Amit (def) 20 September 2013

Domestic violence case maintanability

Friends, need your advise if I can use the no domestic relationship factor for more than one year in my case. wife have created a good prima facie case against us.

Details
1. Marriage in 1999, start living with parents. Move out in 2003. Move to USA in 2005.
2. Come for vacation in India in 2010 for a month.
3. Husband leave for USA on Oct 2010, wife suppose to join 15 days later but does not and problem starts
4. Husband come to India in March/April 2011 for 15 days for negotiation. Return back with 4 yr old daughter, though with permission wife claims husband took away without permission in DV complaint. Luckily wife not claiming that we stayed together, but I just met her couple of times in though 15 days.
5. In DV Wife claims that in June 2011 she came to my parents home and since then she is staying there where she faces more domestic violence. She claims that I had couple of phone calls with her in this period wherein husband demand dowry or divorce.
6. In January 2012, she claims that both husbands parents beat her and kicked her out of home and therefore she immediately went to poice station and filed a complaint that she was kicked out and beaten.
7. April 2012 498a FIR registered.
8. In June 2012 DV is filed in court.

My question is
1. Can parents file no maintainability of DV? Since wife has smartly claimed that from June 2011 to January 2012 she was staying with parents and from there she made a police complaint. Note actual DV is filed in June 2012.
2. Can husband file no maintainability of DV? Since husband have no domestic relationship for 14 months before police complaint is filed and 19 months before from actual DV filed. Only point is that husband took away the child in April 2011.

Appreciate your inputs on the above and if there are supporting judgements on this.

thanks
Amit

Reply Follow

5 Replies

(Guest)

Regarding 5 and 6.

Just making claims that you asked dowry on phone, she should have some audio recordings to prove it.

Beating, black and blue, is there medical certificate from a Government doctor stating that she had such n such injury? No?? Then case wont stand.

And no relief will be given if no domestic violence has occured.

This all looks like a money game.

She is looking for money.

Regarding maintenablility etc, there are scores of judgments available which I will post in my next post. But my friend with judgment or without judgment or maintanability etc, to prove all this/if you did commit DV or you did not commit DV it will take minimum 5-6 years to come out of this DV case alone. Let aside the 498a.

Hope you got my point.

stanley (Freedom) 20 September 2013

Originally posted by : Amit

Friends, need your advise if I can use the no domestic relationship factor for more than one year in my case. wife have created a good prima facie case against us.

Details
1. Marriage in 1999, start living with parents. Move out in 2003. Move to USA in 2005.
2. Come for vacation in India in 2010 for a month.
3. Husband leave for USA on Oct 2010, wife suppose to join 15 days later but does not and problem starts
4. Husband come to India in March/April 2011 for 15 days for negotiation. Return back with 4 yr old daughter, though with permission wife claims husband took away without permission in DV complaint. Luckily wife not claiming that we stayed together, but I just met her couple of times in though 15 days.

In the absence of any court custody /Injunction order you are at liberty to take away your daughter to any place .

5. In DV Wife claims that in June 2011 she came to my parents home and since then she is staying there where she faces more domestic violence. She claims that I had couple of phone calls with her in this period wherein husband demand dowry or divorce.

Burden of proof is upon her to prove those false allegations so you sit down quietly and relax and in the cross examination your lawyer can cross her about the same .
6. In January 2012, she claims that both husbands parents beat her and kicked her out of home and therefore she immediately went to poice station and filed a complaint that she was kicked out and beaten.

She can claim a lot but the same has to be proved . She will claim that you used to rape her everyday but the fact being that she was in india and you were in U.S.A , is it possible . Put a RTI to the police station and seek the FIr copy of the same and see what is the response . Please try to understand that a FIR has to be there with a Medico legal report is it there as she claims she was kicked and beaten. Ultimately speaking the police should direct her to a hospital for treatment

7. April 2012 498a FIR registered.
8. In June 2012 DV is filed in court.

My question is
1. Can parents file no maintainability of DV? Since wife has smartly claimed that from June 2011 to January 2012 she was staying with parents and from there she made a police complaint. Note actual DV is filed in June 2012.

What are the dates on which the allegations are made and as stated in Domestic incident report would depend upon that

2. Can husband file no maintainability of DV? Since husband have no domestic relationship for 14 months before police complaint is filed and 19 months before from actual DV filed. Only point is that husband took away the child in April 2011.
you can try but my view is No you would have to contest the cases
Appreciate your inputs on the above and if there are supporting judgements on this.

thanks
Amit

Samir N (General Queries) (Business) 20 September 2013

I am not an advocate but have successfully fought DV case without advocates. So, here's my advice:

Check Justice Roshan Dalvi's ruling in Criminal Application no. 160/2011 decided on 7.3.2013. You should get it on the Bombay High Court website.

Also, Supreme Court Decision Inderjit Singh Grewal vs. State of Punjab & Anr. Cri. Appeal no. 1635/2011.

In addition to the issue of limitation of one year, you have one more defense. Is the house owned by you or your parents. If it is owned by your parents, then you can skilfully apply Supreme Court's decision in Tarun Batra v. Batra... Just check the net, and add "shared household" as search criterion and you will get a lot of hits. Read it anyway and decide how it applies to your fact situations. The Inderjit SIngh case has to be read carefully to screen out the main ratio-decendii... Limitations of one year.

Drafting of your application to dismiss the petition has to be skilfully done and argued. Chow-ani advocate will screw up your case.

Good Luck!

Tajobsindia (Senior Partner ) 20 September 2013

1. The DV Act, 2005 complaint is maintainable or non-maintainable is question of facts and is answered when trial proceeds and before that it is already admitted and respondents should participate in trial.

2. If respondents could have challenged summoning Order in Sessions then HC and then SC then clarity would have come and meanwhile trial Court matter would have got stayed by superior Court directions. Since these questions of Appeal are not mentioned in brief the question of maintainability or non-maintainability needs waiting adjudication now.

3. In my opinion the complaint case is maintainable for a trial for three reasons; telephone calls by husband in a subsisting marriage, complainant living in shared household and just the day she leaves she files a police report with some facts and lastly parties child removed from natural mother’s company.

4. A replier (@ Samir N) directing queriest to use Hon’ble Mumbai HC and Hon’ble SC Judgment; I differ to such references directions as both references are on totally different footings and bears no corelation to brief and thus cannot be used in reference brief in a Appeal case.

Samir N (General Queries) (Business) 20 September 2013

I had replied to TajobsIndia but the reply did not show up. It may later. But quickly... You can use the admissions in the petition to file an application for non-maintainability of DV without waiting for leading of evidence. Admissions in the petition are admissible as evidence. If the admissions do not suffice, then, yes, you need to cross her and get the admissions you need on the record and then file non-maintainability application. I believe that you are in the preliminary phase of your DV. Strategize... decide what will be your defenses and work towards getting them admitted by her without her realizing it.