Ramit Tandon
Asked January 30, 2017

Divorce

  • 3 Answers
  • 1234 Views

Hi, Please provide your guidance and suggestion. I got married in 2000 and my wife left us in 2007 and since then she is living with her parents. That time my son was only 6 years old and without thinking about him she left. Rather she never tried to again contact us or her son to see how he is living, whether he missing her or not. Just because of her quarreling and suspecting nature, we asked them to gather some relatives and we will also do the same and then we will allow her to come back. As per her, I was not supposed to talk to the girls of my relatives, even my cousins, my neighborhoods and even her own sister as well. Because we wanted to keep our elders all informed, we asked them to discuss with them. She used to threaten us, she used to cook separate. Another reason was her unhygienic behavior and cleanliness. Whenever I asked to be clean, her response was to go with someone who is clean. This is the reason that caused the cohabitation to an end. So finally after waiting for so many years, I filed a divorce case in May 2016. Then her father demanded us for Rs 15 Lacs, which was not possible for me to fulfill. I am the only one to look after for my son and my mother. The conversation was going on with the Councillor in the court, they also filed a case of Protection against Domestic Violence against me. What should be done in this case.

Answers 3

Brother u have a lawyer if he is not able to resolve ur query kindly hire my services

Agree Comment 0 Agrees almost 4 years ago

Is your wife very well qualified? In one judgment[1], the wife who had no independent source of income at the moment, demanded for maintenance from her husband, even though she was a well-qualified engineer. The court said that being a well-qualified engineer, there was no need for the wife to sit idle at home waiting for the maintenance from the husband. It was held that the wife being well qualified can earn well by working and there is no need for her to be financially dependent upon her husband, and hence, she is not entitled for any maintenance. Similarly, if your wife is a qualified woman, capable of supporting herself and hence, maintenance can be denied. For alimony, inability of wife to maintain herself is an essential pre-requisite.

Under what grounds have you filed for divorce? If desertion is the ground, then there are several cases where the court has denied alimony to the deserting party. In one case[2], Supreme Court has said that a woman who deserted her husband and the matrimonial home and refused to return despite repeated requests was not entitled to maintenance.

 

False DV case:

You can apply for quashing of FIR.

The Supreme Court of India has laid down the conditions[3] under which you can quash the First Information Report (FIR) filed under sec 498A. These conditions are:

a. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (This means that the allegations made in the FIR even if accepted do not constitute an offence against the accused)

b. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Sec.156(1) of the Code except under an order of a Magistrate within the purview of Sec.155(2) of the Code. (This means that the materials in support of the FIR do not point out towards a cognizable offence which can justify an investigation by the police)

c. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (This means that the evidence collected in support of FIR does not direct that an offence has been committed by the accused)

d. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155 (2) of the Code. (This means that allegation in FIR point out towards a non-cognizable offence)

e. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (This means that the grounds mentioned in the FIR are absurd and do not point out towards the fact that accused has committed any offence)

f. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

g. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.[1] (This means that the proceedings have been initiated with a mala fide intention and for taking revenge against the accused.)

 

You can also file a case of malicious prosecution against your wife after it has been disproved that she filed a frivolous case against you of Domestic violence and deserted you from parental and marital warmth.

In an action for malicious prosecution you must prove:

1) That you were prosecuted by the defendant.

2) That the proceeding complained was terminated in your favour

3) That the prosecution was instituted against without any just or reasonable cause.

4) That the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with a wrongful intention

5) That you suffered damage to your reputation or to your safety, or to security of your property.

You have to prove that you suffered damages as a result of the prosecution and complaint. Even if the proceedings terminate in favour of your wife, you may show you suffered damage as a result of the prosecution. The damages may not necessarily be pecuniary. It can be damage to your reputation, Physical damage to you, i.e., danger of losing your life, limb or liberty or Damage to your property, being forced to expend money in unnecessary charges, to acquit yourself of the crime of which you have been accused.

 

[1] Sh. Neeraj Aggarwal v. Mrs. Veeka Aggarwal, M No. 28/07, Delhi District Court.

[2] Poonam v. Mahender Kumar (SLP (Crl) No. 8854    Of   2009). Also see Smt.Rohtash Singh Vs. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286

[3] Sundar Babu v State of Tamil Nadu (Criminal Appeal No. 773 of 2003)

Agree Comment 0 Agrees almost 4 years ago

sir

you have already filed a petition for Divorce. i would suggest that, you with consultation with your advocate try to put up your case properly and show the court that your wife had treated cruelly and harassed you and your family members.

since, she has filed Domestic Violence case you defend your case strongly and try to dismiss her petition.

filing false Domestic Violence case against husband and other family members also amounts to cruelty and this point can help you in your Divorce petition to prove Cruelty.

 

 

if she is qualified and capable of earning and if you bring the same on record oof court even court may reject her maintenance claim.

Agree Comment 0 Agrees almost 4 years ago

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