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Sidharth (Officer)     01 April 2014

Wife filed divorce under section 13(a) after loosing 125

Respected Members. I have had valuable suggestions from this site regarding 125 CRPC case against me. The brief of my case is that I got married in Nov 2010, There were always adjustment issues from Wife's side.In Nov 2012 wife left the house without any just cause saying She will study PhD from her home. Later She sent notices for Mutual Divorce (while asking Rs 25 lakh on Phone) and threatened to file fake cases against me if I don't pay up and agree. I did not agree and sent a reply asking her to come back. Instead She filed Section 125 CRPC for maintenance asking Rs 50,000 per month (more than half my salary). I filed Section 9 in reciprocation. Now I have won the Section 9 Case Ex-parte as she never turned up. As for Section 125, interim orders have been passed by Judge for Rs 10,000, Final hearing is pending. In this she had alleged that I am impotent, Used to torture her physically and had thrown her out of house in Nov 12, However She has no evidence to support as this is all false. I have submitted sufficient evidence to support my reply and Judge seems to be convinced about them. Now as She feels that she may loose Sec 125 case, Using the exact same wordings She has filed Divorce under Sec 13(a) in the same court. Now I have few questions

(a) Can same allegations be filed again under Sec 13 if the decision is pending on them in Sec 125. If No then Can I ask for a stay on the Sec 13 Case till SEc 125 is finalised.

(b) How can I use decree of Section 9 in my favour which states that my evidence are irrefutable and She has left the house on her own accord, to nullify the case under Sec 125 (Using clause 4 of CRPC 125)

(c) She is now threatening me out of court that She'll file 498 and then DV 2005 if I dont't give up and pay her, Can she keep filing the same fake allegations under different sections without and substantial evidence. If NO then how to stop this harassment.

(d)she had also put an application asking for Rs 1,00,000 from me to enable her to pay legal fees for the divorce case, Is there any clause which allows for this? Probably the judge has already rjected it, but he has asked me to submit reply for it. 

Please help me out on this, my hearing for CRPC 125 is on 28 April and on same day I have to submit initial reply of Sec 13(a)

 



 11 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     01 April 2014

1[13A. Alternate relief in divorce proceedings. —In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.]

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     01 April 2014

Dear Querist

my opinion on your queries are as under

a) Can same allegations be filed again under Sec 13 if the decision is pending on them in Sec 125. If No then Can I ask for a stay on the Sec 13 Case till SEc 125 is finalised.

Opinion: she can file the same, there is no restriction but you have right to file your reply with RCR Decree before court.


(b) How can I use decree of Section 9 in my favour which states that my evidence are irrefutable and She has left the house on her own accord, to nullify the case under Sec 125 (Using clause 4 of Cr.P.C 125)

Opinion: you can argue the matter on 125 (4) of Cr.P.C that there is no sufficient reason to live separately and on this ground her 125 case may be dismissed.


(c) She is now threatening me out of court that She'll file 498 and then DV 2005 if I dont't give up and pay her, Can she keep filing the same fake allegations under different sections without and substantial evidence. If NO then how to stop this harassment.


Opinion: you should file a criminal case u/s 383/384 of IPC for extortion against her.


(d)she had also put an application asking for Rs 1,00,000 from me to enable her to pay legal fees for the divorce case, Is there any clause which allows for this? Probably the judge has already rjected it, but he has asked me to submit reply for it

Opinion: yes she can file an application u/s 24 of Hindu Marriage Act.


T. Kalaiselvan, Advocate (Advocate)     01 April 2014

@Mr. Sidharth: answers to your questions"

 

(a) Can same allegations be filed again under Sec 13 if the decision is pending on them in Sec 125. If No then Can I ask for a stay on the Sec 13 Case till SEc 125 is finalised.

Yes she can aver the same pleadings in the divorce case too, there is no restriction tom it, but she has to prove it at both the places.

(b) How can I use decree of Section 9 in my favour which states that my evidence are irrefutable and She has left the house on her own accord, to nullify the case under Sec 125 (Using clause 4 of CRPC 125)

You said that you have obtained an exparte decree in your section 9 petition(?), If so what  is irrefutable in it?  Of course you can challenge the 125 case by stating that though she has voluntarily abandoned her matrimonial house, you with a good intention and also to save your marriage and also have always been willing to be live with her the married life for ever you have filed the said RCR petition, but it was she who was not interested in continuing the marital voyage, failed to respond to the RCR petition as well to your earnest requests for rejoin.

(c) She is now threatening me out of court that She'll file 498 and then DV 2005 if I dont't give up and pay her, Can she keep filing the same fake allegations under different sections without and substantial evidence. If NO then how to stop this harassment.

She can adopt all types of threatening activities among them the abuse of women favor laws, but at this belated stage  she may stand to lose the ground even if she succeeds to file the apprehended criminal cases against you.

(d)she had also put an application asking for Rs 1,00,000 from me to enable her to pay legal fees for the divorce case, Is there any clause which allows for this? Probably the judge has already rjected it, but he has asked me to submit reply for it.

On her application you are required to file a counter or objection based upon which the court will be able to decide and dispose her application.

First you contest her 125 case appropriately and then think about filing your counter/reply/written statement to her divorce petition, because the proceedings in 125 in your favor may help you to contest her divorce petition too in a fitting manner.

Biswanath Roy (Advocate)     09 April 2014

Rightly opined by Learned Mr. Nadeem Querishi.  His opinion under clause (c) I OPINE TO ADD SEC.503 IPC along  with secs. 383/384 IPC  as the wife followed criminal intimidation for filing false 498A IPC and DV case..

Yadanand Legal help (maintenance divorce remarriage = yourscrew@gmail.com)     09 April 2014

You may add any sections  of IPC  but it will not be sustained in the court..

 

And even if crpc 125 fails it can not stop  DV ACT and even HMA CASES.

 

Laws have come fast  AND FAR DV ACT EVEN  NO FAULT HAS TO BE PROVED  AND HEAVY LIABILITIES HAVE BEEN PUT ON HUSBAND AND HIS RELATIVES.

.and old time tactics do not work on the other hand it will spoil the case.


FIND TECHNICAL FAULTS AND CONTEST ON THEM WHICH WILL BE MANY.

Biswanath Roy (Advocate)     09 April 2014

In all cases EVIDENCE ITSELF IS THE JUDGEMENT. be that whatever the provision of law is.  I totally disagree with the views that old time tactics do not work but will spoil the case. Legal tactics follows by appropriate and correct approach and presentation before the court to enable the Judge to understand the just grievance instantaneously.. This is what I  EXPERIENCED IN CONDUCTING TOUGH CASES IN DIFFERENT HIGH COURTS IN INDIA..

Yadanand Legal help (maintenance divorce remarriage = yourscrew@gmail.com)     09 April 2014

DV cases are run at lower court and not in HIGH COURTS.

 

More over just to update your knowledge what is happening in DV CASES , please read the agonies of DV CASE VICTIMS in this site alone of the people who had gone to HIGH COURT and even SC and they were bounced back to lower court.

 

AND SINCE ALL HIGH COURT CASES ARE REPORTED PLEASE GIVE REFERENCE IN WHICH DV CASE OR CASES YOU HAVE ADDED IPC SECTIONS AGAINST THE COMPLAINANT. SO THAT LACS AND LACS VICTIMS WILL BE BENEFITED.

Biswanath Roy (Advocate)     09 April 2014

i DEALT WITH THE COMMENT ON "OLD TIME TACTICS DO NOT WORK".  SUCH COMMENT IS UNWANTED AND OBJECTIONABLE BECAUSE OLD TIME TACTICS IS THE FATHER OF  NEW TIME TACTICS..

Sidharth (Officer)     10 April 2014

Thank You All The Members for your valuable Advise. I have few clarifications to make in regards to Mr Qureshi, Mr Kalaiselvan and Mr Roy's help.

1. Both The CRPC 125 and Sec 13 have been filed in the same court with the same judge, however since the CRPC 125 was filed 10 months ago, I have submitted the repliy with all the relevent evidence and the case is scheduled for cross examination on next hearing, However Sec 13 was filed last month and I have to submit the reply (Which is bound to be same as reply to CRPC 125) on the same date. That is why I had this doubt that If the judge is satisfied with my reply and evidence in CRPC 125 during cross exam, Can't an application be made to put Sec 13 hearing on hold, So that once the allegations are judged upon in CRPC 125, The entire Sec 13 application itself becomes redundant.

2. I have no proof of her threats, She and her family keeps harassing me in the court while waiting for our turn and keep making these remarks that this is not the end, be prepared to go to jail, we'll file 498, we'll file DV. Infact they even made this remark verbally in front of the judge itself. So can Sec 383/384 and 503 be filed based on this.

3. In the Interim Order for Sec 125, The judge has ordered me to pay her Rs 10,000 per month instead of Rs 50,000 as per her demand. However, He has remarked that the applicability of Clause 4 of Sec 125 is left to debate in final hearing, Inspite of me giving all the evidence which I had to prove the applicability of Clause 4. Is this interim order any indication of the probability of me loosing the case in final hearing?

4. Also in the reply to Interim CRPC 125 I have submitted 8-10 citations of previous HC and SC cases where professionally qualified and previously working wives have been denied maintenance. In my case my wife is MBA and BEd and Pursuing PhD for past 2 years and was working before the marriage, The judge discarded my citations stating that since she is undergoing education, she can't be expected to work and hence the interim maintenance. Can this order be challenged on the grounds that PhD has no time limit and she can continue to pursue PhD without actually wanting to complete it, just to continue getting maintenance. The fact that she is not utilising her previous education to sustain herself at a time where she claims she has no food or clothes, should she be allowed to continue not working at the cost of my expanses instead of working?

5. All her allegations in both CRPS125 and Sec 13 have been without even a single evidence(all being false), Hence I said that I have submitted irrefutable evidence ike her bank passbook copy showing money deposited by me and withdrawn by her through ATM both while with me and after leaving me (which negates her allegation that I didn't give her any money while she was with me and threw her out of house after snatching her ATM), Around 10 tickets for her travel from my home to hers and back in a period of two years booked by me ( Which negates her allegation that the last time she went, I had thrown her out forcefully after booking her ticket...!!), Her allegation that I am impotent can be negated by medical report but the judge has not ordered me to get one as yet.

6. After my application, She has filed an affidavit that she and her parents have no income at all, However I know for a fact that at the time of her filing Sec 125 her mother was working in a Govt School as Principal and Father is Retired from IT Dept, Thus both are definitely getting pension, Also they have a three storied house of which they rent out two stories thus earning rent. How can I collect this information on paper and then can I challenge her affidavit for misleading the court?

Biswanath Roy (Advocate)     10 April 2014

When anybody prosecutes any person under a particular provision of law he must follow the particular ingredients which are to be required to establish the allegations along with relevant evidences as per evidence act. The accused on the other hand shall have to deny the applicability of said ingredients either as not maintainable or false . It is the duty of the lawyer appearing on behalf of the accused to perform accordingly.

Gautam Kapoor ( )     11 April 2014

Good learned thougts from  Mr.Nadeem,Mr. Kalaiselvan and Mr. Roy.

:) indeed true and may I add.

OLD TIME TACTICS IS (ARE) THE FATHER/MOTHER (PROGENY) OF  NEW TIME TACTICS.


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