Originally posted by :Adv. Chandu 09868332610
Not possible in DV Act.
Wife can write the letter to financier to remove her name as co-applicant within 15 days. If the financier does not heed her request, file a suit for declaration that she is no more a co-applicant due to economic abuse (as defined in DV Act) perpetrated by husband and get a decree to liberate her as a co-applicant.
The matter is between the husband and financier. If the husband does not bring any co-applicant, wife need not to worry. The financier has got the option to attach the mortgaged property and sell it and recover his loan. In other words, wife does not have any responsibility to find a co-applicant and in failing to do so face any adverse circumstance.
What a contradiction in reply / advise J
First you say no and the next moment you recall and say husband is a perpetrator hence file DV under ‘economic abuse’ as post notice now the matter is between husband and financer slipping on th ego that they are still husband and wife!
Kindly explain to readers your reasoning / logic how she has been 'economically abused' by husband by taking loan when they were living together?. In my view the loan was probably taken for deriving / growing business income and it is natural that fruits of such income would have been come to wife’s karvachauth, dhanteras kitty too as being wife then living in shared household.
Now the moment she lives separately all sorts of gender biased laws the husband has to face under advise by ld. brother - right !
In my views why can't she seek decree of divorce from him the moment she started living separately as well as get alimony for financial support (if any if you say ‘economic abuse’ has happened on her which I disagree) Now once she started living separately what are the reasons of her living separate, is it the loan that is where masala will be feed in the complaint application by any adv. to press DV relief under economic abuse funda? Nowhere the author of the post says so in the brief. Com'n let us not misuse such gender biased prime facie laws to such an elasticized extent that there remains no husband and wife relations per se in society when lots of businessmen husbands takes property as well as loans jointly during their marital phase.
For your info. the ‘economic abuse’ under DV act is interpreted as follows;
Action of a conscientious family loving husband, who earns hard and ensures that his family including his wife spends and manages within a reasonable budget in the interest of his family can be put forward as an economic abuse by a spendthrift wife who feels her selfish interests are not toed by her husband. This cannot be construed as economic abuse having caused by man on the woman. This provision, whereas in Explanation II clearly states that for the purpose of determining whether any act, omission , commission or conduct of the respondent constitutes "domestic violence" under this section, the overall facts and circumstances of the case shall be taken into consideration. But the innocent victims are put in a tight corner as their voice has no consideration in the courts since there can be no documentary proof or witness in a domestic case. The explanation clause is simply an appended clause to give an impartial outlook but in reality, in many cases, the real facts of the case have to be ignored to save the long title of the Act.
Therefore, there is an immediate need and mandatory requirement to define all types of abuses narrowly and with precision and to prevent the Domestic Violence Act from being a paradise for lawyers, a hell for husbands and nightmare for enforcement authorities.
The wife would have left the matrimonial home for various reasons to take care of her side of family, higher studies, children etc., earlier, and can make a statement as to bring that in to the purview of the Act and label it as an ‘economic offence’ now !.
The DV Act singles out men as perpetrators of domestic violence and assumes that only women are victims. As per this law, only a woman can file a complaint against her male partner. A man, who is a victim of domestic violence, has no rights under this law.
Suspicion, however grave, cannot be accepted as tantamount to proof of guilt. (Per Rahman ,J) –Atah Mohammad Khan vs Crown AIR 1950 Lah 199: Pak LR(1950) Lah 417:Pak cas (1950) Lah 504(FB). [Taken from CRIMINAL TRIAL by Y.R.Rao and Y.C.Rao 4th edition @p14].
Mere suspicion is not sufficient for the purpose of proving a fact and the said fact has to be established by the prosecution by bringing on record legal proof of that fact. Mushtaq Abdul Majeed Shaikh vs State of Maharashtra 2006(2) Crimes 435 (Bom-DB). [Taken from CRIMINAL TRIAL by Y.R.Rao and Y.C.Rao 4th edition @p14].
The fact is that it has been comprehensively proven in numerous studies that women are no less abusive as men in intimate relationships.
Giving such sweeping legal powers to women while withholding protection to male victims is tantamount to systematic legal victimization of men. In the western world, the domestic violence laws are gender neutral and provide protection to the victims, both men and women. Even in neighboring Pakistan it is gender neutral and prospective in nature. Even HAS is prospective after 2005 Amendment and it is a benevolent piece of legislation such as DV Act is it not so ld. brother !!!! Moreover in Philippines and Myanmar it is not even operating retrospectively if we talking here of Asian context. The fact that the Indian version explicitly prohibits any male victim to seek relief under this law defies all logic and is beyond comprehension.
Another significant flaw in this law is that it lends itself to such easy misuse that women will find it hard to resist the temptation to "teach a lesson" and will file frivolous and false cases as being in one breadth thought as NO and in next breadth suggested to apply under ‘economic abuse’ Cm’n how much protection you want to give to a wife when loan was jointly taken when living under same roof and when not living under same roof then she says hands up I am not responsible yet I am his wife L .
The larger point made here is what will now a PO mention in h/er DIR to Mag. Court ? “Some years ago husband took loan and made wife co-party and now wife is not living with him hence that loan is a ‘economic abuse’ to wife hence protection order recommended”! J A adv. gets his fees by using economic abuse of loan funda via wife filed and another adv. will try ages to defend on behalf of husband how the loan is economic abuse and end of it such misuse will still not stop. Why?
Let us flip the situation of wife as in this brief, suppose no loan was taken and wife was living separately and the moment she started living separately husband took some loan as sole holder to build up a business, I wonder what will be your advise now will she be asked / advised / suggested to use ‘economic abuse’ funda or any / all other protection order Ss. of the Act since he has taken loanpost her living in shared household and their relationship is still that of husband and wife J I will say obviously advise will be yes because prime facie the husband has grown leaps and bound once wife is no more living in a shared household. See that is the beauty of this Act with one stroke of flimsy interpretation you kill all species of birds in a bush and say ‘prime facie’ interpretation ji and abhi to protection order grant karo baad mei proove karengey…….
Educate readers instead of going into a shell stating I don’t wish to reply to knowledge seeks which I am not here and I am in same bread and butter profession as you for a simple reason unless and until the relationship is dissolved by way of a decree in divorce proceedings she is still liable for any loan default and it is against equality spirit of COI to put pressure on husband via DV Court trying to seek frivolous protection order under guise of economic abuse funda to seek another co-holder for loan since wife is living separately. When wife is not agreeing to become co-holder of the loan do you think ld. Magistrate will be able to succeed getting ‘protection order’ implemented ever by seeking from 1.2 billion people in India to now come forward and become co-holder of the defaulting loan taken by a husband !!!! Ultimately what will happen when protection order is not complied prime facie JAIL and or fine this is also larger picture emerging as per S. of the Act because it will be now duty of wife’s side adv. to file execution order on granted protection order under economic abuse is it not so ld. brother Chandu………… !!!
Today’s all matrimonial problems can’t begin and end with one off the prime facie counter called Aspirin further misused as DV Act ld. brother Chandu is my view which you may differ till end and it does matter to some readers here.......