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Pradeep s. (Self)     31 October 2011

Domestic violence

Wife is living seperately from the husband.When they were living together Husband had taken a loan of Rs.66 lakhs from M/s Religare Finance for his business wherein wife became a co-applicant.A property in Delhi was pledged by the husband with M/s Religare while taking loan.The cheque for Rs. 66 Lakhs was given by M/s Religare in the name of the Husband and the same was credited in his account.  Husband not making the payment of installments of loan.Wife wants to get her name removed as a co-applicant at any cost..M/s Religare has given the option that in case husband makes any other person as a co applicant only then they can delete the name of the wife.Husband is not cooperating at all.Wife contemplating to file a case under Domestic Violence Act.Wheather the court in that petition can give the directions to the husband to get the name  of the wife deleted from the loan agreement.What are the options available with the wife



Learning

 26 Replies

M.Sheik Mohammed Ali (advocate)     31 October 2011

not possible to verdict into the DV act, you cannot approach by this  way,

1 Like

adv. rajeev ( rajoo ) (practicing advocate)     31 October 2011

Finace co., is rightly asked for the another surety.  Under the DV act you cannot claim this relief.

1 Like

Pradeep s. (Self)     31 October 2011

Section  19(2)  of domestic Violence Act may be resorted to in such circumstances.It has wide amplitude.The word "safety" covers not only Physical safety but also the Finnancial safety as i interpert from the section .

Advocate Habeeb (Advocate High Court of A.P.)     01 November 2011

Not Possible in DV ACT .

1 Like

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     01 November 2011

Dear Pradeep

if the Court think fit then only court directed to him that provide other surety to Fin. co. but not genrally its possible

sec-19

19. Residence orders.—

 

(1) While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—

 

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

 

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

 

(d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;

 

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

 

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

 

Provided that no order under clause (b) shall be passed against any person who is a woman.

 

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

 

(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

 

(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

 

(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

 

(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

 

(7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

 

(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

 

 

Comments

 

This section provides that the Magistrate may on being satisfied that domestic violence has taken place pass a residence order restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household, directing the respondent to remove himself from the shared household, restraining the respondent or his relatives from entering the shared household, restraining the respondent from alienating or disposing of or encumbering the shared household, restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate, or directing the respondent to secure alternate accommodation for the aggrieved person of the same level as enjoyed by her in the shared household or to pay rent for the same. It is also provided in this section that no order shall be passed against any person who is a woman directing her to remove herself from the shared household. Sub-section (2) empowers the Magistrate to impose additional conditions and pass any other direction in order to protect the safety of the aggrieved person or her child. Sub-section (3) provides for execution of a bond by the respondent for prevention of the domestic violence. Sub-section (5) empowers the Magistrate to pass an order directing the officer-in-charge of the concerned police station to give protection to the aggrieved person or to assist in implementation of the residence order. It is also provided in this section that the Magistrate may impose on the respondent an obligation to discharge rent and other payments and to direct the respondent to return to the aggrieved person her stridhan or any other property or valuable security to which she is entitled.

1 Like

Adv. Chandrasekhar (Advocate)     01 November 2011

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.

jitendra yadav (ADVOCATE)     01 November 2011

in DV Act, whether interim relief is restricted to the interim Application made u/s 23 of DV Act or order can also be passed from Main Application made u/s 12 of DV Act at the time of passing of Interim Relief? 


(Guest)

How many Acts and laws are there in India where on suffices?


(Guest)

No D.V act or other violence acts/laws apply. Wife and husband are seperated. If wife benefited from the deal Religare won't delete her name unless there are reasons for Religare to belive that this seperation is to the detriment of their business. Needs thrashing out.Get a good advocate.

1 Like

Pradeep s. (Self)     02 November 2011

Thanks for giving reply and i futher thank all  the participants.I agree and you are correct  that  wife can file a suit for declaration .Again coming to the scope of D.V Act  if the wife  demonstrates before the court that she is not the benficiary  of the loan then can the court direct the husband to get her name deleted from the loan is the moot question.

Tajobsindia (Senior Partner )     02 November 2011

 

 

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....... 

Adv. Chandrasekhar (Advocate)     02 November 2011

ur nonsensial interpretations about DV Act have been befittingly replied by justice A.K. Sikri in the DB judgment in Varsha Kapoor's case.  If you have got any shame stop to talk nonsense about DV Act.

1 Like

Tajobsindia (Senior Partner )     03 November 2011

ha ha

The "economic abuse" is explained in Explanation I (iv) of PWDVA, 2005 which is as follows :-

 

“(iv) economic abuse includes-

 

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

 

 

(b) disposal of household effect, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

 

 

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.”

 

 


Re-read Varsha Kapoor and see yourself what was held in it by a DB ! Was DB talked anywhere in it on 'economic abuse' other than talking in para 5 in socio-economic context that also three times under the same para! There is no two words; 'econoimic abuse' in whole of quoted DB Judgment as reminded to me.

 

 

Have you even forgotten to refer to correct Judgments to me Ld. Chandu?

 

 

I repeat the query is simple and, "a husband takes loan when he is married to this wife as co-party in question and then wife leaves him and meanwhile he is not able to pay loan. Wife anyhow wants to get rid of her name from loan papers. Does anywhere as per DV Act object and intent and reason and even as per Explanation I (IV) and according to your reference of Varsha Kapoor (supra) she been 'economically abused" to suggest applying DV Act and this husband becoming perpetrator of Domestic Violence as you say in your above advise ?"

 

 

I think you should re-read your own replies before calling me nonsense. I am respecting your age and seniority at Bar otherwise by now you must know how I would have chosen to rebut you.

 

 

Now if your Excellency has any shame left stop advising reader / clients left and right to file DV Act as in instance question of the author where one side DV Act says under above Explanation I (iv) (b) read yourself what it says if you can interpret Varsha Kapoor better way and cite it here to me.    

 

 

BTW, the above Explanation I (iv) (b) is of Legislatures and is in Bare Act too n not my nonsense interpretation and now go and buy recent 2011 edition of PWDVA, 2005 Bare Act or send one of your Junior's to get one and read whole week what Legislatures say in the Bare Act on 'economic abuse' under DV Act in context to a complainant / aggrieved person and also re-read Varsha Kapoor and tell me is it on 'economic abuse' based Judgment and does it apply to this query and or to my various interpretations of DV Act till date in LCI!

 

1 Like

Pradeep s. (Self)     03 November 2011

Thanks everybody for giving their point of view.In view of what i have read its better to eloborate the case.I felt  so because the discussion has gone beyond the intial inputs.First of all it  one has to assume ,whatever, the wife is saying should be presumed to be correct as is the basic law  in criminal cases.It should be without questioning the veracity  of  the  assertions of the wife.Wife says that she was forced and coerced to become co applicant.Lets not go into  her intentions or wheather she will be able to prove the allgetions  subsequently.In case the wife was made to sign some loan papers and she asks for directions against the husband to get her name deleted  as a co-applicant, can the court  take cognizance of such case under D.V.Act?


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