LAW Courses
LAW Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Maverick 1234 (service)     29 May 2011

property rights in 498A and DV case

Hi,

my wife filed false 498A and Dv case last year when we had long fights after i refused to ask my parents to stay separately. the chargesheet is yet to be filed on 498A. Before this happened, she had over 2.5 lacs of my money in her bank account and I had also purchased a joint land property with her from my funds. Since i was threatened, i alongwith my parents left our house to avoid false cases apart from 498A and save ourselve from police harassment. We got bail immediatley for 498A. Since then ( for past 7 months ) my wife has been living in my house and i with my parents are staying separately in a rented apartment. We did have some meeting recently through the lawyers wherein she wanted to come back and live me etc but has cretain demands which iam not willing to agree to so on the DV case the arguments will start now for maintenance etc:

Also note that she suffers from BPD ( Borderline personality disorder ) which was diagonised few days before all this happened and she left home with the medical reports so i don't have them. The doctor howevere i willing to help me in case the court asks her to provide her inputs on the diagnosis.

It appears that she and her family are holding my house as ransom to force me to agree to their demands which Iam clearly not going to agree to. Alternatively she and her family wants me to pay a huge sum as alimony to get divorce which is beyond my means as well so i have refused.

After careful thought and consulation iam going ahead with the following:

1) Iam filing an afadivit in the court saying that iam willing to take her back and that she can come and stay with me in the rented apartment and my parents will live separately in our house which is registered jointly in my name and my mothers name. I have been paying EMI for the same as well.

2) That she has to agree to go through proper medical assessment and treatment aat a good hospital. Although she refuses to beleive that she suffers from BPD but iam certain after having gone through the abuse for over a year.

I need some advise on the following:

1) in view of above, how does court look at their argument on maintenance? given thats he is currently living in my fully fursnished house, has over 2.5 lacs of cash from me which i have proof of and that iam asking her to come n stay with me.

2) what happens if she dis-agrees to my stand ? can i request court that i will provide her  with separate accomodation and i alongwith my parents should be able to live in our house as she is not willing for first option.

3) She currently has residence orders from court which says i can't interfere with her possession. from what my lawyers tell me, it no way implies that i and my parents being owners of the property can't go and live there. if so, should we just go home directly and start living there without seeking any sort of permission from court? is there a provision in the law i can use to do this?

4) if we were to forcefully go and live in our house i beleive she would immediately request for cancellation of our bail under 498A. what can i do to protect myself and my family from cancellation of bail? is there any provision under the law to help me on that? from my perspective, iam thinking of getting 24 hrs survellience cameras installed in my house so that she can't go and make any false claims/allegations.

5) what happens if i stop paying EMIs of the house? how does court see it and can it go against me in court even if iam willing to provide her a separate accomodation? can the court force me to pay EMI and stay out of my own house?\

6) is there any other i can approach this to ensure that i don't conceed to any monetary demands or pay maintenance or  let them keep staying in my house.

will truly appreciate any guidance i can get on the above. I would like to mention that, iam willing to reconsider resumption of marrige given her health condition and on human grounds however iam not willing to conceed to any ridiculous demands or paying huge amount of money or letting them use my home as a tool to put me under pressure.



 7 Replies

Tajobsindia (Senior Partner )     30 May 2011

 

@ Author 

1. I am filing an affidavit in the court saying that I am willing to take her back and that she can come and stay with me in the rented apartment and my parents will live separately in our house which is registered jointly in my name and my mother’s name. I have been paying EMI for the same as well.
Take: Yes, this is the way ahead under Bharat Ratna DV Act that is demolish her “refusal” allegations point blank supported with facts.  



2. That she has to agree to go through proper medical assessment and treatment at a good hospital. Although she refuses to believe that she suffers from BPD but I am certain after having gone through the abuse for over a year.
Take: As per recent SC binding Law constituting medical commission against a wife is not to panelise her but to help her come out of mental illness based. Hence, you can very well file and application before concerned Court to “direct” wife to submit to recognised medical aid center / hospital.


I need some advise on the following:


1. in view of above, how does court look at their argument on maintenance? given that she is currently living in my fully furnished house, has over 2.5 lacs of cash from me which I have proof of and that I am asking her to come n stay with me.
Take: Given to understand that you have two houses; one on EMI on joint name (mother’s) and another rented one and currently she is occupying the EMI one and you and probably your mother are in rented one, the intent and object of Bharat Ratna DV Act is to remove starvation, destitution and penury of a wife and not for her “luxurious living (ininstance scenario a furnished house)”. Hence your arguments are tenable before the eyes of (just) Law.


2.
what happens if she dis-agrees to my stand ? can i request court that i will provide her  with separate accomodation and i alongwith my parents should be able to live in our house as she is not willing for first option.
Take: Yes, if under Affidavit this option is given then she will be put in a tight spot under Bharat Ratna DV Act “intent and object” as now what reason she has to give before Court for “neglect”.


3. She currently has residence orders from court which says i can't interfere with her possession. from what my lawyers tell me, it no way implies that i and my parents being owners of the property can't go and live there. if so, should we just go home directly and start living there without seeking any sort of permission from court? is there a provision in the law i can use to do this?
Take: The Court order is for “not to disturn her possessions” Make a list of her possessions and do as you are thinking as there is no injunction / restraining on those grounds and house owner cannot be expected to live in a bus stand kya ! You are just following Law as per interpretation of exact protection Order and nothing else
J


4. if we were to forcefully go and live in our house i beleive she would immediately request for cancellation of our bail under 498A. what can i do to protect myself and my family from cancellation of bail? is there any provision under the law to help me on that? from my perspective, iam thinking of getting 24 hrs survellience cameras installed in my house so that she can't go and make any false claims/allegations.
Take: Bail is a fundamental right of a person. It is not a valid ground to approach Court to cancel Bail provided “you are not disturbing her possessions within those four walls” Get this right pleaded before concerned court when and if matter reaches to that level !


5. what happens if i stop paying EMIs of the house? how does court see it and can it go against me in court even if iam willing to provide her a separate accomodation? can the court force me to pay EMI and stay out of my own house?
Take: Donot do that as the Bankers will then sell the property and give joint title holders only the amount which may sound too ridiculous given to understand escalating market rates. The other way to look around is that the charm of her filing DV and resident rights is generic as it is meant to be that is to throw away title holders and squat into it given to understand when equal residence status is on offer.


6. is there any other i can approach this to ensure that i don't conceed to any monetary demands or pay maintenance or  let them keep staying in my house.
Take: I will say you are well informed and on almost right track. Gyan has unlimited give and take scope hence read older posts your quench for same will be taken well care of as I can see you are “not at fault” atleast thought process wise.  

 

hema (law officer)     30 May 2011

dv act does not say that the title holder of the property go away and stay somewhere else on the rent and estranged wife will  be holding the property.  this is joint property of you and your mother.  so, undoubtedly your mother has got  clear title and rights on 1/2 of the property.  remaining 1/2 of the property is yours.  being your legally wedded wife, under dv act, your estranged wife has got right in 1/2 of your 1/2 of the property, that means you and your mother can have 3/4th of the property.  but dv act does not say that the property, for the purpose of providing residential rights (shared accommodation) shall be devided to metes and bounds. if you people do not have any childrent, what she needs is one hall, bedroom (sometimes combined hall and bedroom), kitchen and toilet and separate entrance.  think about it, whether possible.  if so, immediately move an application by you and your mother jointly before the dv court (magistrate court) seeking the recovery of the above said property with a proposal of providing the shared household as proposed above.  if you will not get any favourable order, immediately move the sessions court in appeal.  I hope you will get a favourable order. In my opinion, without getting court permission,  if you enter that premises, there is a likelihood of facing some evil consequences.

regarding maintenance, it is altogether different thing that your Rs.2.5 lakhs is lying with her.  that does not help you in fixing the maintenance.    at present maintenance will be decided on the basis of your and her earning and the life style of both of you. 

Arup (UNEMPLOYED)     30 May 2011

Before this happened, she had over 2.5 lacs of my money in her bank account and I had also purchased a joint land property with her from my funds.

 

---   do not belive the woman named wife. this is the morel of your story.

myself also victim of this.

Maverick 1234 (service)     31 May 2011

thanks for your response and valuable feedback, Tajobsindia. However i couldn't understand your response to point no 5. Also on point no 4,  would you be able to advise what can i do to prevent bail getting cancelled? I am told that she can simply go to court and say that I or my parents are harassing her? Will installing a 24 hr video/audio survelliance in my house ( and informing local police) help? Also, if and when i go back and saty in my house alongwith my parents in her presence, can i actually request court to assign protection officers ( for her as well as for my mother) at my exp? is that something court will look into?

Maverick 1234 (service)     31 May 2011

Thanks, Hema. just to clairfy, the house i mentioned is an apartment so there's only one entrance. However it's a 3 Bedroom apartment. So she can continue to use one bedroom which has TV installed etc with attached bathroom as she is currently using. I had locked the other two bedrooms ( one which my parents were using and guest room where i have my stuff). The kitchen is again common though. In this scenario:

1) can we move an application in the Dv court as you suggested asking for a shared accomodation rightaway? When i do this can i request for protection officers to be assigned for her and also fro my mother at my exp? will court view that as a positive move from my end?

2) do i need to do that now when iam filing an affidavit saying she can come n stay with me subject to certain conditions?

3) most likley she woudln't agree to my conditions ( medical treatement) to come and stay with me in the rented apartment. Can i request court to direct her to first provide her medical report and possibly consult a reputed doctor at a govt hospital? in this case where she refuses to stay with me in the rented apartment, do i still need to pay maintenance?

4)if so, can i inform the court that iam willing to provide her a separate accomodation say a 1BHK apartment on rent with the facilities that she currently has and i alongwith my parents be allowed to go and live in our own apartment? Should i still have a problem?

5) you mentioned that i should get court permission before i go back to my apartment with my parents.I did check on this earlier with my lawyer and i was told that court may simply respond to it saying that there's no order against me preventing me or my parents to go and live there so there's no question of taking permission from court. is that incorrect? do i need to have a written permission in the form of an order?

6) you also mentioned that there we could face some evil consequences if we eneter our apartment without court permission. i beleive you are referring to false police cases, she filing for cancellation of bail etc. do u think that will be the case if i have 24 hr video/audio survelliance installed within couple of hours that we enter the house?

also, any other measure i can take to prevent anything wrong/ un necessary harassment from happening?

will appreciate if you can clarify on the above. Please note that my intent is to ensure that i and my family are secure and our property is not at risk. I have more than enough evidence to prove that we are innocent but as we know court takes it own time and till then i don't to succumb to any unreasonable ask or demands and willing to fight it out in court.

just to highlight, i have below evidence:

# that i have infact spent/given more than a lakh of rupees to her father and brother since marriage inclding her father's treatement for heart probelm. This has never been returned back to me.

# i have evidence to show that i and my family paid for the entire marriage exp incl jewlerry

# i transferred over 2.5 lacs to her account about 20 days before things went really bad

# i have sms"s where i was threatened about 498a/Dv case, divorce

# i can easily prove that i have never taken a penny from her or her family although they are falsely claiming that they have given me 7.5 lacs by showing  source of th money from some property sales documents which are like 8-10 yrs old. I can provide all my bank or tax details cos i never took any such money. in fact they will have a tough time explaining where did they get this money and where was it all these years and if there was ever tax paid by them on the same.

# i also can prove with email/documents that early last year i helped her brother get a job in the organisation i work for although he didn't join there.

# she has claimed that i had beaten her severly 3-4 times which is again false. she again doesn't have any evidence of any sort of physical injury etc cos it never happend.

# I purchased a land property by making 50% of the cost of the property as down payment and took loan for the balance. Out of the down payment, part was actually given by my dad and balance i arranged by selling my investments and taking personal loan from my company. Again i have clear evidence for all of this. Out of the 7.5 lacs that i mentioned earlier, she claims that she gave me 4.5 lacs for purchase of land property.

# I have a written proof in her own hadnwriting that the she was fighting and arguing with me and didn't want to live with me as that she didn't want me to spend any money on my parents and also she was upset that i wasn't asking them to go and live separately leaving their own house.

# I have a hand written letter from her father to commissioner of police ( seeking help) wherein he has mentioned clearly that i was supporting him financially.

all she has been saying in DV case is that i had beaten her few times and that i and my family was harassing her for dowry and finally that i was forcing her for mutual consent divorce . None of this is true except that after i tried everything to resolve the matter and they continued to harass and threaten me, i told them clearly that i want divorce out of anger and frustration especially cos she and her family refused to beleive or understand that she suffers from BPD ( which again is due to bad childhood due to problems between her father and mother )

In light of the above evidences that i mentioned, can you advise how should i take these up in court? Iam going to ask for in-camera proceedings as well.

Maverick 1234 (service)     12 June 2011

can you please respond?

Maverick 1234 (service)     25 June 2011

dear Tajobsindia,

further to my last update. In the last hearing we agreed to pay my wife maintenance of rs 10,000 although she was demaning 30,000 plus and she will continue to reside in my apartment for now. The judje has also fast tracked the case for early judjment as both me and my wife on the other side were keen to fight out. She kept talkinga bout about non sense reasons. anyway, after taking couple of adjournments she has finally filed for evidenece , affidavit. The next hearing is scheduled for 16th July. I had few questions where i need your direction:

1) with fast tracking of the case is there a timeline by which the court will make a decision? My lawyer told me it's usually 2 months which can strech upto 3 months but not beyond that. is that true?

2) In the evidence marking/cross examination stage, what kind of hard evidence would my wife/her lawyer would need to produce to make a strong case?

3) how soon do i get a chance to produce my evidence? Also, since she suffered from BPD ( Border line personality disorder ) which is one of the main root causes for the problem and something she and her fmaily have refused to accept and understand, I have requested the doctor who diagonised her with BPD to appear in court. The doctor is from a very reputed hospital and is willing to even come to court once she gets court summons. My lawyer says he will arrange for that but i want to understand if there could be any reason court may not summon her? iam aksing this cos i don't have my wife's medical report which she took away so the only way i can prove her BPD problen for sure is to get the doctor. The doctor has been very supportive and kind to readily agree to help me.

4) Since i have agreed for 10K maintenance, can the court now increase this anytime? also, if i were to request court in due course that i and my parents want to go and live in our house and i will provide my wife a rented accomodation, will court be OK with that and in such situation will court increase the maintenance amount even if i pay the rent and provide her with all the facilities she currently has?

5) To prove my innocence, what is the best approach you suggest?

6) what would be a good time to file counter cases , if any? also if you can provide some feedback on what kind of cases can i and my family file against my wife and her family?

will apprecaite if you can advise me on these questions. thanks a lot for your help.

 

 


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Related Threads


Loading

Post a Suggestion for LCI Team
Post a Legal Query