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Contestine (Private service)     25 December 2009

False 498a case filed by wife and appealing for maintenance

Hi all,

My wife left home after 5 months of our marriage and went  back to her Parental house. Now she has filed a false 498a case from there and also filed a maintenance case 125 crpc seeking for maintenance. I have never forced her to leave house. Also I have never been to her Parental place before or after marriage. Help me what should I do in this circumstances as I live in Mumbai and to fight a case in her Parental place from Mumbai will be too much difficult for me. Is her case at all maintainable in her Parental Place in West Bengal? Is she liable to recieve maintenance in these circumstances?



Learning

 36 Replies

Anil Agrawal (Retired)     25 December 2009

 NOW YOU CAN FIGHT TO YOUR HEART'S CONTENT:

Marital discord cannot be termed harassment: HC

Shibu Thomas I TNN 



Mumbai: Marital discord between a couple cannot be equated to physical and mental harassment of the wife, the Bombay high court has ruled. 

    Eleven years after a woman from Akola ended her life by setting herself ablaze, a high court bench of Justice R C Chavan recently held that her husband, Kamalkishore Agrawal (52), could not be held guilty of treating her cruelly and driving her to commit suicide. 

    “Suspicion, however strong, cannot take the place of proof,’’ said the judge. “It appears that the victim and Kamalkishore had a marital discord for a long period of time, which, even according to the accused, led to mental degradation of the woman. That cannot justify the conclusion that the victim was subjected to such mental or physical cruelty, by the husband, that she was driven to death.’’ 

    The court acquitted Kamalkishore of the charges under the IPC that related to wilfully treating the wife cruelly, which allegedly led her to commit suicide (Section 498-A). 
The court also quashed the trial court order sentencing him to two years’ rigorous imprisonment. 

    The judge held that the accused could not be held guilty of contributing to his wife’s suicide. “Many have suicidal tendencies and they form opinions that those of ordinary prudence, will not,’’ said the judge. “That does not mean that those around (such an individual) can be held guilty of wilful conduct, driving such persons with delusion to suicidal tendencies or to suicide.’’ 

    Kamalkishore got married to Seema in 1992 and she gave birth to a daughter a year later. Six years later, Seema set herself on fire. Her 
brother lodged a criminal case against the husband. A trial court convicted Kamalkishore and the verdict was upheld by a sessions court. He then moved the high court. 

    The prosecution furnished letters by Seema where she alleged problems in her marriage and illtreatment by her husband and inlaws. Kamalkishore’s lawyers, however, argued that unhappiness in married life, or neglect by husband, could not be equated to cruelty. 

    The prosecution next pointed to a written statement by Kamalkishore, where he had referred to his wife’s weakening mental condition. The prosecutor argued that he had not bothered to find out why his wife had slipped into such a state and her mental deterioration could have been caused by harassment or illtreatment by him. 


    The court, however, did not agree. “Mere harassment, or conduct perceived by the victim as cruelty, would not be sufficient,’’ said the judge. “It was not proved that Kamalkishore had wilfully subjected his deceased wife to cruelty, which led to her mental degradation and eventual suicide.”

Contestine (Private service)     25 December 2009

Thanks Anil ji. But my wife has moved a private petition to the AdJCM for mental and physical cruelty and the judge has taken a cognizance of the petition. The Judge issued a summons to me and my family and we have taken bail for the same. Please guide me how to proceed with the case of 498a in West Bengal. She has also filed a case of maintenance where i have declared my salary and also declared my expenses and liabilities. Kindly suggest how to proceed with 125 case? Do i have to pay maintenance to my wife when she left her house without any valid reason and making all false allegations?

RAMAKRISHNA (GOVT EMPLOYEE / LAW QUALIFIED)     25 December 2009

I am so sorry to comment on Mr. Anil  responses. 

i could not find any logic to explain such a case, which is not at all comparable to `contestine' posted case.  Mr. Anil,  please reconsider your views, 

When i was appearing in high school exams, even i don't know the correct answer. still i used to write some story  just related to the text .    

it's just like that only.

Once again i am sorry to Mr. Anil.

Anil Agrawal (Retired)     25 December 2009

 I am sorry that what I said was misunderstood. It was said in the context of the judgement which allowed marital discord to rule the roost. The purpose was to highlight that you can fight with yoru spouse to your "heart's content" and such discord will be unacceptable to courts for divorce. 

In other words, fight and live, but, no divorce and such a fight is accepted as part of our married life.

My comments were not intended in the context of your query. 

sunil pagare (lawyer)     25 December 2009

If u want JUSTICE u have to fight for the same, so far 125 is concern if u proved in the court that there is no refusal & negligent on ur part to maintain her u will get success, but chances are  very few. Judgement of  SC in Arushee Halder v/s Debnarayan Halder is very useful for all men.

sibasish pattanayak (lawyer)     26 December 2009

hi,

yes, she has every right to file a case u/s 125 crpc, but a case u/s 498A IPC is not tenable at all, moreover if u want to contest ur case properly u have to appoint ur lawyer to fight both the cases seperate angle.on the ground of jurisdiction her case may quash by the Hon"ble HC and or advice to the respondent (ur wife)to file TP b4 the appex court for trnsfer the same at mumbai.For further clarification contact with ur advocate.

sibasish pattanayak,advocate , calcutta, 09477090999/09433074402/09231668664( 7 pm to 12.45 am)

 

Contestine (Private service)     27 December 2009

Thanks Mr. Sibasish for your suggestions. But why I have to pay her maintenance when she deserted me and left my home? When she made false allegations against me and my  family and now the court will pass an order in favour of her for maintenance. Is this the Law???? Now when there is no relation between both of us and she claimed that I have been torturing her physically and mentally then how she could ask for maintenance??? Can I approach the court for Dissolution of Marriage now?

pankaj (Engineer)     27 December 2009

File a RCR petition in Mumbai. your wife will have to give reasons and proofs why she had deserted you. This will help you win the maintainance and 498a cases against u.

Anil Agrawal (Retired)     27 December 2009

 Proof, proof and proof. SC says if woman says, rape, it is sufficient to convict him. Whatever law may say, being a woman, she has succeeded in putting you in a most unenviable situation. Perhaps friends in LCI will vouchsafe that the preponderance of cases u/s 498A go in favour of the woman.

Hardik Mehta (Family Counsellor)     29 December 2009

Contestine,

Your wife can file for the maintenance, but you can fight the case and deny the maintenance u/s 125(4) of CrPC. She needs to prove that she has left for the reasonable cause and unable to maintain herself. If she is edcated, then the maintenance will not be granted.

 

Regarding the 498a case, if there are no allegations of West Bengal, then you can go for quashing of the case on the grounds of jurisdiction. If not then you can appeal for the transfer of the case where the crime has happened. The Supreme Court will pass this matter and then they will have to come to Mumbai to ight the cases.

1 Like

Adv ramesh chheda (prop)     30 December 2009

if she has filed false case under 498A , then file defamation case aginst her and claim defamation compensation of larger amount.

to avoid making payment of 125 file a petition for restitution of conjugal rights in family court

Anil Agrawal (Retired)     30 December 2009

 Defamation?

The next generation will get the decision.

Hardik Mehta (Family Counsellor)     31 December 2009

Adv. Ramesh,

RCR will alone not stop 125 case, in this she has to prove that she is staying away with a reasonable cause. Once this is proved, maintenance will be granted.

Rajadiraja (Advocate/consultant )     03 January 2010

I  have a related question on this.  What if the marraige is declared null and void.  Thereafter, the wife files a DV case for maintenance and also a case under sec.125 in the name of the child for maintenance.  How can the man contest this to avoid paying maintenance for  the child to the mother, but would like to take care of the child's expenses directly by himself. 


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