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Kaatu Poochi (Kaatu Poochi&Co)     23 June 2014

The Funniest Joke

In my DV case

1. Wife claiming domestic right in her father-in-law address.  :P

2.  Wife also claiming property share in her father-in-law self acquired property (How the court allowed the petition)  

3. The Great Magistrate passed exparte order, Granted domestic rights in her father-in-law property address, without any notification. ;(



Learning

 15 Replies

Q Slinger (NA)     24 June 2014

ARe you serious? Is this what happened? Are you able to paste the orders here please? Will be of good reference to others. Thanks.

1 Like

Sudhir Kumar, Advocate (Advocate)     24 June 2014

no facts given.

1 Like

DV Act Buster (CEO)     24 June 2014

It is very easy & common practice for a MM to give right to residence as protection under DV Act to the complainant wife if FIL's house is the shared household. Complainant wife will not get a share in the property of the FIL.
1 Like

Kaatu Poochi (Kaatu Poochi&Co)     24 June 2014

@Q Slinger :

Yes, I am serious in my Dv court Judge passed a exparte order without any paper announcement, notification. Now my set aside completed. 

@DV Act Buster: 

Section 17 of the Domestic Violence Act as follows:- "40. ...... Insofar as Section 17 of the said Act is concerned, a wife would only be entitled to claim a right of residence in a "shared household" and such a household would only mean the house belonging to or taken on rent by the husband, or CS(OS) 505/2010 Page 12 of 15 the house which belongs to the joint family of which the husband is a member.

1. I have no rights to claim my father property share.

2. In this case wife submitted the petition

      a) Claiming living rights in her father-in-law property

      b) Claiming share in her father-in-law property

      c) Magistrate Court accept this petition and

      d) Judge passed exparte order, without any notification.

DV Act Buster (CEO)     24 June 2014

Typically if the husband stays in joint family in house owned by his father, then the complainant wife can can get RTR in the same house. Also, go thru below mrntiond for better understanding of "Shared Household" ( My last reply to this query ) In its first judgement on recently notified Protection of Women from Domestic Violence Act 2005, the Supreme Court has said section 2(s) of the Act which gives right of residence to a married woman in a shared household is not properly worded and appears to be the result of clumsy drafting, but "we have to give it an interpretation which is sensible and which ds not lead to chaos in society." A Bench, comprising Justices S B Sinha and Markandey Katju, in a judgement dated December 15 had ruled that "as regards section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member." The 11-page ruling came on an appeal filed by S R Batra and his wife against the order of Delhi High Court following the petition of Taruna Batra, wife of Amit Batra. The apex court further said, "The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which he is a member. It is the exclusive property of appellant number two, mother of Amit Batra. Hence it can not be called a shared household." Amit Batra filed a divorce petition against his wife and as a counter the wife filed a case under sections 406(criminal breach of trust)/498A (harrasment for dowry)/506(criminal intimidation) and 34(common intention) of the IPC and got arrested her in laws, her husband and her married sister in law. Amit later shifted to his parents' residence and she also shifted to the same place and filed an application for injunction which was dismissed by the trial court, but the High Court reversed the order of the trial court. The apex court disagreeing with the High Court said, "In our opinion, the above observation is merely an expression of hope and it ds not lay down any law. It is only the legislature which can create a law and not the court. The courts do not legislate and whatever maybe the personal view of a judge, he cannot create or amend any law and he must maintain judicial restraint." The court also rejected the contention of the counsel for the wife that in view of the Act, his client cannot be dispossessed from the second floor of the property, in question, which is situated at Ashok Vihar, New Delhi. Justice Katju writing the judgement for the Bench said, "We are of the opinion that the house in question cannot be said to be a shared household within the meaning of section 2(s) of the act. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past, that property becomes a shared household. Such a view would lead to chaos and would be absurd. It is well settled that any interpretation which leads to absrdity should not be accepted,"
1 Like

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     24 June 2014

Immediately appeal against that orderin the High Court by filling Criminal Writ(Artcle 227).


Please see my post for sample petition. Article 227 sample petition I shall upload soon.

https://www.lawyersclubindia.com/forum/Fight-against-misuse-of-498a-ipc--103100.asp

1 Like

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     24 June 2014

Mr. Sudhir Kumar,

 

We are missing Mr. Rocky Smith very much.

Kaatu Poochi (Kaatu Poochi&Co)     24 June 2014

I accept  section 2(s) of the Act ,section 17(1) of the Ac

In my DV Case

1. I'm Living 1000 k.m different from my fathers residence location.

2. Wife also mention this factor in her complaint petition.

3. After marriage my wife 2 months only temprorily living in my parents house

@Shatyaprakash Bani:

Set aside completed in this DV exparte order

DV Act Buster (CEO)     24 June 2014

Go for appeal in sessions court against the MM order with evidence of your independent home &the fact that your wife was aware of your address. Why was the MM order ex parte ? Maybe the wife & court did not have your proper address to send you the notice ?? You need to establish the shared household with proper supporting documents to falsify her claim.

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     24 June 2014

Article 227 sample petition I shall uploaded on the following link. Please see.

 

https://www.lawyersclubindia.com/forum/Fight-against-misuse-of-498a-ipc--103100.asp

1 Like

T. Kalaiselvan, Advocate (Advocate)     26 June 2014

The court has made an ex-parte order on her petition because you chose to abstain from appearing before the court after receiving summons on the DV case(?), thus, without contesting or challenging her case how do you expect the magistrate to know the facts of the case.  She through her petition would have sought for residential rights stating that to be her last resided matrimonial home, hence the court has rightly ordered so especially when you chose not to contest and left it tom be decided exparte in your absence thinking that her false case may not be decided in her  favor by the court. So it was your negligence that you had to face the situation.  As you have stated that you have set aside the exparte order, you may challenge her case and fight it tooth and nail to prove her that she always had been wrong and will never succeed in any of her false case against you.

2 Like

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com))     26 June 2014

Yes Mr. T. Kalaiselvan, Advocate is right. I did not see that it was a ex-parte  order. vary sorry.

 

How did you get ex-parte order? Because of unawareness? if yes, then you can make a petition of the same ask for revision.

Kaatu Poochi (Kaatu Poochi&Co)     27 June 2014

...

Kaatu Poochi (Kaatu Poochi&Co)     27 June 2014

I have completed the set aside. Now my case in live. 

But the same time wife not have living rights in her father-in-law property.


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