Mcd or contested divorce

@Rita. Mr. Kalaiselvan is a very good advocate unlike some advocates in this forum who sometimes write total nonsense. I say this based upon his opinions in this forum. Usually Adv. Kalaiselvan's opinions are on point and correct. But, I respectfully disagree on a couple of points here. 

"Though you will not be entitled since you are employed," I disagree. It is not whether you are employed or unemployed that is important. It is the total income that you get and if it is sufficient to sustain a life style that you were accustomed to when you were living with your husband OR the one that he is having now after separation. This in turn has to be analyzed mathematically. Your interest or dividend income from investments, rents from properties, salary from employment all adds up and then the determination is made on whether you qualify or not.  That is why there is trial. Husband tries to show all sources of income for the wife and wife tries to bring evidence of husband's earnings.  Finally after all evidence is presented, the Judge gets a clear picture of the finances of both sides and decides if maintenance has to be provided and if so, how much.  The law is not that simple. What if a woman can maintain herself but chooses to remain unemployed? That is where good advocates play an important role to argue in their client's favor based upon the facts of the case. 

Regarding the flat/house. You are at least the co-owner of the house if not the owner. You did not say whether title is shared or exclusive to you. Irrespective of that, this will cover Right to Residence. Your monthly payment will have to be shown by you as your expense so that it works in your favor.  Try to negotiate something so that you get the title transferred exclusively to your name, if it already is not.

Finally... remember. As Adv. Kalaiselvan said, you need to make applications and present facts yourself. The law is clear. Judges cannot grant any relief that is not prayed for in a petition or application. So you need to file applications and petitions and your prayer paragraphs must expressly seek the relief you want.  You must allege all fact and file affidavits and evidence in support. If Judge grants anything that is not in the prayer clause, it can be easily overturned on appeal on procedural basis alone.

Thanks both of you again.

Few months ago,my husband had agreed to give me the flat with clear title and had asked my lawyer to make a draft petition .When we mailed the draft to his lawyer,no response came from him.And then suddenly last week he sent the divorce petition.

So now we will have to ask for the same complete flat with clear title which he had agreed initially and mainetenance  for my child,streedhan in our reply to his petiton.

Regarding the title shared,I am the first owner and then my husband in the flat.And for loan I am co borrower.

I am sure he is going to contest severely  for the flat because he always said you will not get it .I think they just did a gimmick of agreeing initially during mutual consent to see what exactly I will ask from them.

he has put lot of allegations against me in the petition which I got from court.stating that I have taken 50 lacs of jewellery from them and kept at home.he is claiming that I should pay him 10 crores

Can I file any DV now since he did this false alegations against me and my family.saying tht we were greedy for his money.

he has also said that i am good enough to keep the child.so custody should be given to him.

how shud we respond.I am compltely shaken and worried.

Rita, I strongly recommend against filing a DV petition. It is not out of sympathy for men in general but based upon practical aspects of the Act. There is nothing in the DV Act that entitles a wife to something that she would not be entitled to otherwise under any of the other pre-DV Acts such as the Family Court Act, the Hindu Marriage Act, the Hindu Adoption and Maintenance Act, (or whatever Acts are applicable to your religion), 125 Cr.P.C., etc. There is this sense of urgency in the DV Act that the petition has to be disposed of in 60 days. In practice, it take at least 600 days or even 1500 days in some cases. There are some provisions in DV which may give an advantage to women in a live-in relationship outside marriage which is not applicable to you.  DV Act also does not have criminal provisions to imprison the husband which some women are driven to think by their advocates.

Other than giving some relief to women in live-in relationships, DV Act was a BIG gift to advocates who are the only ones who have benefited from it or can benefit from it. So, stay away from it. If you have a lot of money and don't know what to do with it, spend it on your child!!

If your husband has made false allegations, you can prosecute him for perjury AFTER the statements are proven false and AFTER the case is disposed.  It is premature to do so now and DV Act is not the forum to do so. It should be done in the same proceeding and the Judge has to refer it to another Judge... Check details and correctness of my statement here with your advocate.

You can, if you are law-conscious and savy, file a separate compensation case later under the law of torts seeking compensation for fraudulent statements made in Court. This is a separate case altogether which is different than costs that are sought by advocates in their responses.

Making outrageous allegations in a petition is the general modus operandi in all Indian litigations because perjury is rarely prosecuted. Therefore, all you can do now is to prove those allegations to be false and then file for perjury. If you are serious, be ready to take the perjury allegations all the way to the High Court because trial courts usually trivialize perjury.

"how shud we respond.I am compltely shaken and worried."

If you are "shaken and worried," then your adversary has already won. Key in all litigations is to remain strong and show your strength to your adversary and to your advocate (who in some sense is also an adversary as every weakness will be exploited by him/her to give you an excuse for more filings, like DV Act and make more money).

Be focused on what you want. Be unemotional. Make prompt filings to defend all allegations. Make new filings and counter-filings, only if required.  Counter-filing is very important - It is not the same as defending or filing a new petition. Most advocates miss this point. For example, if he files divorce petition on cruelty, you file a counter-petition for divorce or judicial separation based upon cruelty by him. A party usually claims judicial separation instead of divorce if that party wants to prevent the other party from entering into another marriage quickly.   Again this is something that many advocates just forget in their strategy...  May be applicable to you as a negotiating tool towards a settlement since he is asking for divorce to get married to someone else?  Judicial separation does not entitle a party to enter into another marriage. They have to wait for I think two years and then file a separate application for divorce... Judicial separation is more easily granted than divorce so your counter-claim will be viewed more favourably by the Judge than his claim for divorce.

All filings must be made with the end-goal in mind. Advocates in India are burdened with 100s of cases and therefore it is actually not fair to expect them to remember each and every case. Thats just the state of affairs. So, before you sign something, make sure that the filing addresses your key goals. For example, while filing maintenance and right to residence, do not forget to claim title to the flat and/or residence property as you already have partial claim to it, otherwise you may be hit with constructive res judicata defenses later when you seek it separately after maintenance/right-to-residence is decided.  Family Court has jurisdiction to decide on title of jointly held properties.

Because you have a child, I got sympathetically carried away with my advice. GOOD LUCK!  Just a reminder:  I AM NOT AN ADVOCATE.

Thanks to give me the picture of DV act and judicial separation and about  perjury.Will talk to my lawyer and discuss further steps .

Even at the cost of facing the baseless allegattions those may be thrown at me that I am a greedy lawyer and spoil the matrimonial relationship (as if it were very fine) and depriving the child of both parents' love and furthe exaerbate the already botched relationship, after taking total facts of your case into consideration, I strongly advice you to file domestic violence case seeking the residential rights and also maintenance for yourself and the child.  The reason for filing the DV case is not that he placed very scurrilous allegations against you in his petition, but for his extra-marital relationship.  During the subsistence of marriage, husband's extra-marital relationship is undoubtedly domestic violence and the wife has got right to approach the appropriate forum to get her right ebfirced,  His false promise of offering you the flat and lateron renege his own promise putting you in very awakwar situation of living with your parents, where as he has been maintaining that extra relationship with the other lady are further reasons for your going to DV.  DV has got interim relief of residential right and once you get that right quickly, within six months from the date of filing, he will come back to you again with the same proposal of MCD along with offer of flat.  Every advice given by Sh. Samir and Sh. Kalaiselvan I echo except that former's restraining advice to you not to go for DV.

warm regards. 

Even at the cost of facing the baseless allegattions those may be thrown at me that I am a greedy lawyer and spoil the matrimonial relationship (as if it were very fine) and depriving the child of both parents' love and furthe exaerbate the already botched relationship, after taking total facts of your case into consideration, I strongly advice you to file domestic violence case seeking the residential rights and also maintenance for yourself and the child.  The reason for filing the DV case is not that he placed very scurrilous allegations against you in his petition, but for his extra-marital relationship.  During the subsistence of marriage, husband's extra-marital relationship is undoubtedly domestic violence and the wife has got right to approach the appropriate forum to get her right ebfirced,  His false promise of offering you the flat and lateron renege his own promise putting you in very awakwar situation of living with your parents, where as he has been maintaining that extra relationship with the other lady are further reasons for your going to DV.  DV has got interim relief of residential right and once you get that right quickly, within six months from the date of filing, he will come back to you again with the same proposal of MCD along with offer of flat.  Every advice given by Sh. Samir and Sh. Kalaiselvan I echo except that former's restraining advice to you not to go for DV.

warm regards. 

@Adv. Chandrasekhar. You are not her advocate so I certainly see no conflict in your advise to her to file a DV petition, let alone anyone, including me, calling you a greedy lawyer for advising her to do so.  It is good to see some one disagreeing because that leads to a healthy discussion. 

However, since I immersed myself in this post, for the sake of a fruitful and informative discussion, as our Rita behen's issues typifies most DV cases, lets take a look at your justification for filing a DV case. I respectfully disagree for the reasons I explained initially but I repeat with specificity to Rita's case again: 

You have not shown what it is that she can get in DV (among the things you have identified) that she cannot get through the regular non-DV Acts? All her allegations, including extra-marital affairs, can be interpreted as cruelty and mental cruelty by him to her, All the interim relief you suggest under DV can be secured by filing appropriate petitions or counter-petitions under non-DV-Acts and later filing interim applications by her under these non-DV petitions. The right to residence (interim as well as final relief) is an integral part of any maintenance application not only under the different Acts but also under 125 Cr.P.C.  The key is proper drafting by her advocate.  A good advocate does not need many filing under many Acts. He prefers to take care of everything, tersely under as few Acts as possible.

Under the hood, the definition of "Domestic Violence" is no different than the interpretation of the term "Cruelty" even though the drafters of the DV Act actually chose to define "Domestic Violence," as if to justify a new Act.  The term "Cruelty" is not defined under any Act and therefore Rita behen or anyone else can cram a lot of allegations under cruelty. "Domestic Violence" is expressly defined under the DV Act and therefore is more restraining.  In fact, it has a hierarchical structure in definition and is therefore more fragile.. it relies on the term "Domestic Relationship" which in turn requires living together in a 'Shared Household,' etc.  Cruelty between husband and wife can take place anywhere, any time, etc. Therefore it makes a lot of sense for a woman to file petitions which rely on "cruelty" rather than "domestic violence."

As for promise of offering flat, etc. It technically falls under the Law of Contracts and enforcement of the same would come under the Specific Relief Act and not under DV. In fact, there are judgements that  specifically clarify that "title" to a property is a pure civil issue outside the jurisdiction of the Magistrate or under Cr.P.C. or under DV. But she can seek title under the non-DV Acts in the Family Court.SO ANY RELIEF SHE CAN SEEK IN THE DV ACT CAN ONLY BE A SUBSET OF WHAT SHE CAN SEEK UNDER NON-DV ACTS. 

In a civil Court,  her allegation of a promise, absent solid proof, would be very difficult to prove. True that oral agreements are enforceable, but the level of proof rises. Reliable and unbiased witnesses will have to be provided. Also, such a "promise" would tantamount to a settlement and a settlement under the law requires reciprocal consideration, that is credible. She will have to prove what she was willing to give him something in return for his promise to give her the flat. It gets complicated. The problem is that most Family Court advocates are ignorant in law beyond the core Family Court and related Acts and therefore end up misguiding their clients. 

True that in theory the woman is supposed to get quicker relief under the DV Act. In practice, that is far from true.

I successfully defended a DV petition and a lot more, without a lawyer because I found all the lawyers I hired were less informed than I was through my casual reading.  And I did this all the way to the High Court. And my ex-wife had hired some of the best (at least in terms of fees and team-size) in the profession.  Therefore, though I am not an advocate, please take my advice seriously.

I type at super-speed and am a published author globally (no, not in law or fiction!).  I say this only so you do not brush aside my analysis as that of a non-advocate. Also, as you can see, I like to write... and write at length...   I HOPE THAT THIS POST OF MINE IS READ BY OTHERS TO UNDERSTAND THAT FILING ANY PETITION UNDER THE DV-ACT BY A WEDDED WIFE IS A WASTE OF TIME IN MOST CASES AND BENEFITS ONLY THE ADVOCATES (There may be some extreme cases, mostly if not exclusively concerning non-married relationship, to justify a filing under DV but at least Rita behen's facts, in my humble opinion, does not justify the filing of a DV case).

Proving tht he is having extra martial affair is very difficult.i have few emails,hotel and movie tickets bought in bank statements and spending 5000+ in 5 star hotels and 1000 on cafe on a single day.And tht lady's shopping recipt lying in the house are just the proof though I have seen lot of smses in his mobile from her and few times caught on phone while he was on movie theatre he said tht he was in office canteen but without proofs how can I prove what I can  make out of it.on the contrary he has said that I am very suspicious and inquiry about him on office number.

Not sleeping with me and him moving out in  another room from past 3 years and has put up saying that I am not interested in him.He has put up saying tht I am not allowing him conjugal rights and though staying in same house he is away from me and therefore it is cruelty to him and he has asked for divorce.

ulta chor qotwal ko date.

he has some voice recordings which he has transcriptted but most of them are not substantial. but it is an attack on my privacy to do recording so this will not be considered as proof that is what my lawyer is saying.Based on the recordings he said that i abuse him and his family so it is cruetly to them.

for now my lawyer has asked for all allegations just put your reasons that they are false and provide the actual facts He will put in legal and technical corrections to the facts..Since my child's school will start in June,he said we will ask for entry to that house where he has put my stuff ,more we can ask is to not allow him to enter as he has constituted crueltly .but it seems we can try for that but judge will order him   to stay in the same house.

"he has some voice recordings which he has transcripttted but most of them are not substantial. but it is an attack on my privacy to do recording so this will not be considered as proof that is what my lawyer is saying."

 It will be accepted if the bonafide of the record is proven

1. i dont understand that when he himself is inviting you for co habitation its your refusal.
2. keep aside his ill treaTMENT, b cos if he has ill treated you , you should have filled a divorce.
3. he filled claiming desertion with cruelty.
4. if residence is your motive, he has already asked you to join, at max you will get paper orders from court.
5. what next, monetary reliefs youll get and he will appeal what next.
6. house since you are co applicant you have right in it, even if it gets auctioned you can still claim rtr at later stage.
7. do one thing :- keep your calm for few months, defend his divorce and claim sec. 24 or 125crpc, wait and watch,........for running his divorce he will pay in 24hma if not you have 125crpc
8. rtr you can ask in any of your maintenance cases.