground of cruelty.
3)The petitioner's claim of permanent injunction against the respondent is dismissed.4)The counter claim filed by respondent-wife is dismissed.
Please find the details of DV judgement:
1)The application (Exh-5) is partly allowed.
2)The respondent is hereby temporary restrained or prohibited from committing, aiding or abetting any act of domenstic violence on the applicant till final decision of main application.
3)The prayer for residence/rent and maintenance are rejected.
4)Costs in main cause.
5)Copy to be given to party free of cost. Please suggest and help me.I have also filed a suit for declaration of& permanent injunction.
Sudhir Kumar, Advocate
(Expert) 27 July 2016
as long as she is your wife she is entitled for forced possession of your flat. removing her will be domestic violence and no police officer (unless having offer of a lucrative other career) can be expected to help you.
Sudhir Kumar, Advocate
(Expert) 27 July 2016
repeated
http://www.lawyersclubindia.com/experts/Property-captured-by-wife--609466.asp
Devajyoti Barman
(Expert) 27 July 2016
It appears the name of your wife is there showing co-owner of the flat .
If that is so then she is a co-sharer of the flat having half share in the proeprty and hence you cna not file any case to evict her .
Dr J C Vashista
(Expert) 27 July 2016
Instead of posting another query use original thread if you have any supplementary question in the query, as we do not entertain repeated query.
However, have faith in your lawyer or change immediately.
Rajendra K Goyal
(Expert) 27 July 2016
If she is co-owner of the flat, you can sell your share.
If she is not co-owner and forcefully entered the flat, Bank loan is pending, you should try to dispose off the flat and get rid of the loan from proceeds.
Since facts are not clear and enough, better discuss in detail with local lawyer with option for second opinion.
Guest
(Expert) 27 July 2016
No chance of vacation or charging rent even if you have got divorce, as she is the co-owner of the flat.
You may however get your portion bifurcated by partition in property, rent out, sell or dispose of in any manner you like, but cannot evict your wife from your common flat, may be you are paying full installment of EMI of loan or for your half portion.
Abhishek Majumdar
(Querist) 27 July 2016
Sir, I havme.applied for specific relief act u/s 6.Will this help me.I m paying the emi and she left my home after lodging 498A and now she came back again after 4-5yrs. Is there any solution for this.You all r experts in this,plz suggest any other alternative from law point of view.
Guest
(Expert) 27 July 2016
What specific relief you have sought u/s 6?
Abhishek Majumdar
(Querist) 28 July 2016
Sir,
In the year 2014 I have already filed Suit for declaration & permanent injunction for flat. And now I have filed Suit under Sec-6 of Specific Relief act 1963. Please confirm will this help me. My wife after filing 498 A left home and now again came back after 5 years. Court should consider this as she came to harass me and captured by flat illegally and unlawfully although she has the name mentioned in flat documents which has been put by me.Two of the cases has already gone in my favour the divorce decree and DV act 2005 wherein the court has rejected the claims.
Devajyoti Barman
(Expert) 29 July 2016
Without seeing the contents of the plaints and orders passed , if any, I can not render any more assistance.
Sudhir Kumar, Advocate
(Expert) 29 July 2016
Any step towards removing her form the property amounts to Domestic Violence.(even if she is not coowner and even if you are paying EMI)
As long as divorce is not there you cannot even think of partition if the property is in joint name.
Sudhir Kumar, Advocate
(Expert) 29 July 2016
"I m paying the emi and she left my home after lodging 498A and now she came back again after 4-5yrs."
she has a right to do so.
Law does not compel a victim (as she is complainant) to be at disadvantage.
Guest
(Expert) 29 July 2016
Since you are not clear in your description, it is advised that you may get the copies of petitions/judgment examined from some expert, if your own lawyer is not able to satisdy you on your query.
Dr J C Vashista
(Expert) 29 July 2016
Mr. Abhishek,
You have adequately been advised by experts, second time on this platform---free of cost even than you feel dis-satisfied, in this eventuality, you must consult a local lawyer.
I fully agree and appreciate the valuable and precious advise of the experts.
You are on a wrong track in filing suit under section 6 of the Specific Relief Act since your ex-wife, the occupant is co-owner of the flat, as stated by you. You cannot be granted desired/prayed relief.
Instead of Suit against dispossession you should have sought declaration, partition, possession and permanent injunction with mesne profits.
Complaint Cases u/s 498A IPC and 12 POWFDV Act have become infructous after passing a decree of divorce.
Why did you leave your possession, even after her forcible entry? It is like a self-inflicted injury caused by yourself, may be as wrongly advised/misguided. Prima facie you have engaged some in-experienced lawyer or his/her strategy to proceed is mis-directed, if your statement (in present query) is true.
Consult another local prudent lawyer, in your own interest/benefit.
Guest
(Expert) 29 July 2016
You seemed to have left the flat just about a week back at your own. If she had broken the lock, she had broken rightfully being one of the co-owner.
The question arises, on what ground the Court should presume that she came to harass you and captured by your flat illegally and unlawfully. Has not your own lawyer guided you appropriately in that respect?
