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Contest (Proofer)     21 February 2014

Dva initiated after hmop filed.

Hi,

I got married in Sep 2007 and a male child was born in 2008 and in Sep 2009 my wife went to her parental house with child after denial of myself permanently shifting to her parental house to live with her and also their parents abandoning my parents who are sick and older.  After Sep 2009, she never returned to matrimonial house after all requests, negotiations through family/friends/relatives, etc.

In Dec 2010 all the stridhan were given to her on her request and I have a valid witness who delivered it to my wife, her mother, and her sister.  I was not permitted to see my child from Dec 2010 and until now I have not taken any chances to see him because it would create ruckus between both families.

We both are not in contact with each other from April 2011.

I finally filed HMOP in Feb 2012 on desertion ground only.  She filed a complaint in police station against me and my father (no domestic violence has happened to her, no date or time of incident has been mentioned in the complaint), and the same was forwarded to District Welfare Department and I received a summon to appear before them and I gave explanation who said which is satisfactory and the faulty is my wife.   The witness, who delivered the stridhan, was enquired in District Welfare Department and my wife has accepted receiving it.

In Feb 2014, I received a summon from District Welfare Department that I should appear before a Judicial Magistrate under the case of DVA filed by protection officer/welfare officer of District Welfare Department.

My questions are,

1.  Can I ask the Judicial Magistrate to quash the petition of DVA?  No mention of domestic violence happened to her in the reply to my petition in HMOP, so this can be used as an evidence to prove myself to Judicial Magistrate as clean, and pray for DVA filed by protection officer/welfare officer should be quashed?

2.  Can I ask the Judicial Magistrate to transfer the DVA case to be jointly handled with HMOP which is proceeding?

Friends, please suggest me what can be done and what should be done.



 6 Replies

SACHIN AGARWAL (ADVOCATE)     21 February 2014

The Judicial Magistrate has no power to quash the proceedings. You can file a Petition before concerned High Court for the same.

It is better for you to move to High Court for quashing the proceedings and you may get relief.

1 Like

Biswanath Roy (Advocate)     21 February 2014

I n response to your first question I say you can quash it  from the High Court only. and in reply to your second question  I say 'NO' both the proceedings cannot be taken together for adjudication.

1 Like

T. Kalaiselvan, Advocate (Advocate)     21 February 2014

@contest:  Your worries are unnecessary, first let me reply your question:

1.  Can I ask the Judicial Magistrate to quash the petition of DVA?  No mention of domestic violence happened to her in the reply to my petition in HMOP, so this can be used as an evidence to prove myself to Judicial Magistrate as clean, and pray for DVA filed by protection officer/welfare officer should be quashed?

You have to approach the high court for quashing the DV case u/s 482 cr.p.c.,the JMFC has no power to quash the same.  You may file the certified copy of the HMOP along with the quash petition and also the list of the streedhan returned to her through her relative to prove that there was no domestic violence at all  or that there have been no cohabitation at all between you both ever since the delivery of your child etc. f you cannot approach high court for quashing, you may contest the case in the lower court itself with the help of the evidences and merits on your side.

 

2.  Can I ask the Judicial Magistrate to transfer the DVA case to be jointly handled with HMOP which is proceeding?

This cannot be done, both are different cases, and triable by different judges, you have to contest them separately, but can use the evidence from this to that.

I think you have strong merits on your side, why dont you confidently contest the case and get it dismissed?, what is your lawyer opining ?

1 Like

Contest (Proofer)     23 February 2014

Thanks friends for all your suggestions,

 

Kalaiselvan Sir, I am going to meet my advocate on Monday and I am confident about this case, will let you know what my Advocate is opining.

 

Contest (Proofer)     24 February 2014

Hi Friends,

My Advocate today evening told me that he is unsure whether any surety is needed on the first appearance which is going to happen on Feb 26, 2014 (no details of the case was given or told to me by him and what relief they sought under sec 12 of dva).  Can i ask for a copy of my wife's relief under sec 12 of dva to my advocate or the judicial magistrate?

Is it necessary to give surety at the first appearance (this trick of my advocate appears weird for me to pump money from me)?  Please experts advise on this.

My wife has been residing with their parents since Sep 2009 after exiting my house voluntarily on her own.

She got back her stridhan in Dec 2010 for which I have evidence in person who transported them to her house and received by my wife, her sister and mother.

Me and my wife were in contact until March 2011 through phone only (No contact from April 2011).

I filed HMOP in Feb 2012 based on desertion.

She filed a complaint against me in Apr 2012 in police station, which was later sent to district welfare department where i attended their summon in person and listed out my positives and they even said that fault is on my wife (i gave an explanation in writing with consulting my lawyer).

On Feb 20, 2014 I received a summon to appear before Judicial Magistrate on Feb 26, 2014.

There has been no domestic violence or any sort of troubles to her from myself or from my family.

What do in this case??

I read in this forum

"recent judgment by justice roshan dalvi that "DV after a year of seperation not tenable."

Is it is applicable for me? bcos we have been separated from 2009 to until this date.

cyberlawyer (barrister)     24 February 2014

Yes, if you can prove that there is no domestic relationship between yourself and your wife atleast for one year, then this judgment will be squarely applicable for your case. 


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