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dv (ghvhb)     28 August 2013

2 g in dv case

Hi Dv filed against all members of my family and myself I am overseas with no summons yet served to me by MEA. my mom filed dv against my wife and also has filed sec 21 to allow her to mmet my son who is in my wife's custody .Though my wife has no ccustody rights by court. My wife lawyer filed application quoting 2g and also saying that female relative of husband cannoy file dv against wife and only wife can file dv against husband and his family. Me and my lawyer relying on dr. kamini lau judgement and kusum lata sharma . Please experts throw some light what else we can do . Also sc judgement that grandparents are entitled vistations r8ghts of grandchildren is what we are using as well. My mom has filed in family court as well . Any suggestions what would be my wifes lawyers next step as well when we argue based on above judgements. All suggestions welcome Thanks.


 4 Replies

dv (ghvhb)     28 August 2013

thanks for your reply samirji however the question I have is that my mother has filed dv sec 21 to get vistation rights to meet my son presently in custody of my wife. My wife's lawyer cites 2g and says that mil cannot file dv against dil. He further states that only dil can file dv . I am aware of the limitation act . We lived together overseas and came to india for vacation where in a span of 10 days she filed 498a however I left india before she filed it. After a month she filed dv case however No summons have been served to me yet as ordered by mm court to MEA to serve me .

Samir N (General Queries) (Business)     29 August 2013

The threshold in a DV case are the terms "domestic violence" which requires existence of a "domestic relationship" which in turn requires that the two have lived in a "shared household." A shared household is one that is owned or rented by either the husband or the wife. Check Supreme Court judgment in Batra v. Batra.  Now, do you meet any of this criterion to be termed a couple in a "domestic relationship?" Marriage itself does not create a domestic relationship. There are many judgments on that... See, for example, Varun Malik vs Payal Malik  171 (2010) Delhi Law Times 67. Justice Dinghra of the Delhi High COurt has issued many judgments along this line...

How long have you been staying overseas? If the gap between the filing of the DV and your separation is more than one year, then you can use the limitations act to get it thrown out. There is a Supreme Court Judgment on this: Inderjit Singh Grewal vs. State of Punjab & Anr. Cri. Appeal No. 1635/2011. Also, in Bombay High Court. See Criminal Application NO. 160/2011 decided on 7.3.2013.

The key facts to your case are:

When did you start residing together? At whose place? How long? When were you separated, for whatever reason, job, disagreement, etc.? How long after the separation was the DV case filed? 

The answers to these questions will determine the maintainability of your DV case.

Good Luck!

Samir N (General Queries) (Business)     29 August 2013

Do not know how my earlier posting got repeated again.

Anyhow, here's my short reply: If you a search on the net for "domestic violence against women" or "women can now be prosecuted under domestic ..." you will get some recent rulings that women can file DV cases against other women. There is a very recent one for sure from Bombay High Court which got extensive press coverage.

Also see 2(f):  " domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

In any event, it appears that her DV case will be maintainable. Now she will have to prove domestic violence. Best way out... keep stalling without losing sleep.  You need to have your advocate put her through very heavy questioning during her cross-examination:

- Why she waited to return to India for filing a complaint.

- Did she file a police complaint in the foreign country? Why not? Any evidence of mental torture? Any doctor consulted, etc... Then she may allege economic abuse... need to prepare yourself for all this. The KEY is her cross-examination. You need to be very very thorough with it.  

Also, make your mother's case very very strong against her. Thats your line of attack...

dv (ghvhb)     30 August 2013

Thanks samirji Any contact it would be nice to talk to you.

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