Mp Kori
Asked November 14, 2016

Maintenance and False Domestic Violence Case

  • 1 Answer
  • 2195 Views

1) My wife and me had a dispute and she has filed false domestic violence(DVA) case against me and I have filed objections to DVA. 2) Also I have filed restitution of conjugal rights(RCR) and G&WC as I have a daughter around 3.8 yr. 3) I have received visitation rights now as my daughter is minor. 4) Since 1.3 years I am jobless, where as my wife is an Asst Professor, overqualified (M.Tech and pursuing P.H.D) and working in reputed engg college since 7+years, 5) She has now pushed for interim saying she is asked to quit the job and to take care of her P.HD and my daughter expense? Inquiry is going on and I need to submit the proofs for the same. 6) Can I avoid the interim by pushing the RCR in my favor to rejoin also I have already got the visitation rights to my kid. I want to eradicate my wife's ego, adamant and arrogant attitude in a legal way, Also how can I avoid the maintenance and nullify the DVA? Your honest response in this regard is much appreciated, thanks in advance.

Answer 1

Maintenance:

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 hence held that the wife being well qualified can earn handsome amount 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. Going on the same lines, you can show that 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.

False DV case:

You can apply for quashing of FIR:

The Supreme Court of India has laid down the conditions[2] under which you can quash the First Information Report (FIR) filed under sec 498A. These conditions are:

 a. Where the allegations made in the FIR even if accepted do not constitute an offence against the accused;

b. where 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 evidence collected in support of FIR does not direct that an offence has been committed by the accused;

d. Where, the allegation in FIR point out towards a non-cognizable offence;

e. Where 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 prohibition under the Act (under which a criminal proceeding is instituted) of institution and continuance of the proceedings; or

g. Where proceedings have been initiated with a mala fide intention and for taking revenge against the accused.

You can 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 for more than 1 year. In an action for malicious prosecution the plaintiff must prove: 1) That he was prosecuted by the defendant. 2) That the proceeding complained was terminated in favor of the present plaintiff 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 an intention, which was wrongful in fact. 5) That he suffered damage to his reputation or to the safety of person, or to security of his 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: 1) The damage to your reputation; 2) Physical damage to you, i.e., danger of losing your life, limb or liberty  3) 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] Sundar Babu v State of Tamil Nadu (Criminal Appeal No. 773 of 2003)

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