cpc

13--10/25/27/24


Dear All,

Please not after 01 month of marriage my Husband and family started torturing me physically and mentally and later on he left me at my parents home and filed a case against me in Family court (Dhara 10 - Judicial separation ) , by mistake of my first lawyer we ended up filing Dhara (13,25,27 -- together and 24 separately) now after 10 month of filing 13 below id my case condition

1- 8000 as Interim -- under 24
2 -nothing decision on 25 and 26
3 -10 and 13 clubbed together and he is forcing for My statement in case

As my husband is not ready to give any Stri Dhan (approx 20 Lacs -- including 5 lacs cheque in the name of Father's Husband)  also he is not giving maintenance of 8000 regularly and his intention is to take divorce and marry another woman asap and leaving my life unsettled also he is not ready to settle any regular and one time settlement , 

In the view of the same i am thinking to remove Dhara 13 as i am not ready to let him marry after destroy my life like this and here are my questions on the same.

1 - What should be my action where i should take my case of Divorce back ?
2 - If yes , on what grounds ?
3 -As 24/25/26 are together with 13 , whether they will also become null ? , if yes how i am gonna         get settlement money and interim 
4 - What will happen in Dhara 10 , i don't want judicial separation if i am not getting my Stri dhan and Maintenance lifetime ,, whether i can oppose it and how?
5- If  judicial separation is awarded in favor of him ,, whether i ll get my Stri dhan back and what about maintenance and one time settlement

Please suggest as my case is in critical situation and my Husband is criminal minded , he tried to kill me several times, Please leave yore Mo no ,, so that i can contact you

Jyoti
07675989631

 
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legal advisor

i am answering the question to my knowledge

1.you can ask your lawyer to withdraw the case or when you appear in the court you can request the judge to allow you to withdraw the case citing valid reasons

3.yes sec 24 interim maintenance wont hold..another thing is sec 25 can be filed after divorce as it is for permanent alimony.you can claim maintenance if you cant maintain yourself and your child through crpc 125.

4.if you have filed for divorce within a year of marriage the court would ask you to stay seperated for a year u/s 10 hma.if you dont cohabit during the judicial seperation you will be given divorce

5.sreedhan is the property of a woman and can be recovered by filing ipc 406

 

 
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Dear Sarvanan , Thanks for reply.

1 - What could be valid reson .

2 - If i withdraw 13 , what would be judgement under section 10 (Filed by my husband) , whether i ill be forced/ we will get judicial seperation , if yes whether he will liable to pay interim ?

3 -- As section 25/27/13 were together and same would be closed once 13 removed ,, How wll i will get settlement amount under 25,

4 - U/S 125 , once 24 is closed , can i claim interim and permanent both amount ?

5 - What about 7 Lac cheques taken by Husband father ,, how can i get that back ,, under 406 ? or Streedhan or 420 ?

 

I appreciate valuble inputs on this.

 

Jyoti

 

 
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Advocate

 

 

If you did not want divorce and even then your advocate filed petition under Section 13, then you should immediately change him, because he will not serve your purpose.  Your case is very, very strong and hence need no fear.  In answer your questions:

 - What could be valid reson :

You can simply write a petition that you do not want to take divorce and you are a victim of violence and you have not been violent at any time, you want to withdraw the divorce petition, the court will allow you to withdraw your divorce petition under Section 13.  Once divorce petition is withdrawn, your interim relief u/s 24 will be over and you will not get maintenance.  Applications u/s. 24 and other applications along with Section 13 petition will be dismissed.

2 - If i withdraw 13 , what would be judgement under section 10 (Filed by my husband) , whether i ill be forced/ we will get judicial seperation , if yes whether he will liable to pay interim ?

You have to file a reply in Section 10 petition contesting his allegations.  You should fight this case very seriously collecting all the evidence available to you showing that he is the physical  abuser and you are a victim.  In this S. 10 petition, you can again file fresh Section 24 application along wtih the earlier order granting you Rs.8000/-.  The court will restore your maintenance order.  The other applications S.25 and other are not applicable in this case, at this stage.  So, move only S.24 application.

3 -- As section 25/27/13 were together and same would be closed once 13 removed ,, How wll i will get settlement amount under 25,

Section 25 settlement will be available only if the divorce is granted.  So, you will not get any settlement.  Even S. 27 is also not profitable for you at this stage.  For recovering Stri-dhan, there are other methods.

4 - U/S 125 , once 24 is closed , can i claim interim and permanent both amount ?

Yes.  Once you file S. 24 application in his S.10 petition, then also file a separate case under Section 125 cr.p.c. seeking monthly maintenance.  You also file interim maintenance application also in this Section 125 case.  You will get maintenance and it will be available to you for a long time.  It will not stop even he gets divorce.  It will be stopped only you get remarried.

5 - What about 7 Lac cheques taken by Husband father ,, how can i get that back ,, under 406 ? or Streedhan or 420 ?

Do not say that Rs.7 lac is stri-dhan.  You file a criminal complaint before the police under Section 3/4 of Dowry Prohibition Act, saying that it is dowry amount.  As you have got documentary proof that this amount has been transferred by way of cheque, the police will force him to give you back that amount.  If he will not pay before police, the matter will be referred by the police under Section 3/4 dowry prohibition Act read with Section 406 IPC.  This amount you will definitely get.

 

 

 
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Thanks alot Chandrasekhar Sir , I am really thank ful for your valuable ananlysis and ans , it helped me alot to clear my queries

Only two more silly douts ,

1 - After removing S13 of mine and replying S10 of his if he says that come and stay with me ,which i dont want (what should i say in this support) , will court will award S10 forcefully and give judicial seperation (which i dont want) and also whether i will be forced to live with him.

2 -  Police has charged S 3/4 and S498 A via FIR and Sec 6 is charged by court, So for  7 Lac cheque do i need to speratly file 3/4 in police so S406 can be charged ,, can i file this 3/4 directly in Distric ?/ Family ?/Magistrate court ?.

Please guide i ll be very thankful for it.

 

Jyoti

7675989631

 

 
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Advocate

1.  After your withdrawing his Section 10 will remain.  You file reply to his S.10.  It is very difficult for him to win S.10 because the grounds for S.10 are same like S.13 divorce.  Let us suppose that if he wins S.10, then you need not stay with him.  One year after winning S.10, he will file divorce petition saying that one year after S.10, the wife has not come to stay with him and he will get divorce.  That is why, I am advising you to contest S.10 vigorously.  If he loses S.10, then also you need not stay with him.  If a wife, who has got sufficient reason to stay away from her husband, will not make the husband to get the relief of RCR or judicial separation or divorce.

2.  Your complaint might have not revealed Section 406, hence in FIR 406 has not been mentioned.  Do not file separate complaint. Ask the I.O. to file the separate charge sheet to carve out the offence of S. 406.  Otherwise also S.3/4 of D.P. Act will force them to return your 7 lacks.

 
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Dear Chandrasekhar sir ,, Thanks alot for your guidance ,i am very impressed with your helping  nature and deep knowledge

 

Really Thankfull , Looking forward for this support in future too.smiley

yes

 
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Advocate

I fully agree with the opinions and suggestions of learned advocate Mr. Chandrasekar.  The advises for withdrawing the divorce case and challenging his section 10 (Judicial separation) case strongly are the highlights.  

You may change the lawyer and start afresh with a new lawyer and proceed as advised.

 
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Business

Without any intent to be critical on the opinions given, I believe that some of the advice given is fatally flawed. I hope that you will do your own reading and come to a proper conclusion.  


For example, the following advice:

"You can simply write a petition that you do not want to take divorce and you are a victim of violence and you have not been violent at any time, you want to withdraw the divorce petition, the court will allow you to withdraw your divorce petition under Section 13. "

to the best of my understanding is technically flawed and even otherwise catastrophic if followed as is. You do not file a petition to withdraw an existing petition. You file an application. There is a huge difference. That application will fall under Order XXIII Rule 1 of the CPC, I think. PLEASE READ IT. You must file an application to withdraw the petition WITH LEAVE TO REFILE IT LATER and WITHOUT PREJUDICE TO ANY OF YOUR RIGHTS AND DEFENCES.  Otherwise, you will, forever, lose grounds to file a divorce petition again unless new facts arise and furthermore, your defenses against his section 10 allegations may also get diluted by your withdrawal - at least in the eyes of the Judge. Withdrawal of a petition is a unilateral right. No justification is required but it should be done very wisely and carefully, to preserve all rights and future defenses.


That said, it is NEVER a good idea to WITHDRAW a petition if you still want to continue with some form or litigation which is the case here. A better approach is to AMEND it. You can file an application to amend the petition and seek whatever relief that you want, that may be suggested here or whatever. In your amended petition, you may no longer ask for divorce - this amendment will serve the same purpose without you losing any rights which are implicit in a withdrawal. Amendment of your petition is also the shortest path to your goals, as stated here. You do not lose any rights whatsoever in an amendment. In a withdrawal, unless leave is granted to refile, which is rarely the case, you lose the right to refile and along with it associated rights.


NO MATTER WHAT, STICK TO ONE SET OF PROCEEDINGS, ASK WHATEVER YOU WANT IN THAT CONSOLIDATED PROCEEDING/PETITION AND DO NOT FALL IN THE TRAP OF FILING ANY DV. IT WILL ONLY HELP ADVOCATES BULGE THEIR POCKETS. ONCE YOU HAVE ONE PETITION WITH PROPER SET OF PRAYERS - YOU CAN FILE ANY NUMBER OF APPLICATIONS TO GET RELATED RELIEF - INTERIM OR OTHERWISE.


As for maintenance, ultimately, the arguments will be the same whether you file under some civil section or under Section 125 CrPC.  In your case, you are not going to get any additional advantage under Section 125 CrPC. 


I repeat again that I do not intend to criticize anyone - just want to express my opinion freelyThe approach suggested by me - to amend the petition and not to withdraw it - is most certainly the smarter way to move forward - And if indeed you want to withdraw do so by praying to preserve all your rights and defenses, including the right to refile.

 

 
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law officer

The legal advice given by Samir bla...bla is purile and non-sense.  In India, in various states, legal people use different terms for the same thing.  Petition and application are used loosely and inter-changeably and accepted by the courts.  In some states Interim applications are also used petitions.  In some Acts, original petitions are used as applications. In some parts of the country response to the plaints/petitions/applications are called written statements/replies/says/counter.   In DV case, some states use the term petition, some use them as complaint and some use them-going according to term in the DV Act - application.  So, courts never bother, whether you are filing the petition or application seeking the permission to withdraw your original divorce petition.  In most of the courts, even the petition/application is not insisted and just verbal submission by the petitioner seeking the permission is enough for the court to record the fact and allow the party to withdraw the petition.  There are several daily orders you can see in the trial courts where it is recorded - "Petitioner submitted that she wants to withdraw the petition seeking divorce.  Permitted with a liberty to refile it in future, if advised so".

You cannot and should not amend your divorce petition.  The first reason is for that you have to file application seeking amendments, that consumates a lot of time, because the response from the other party is sought. It is settled in law those amendments shall not change the main prayer of the original petition and shall not put up a new case.  If those are precepts prevail for amendment, naturally your application seeking amendment will indubitably fail.  I have never seen such a nasty advice to a petitioner who seeks to withdraw his/her case, to move an application for amendment of the petition. Do not do that for God's sake.

The problem wtih Samir and his ilk is that they contested their own cases and gained the experience of their only one case and want to prove that they are better than the advocates practising law everyday.  The might have studied a lot on on the subject without day-today experience in the court and start to shower their legal knowledge bereft of much court experience.  They cannot understand that how much problem it puts the innocent enquirers like Jyoti who need honest and sincere advice in addition to compassionate and acumen advocate.  Another problem with some of these male respondents is that they developed pathological hatred against DV Act as well as Advocates community as a whole.  They may have their own experience for imbibing those traits and suffer from this scourge.  God may help them.  But they always desist every woman not to file Domestic Violence Case and harping that it would enrich the advocates,and it is nothing but indirectly depriving her the rights available to her under Domestic Violence Act.  Some of these fellows went to Several High Courts challenging the constitutional validity of Domestic Violence Act and had failed to succeed.  Then they fall on social forums to teach the women not to file the DV case as it enriches the advocates.  The advocates who have been advising you on this forum are not expecting any money from the enquirer and they do not know where she lives and where she contests.  Even then, the sophomoric scholars like Samir do not cringe to bark against advocates' community.  It is not the first time and it may not be the last time he displayed his idotic imbecility pretending to give his "sanctimonious" advice, but it is purely scandalous advice.  Jyoti, several advocates, with a lot of their experience, gave their advice.  This Samir....has succeeded to confuse you a lot.  Now, try to look into your problem from this hazy situation and come to a good decision, which is more suitable and more beneficial to you.  I do not wrangle with him, because he deserves to be ignored contemptuously.

 
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