• DV and 498a after 2 years of filing divorce and maintenance

Respected Lawyers,
I married a girl via web based matrimony, (both of us are post graduates and she used to work before marriage). After marriage i found that the girls family are greedy and want me to a puppet in their hand and transfer all my parents property in my name. As i refused my wife left my home after 2 yrs of marriage with my daughter ( 1 yr old then ) in my absence. She refused to come back and asked me to give her money and divorce else she will file multiple cases against family and me. I refused to bulge and instead asked her to come back, which she refused (call recorded). After some days she sent me divorce notice from MP alleging violence and demand for dowry, subsequently she filed for maintenance for daughter only under CRPC 125. (These cases are going on since 1.5 yrs.

Since she could to get any relief in the above cases I sowed no interest in her demands of lacks of rupees for settlement. she now also filed DV case and lodged 498a/406 /507 complaint against me and father ( both cases). She in-between had also posted her ads for marriage ( without getting divorce) for which i have taken print outs, also Although she has said she is housewife I know she is working but don't have proof for that, I am ready to face trials as i have no done anything wrong.Although i have a lawyer I wanted to know the following from all you learned people - 

1 - Can i get custody of my 4 yr daughter , even joint will be fine . Since she wants to remarry i want just want to take care of my daughter and not remarry. 2- Since she had lied in court and in her cross, for which i have proof. can i file any case against her. In my hometown preferably.
3- is 498a maintainable now and can she have filed it in her hometown when i have only once visited there that to for 1 day immediately after marriage.
4- Can the DV/ 498a be quashed/ transferred citing delay and her own mails stating that my parents took care of her and also in initial divorce petition my fathers name was no where mentioned which she added in DV and 498a.
5- Is she eligible for maintenance when she herself is asking for divorce/ is educated/working and i am ready to bring her back with daughter.
6- Can my mother file DV against her that she used to ill treat my mother. Can my father file case against her for dragging his name when she and her father in her own mails/ call recordings is saying that my parents always treated her like daughter.
7- I have call recordings between my father and his father where her father clearly mentions that he too cannot understand that why her daughter needs divorce but she will not return, when and where can i use these things.
8- Can i file anywise in my hometown so hat they too will have to travel.
 and lastly if i do not want to divorce her and she is unable to prove any violence/dowry demand - can she get divorce ?

thanks for your patience to reed this lengthy issue , would appreciate if you could guide me on above.
Asked 7 years ago in Family Law
Religion: Muslim

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7 Answers

1. if you can prove the case of welfare of the child is better protected with you then you can full custody. in India the courts do not recognise joint custody.

2.File custody suit.

3. Yes case is maintainable.Howeevr you can challenge it in quashing on the territorial jurisdiction ground.

4. In jurisdiction ground case can be transferred but not quashed.

5. Mere education and asking for divorce is no ground to avoid maintenance.

6.Yes, your mother can.

7.Yes but audio tape is very difficult to prove in court.

8.Yes and contest the divorce suit.

Devajyoti Barman
Advocate, Kolkata
23192 Answers
510 Consultations

1) you can seek joint custody of your daughter but court would award you visitation rights

2) you can file case of perjury against your wife in court wherein she has made false statements on oath

3) 498A case is maintainable and can be fined in her home town if part of cause of action has arisen in her home town

4) quashing is ti be done only in exceptional circumstances

5) wife can seek maintenance if there is substantial differences in your income

6) your parents can file defamation case against your wife under section 500 of IPC

7) you can rely upon call recordings in your possession

8) if wife is unable to prove allegations made in divorce petition her divorce petition would be dismissed

Ajay Sethi
Advocate, Mumbai
96760 Answers
7804 Consultations

She got wrong advice for succession her wish and she play without knowing the final outcome. You can file case of perjury against your wife. Face the trail, if she files false case against you and your family is better than quashing the FIR.

Maintenance to a spouse

A Husband is legally obligated to maintain his spouse. Maintenance includes provision for food, residence, clothing, education and medical attendance and treatment. Many factors such as the income of wife, income of husband, the period for which marriage subsisted and liabilities of husband are to be kept in mind by the court while deciding the legitimacy of the claim for alimony and also the amount to be fixed. If your wife is earning then she is not entitled to claim financial support from you. Wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband. A well-qualified wife is not entitled to remain as an idle and claim maintenance from her husband

Custody of child

The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Guardian and wards card are empowered to determine the issue of child custody. Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. The basic opinion of the child and the mother is highly ignored while determining the custody of the child. Family law courts generally base decisions on the best interests of the child or children (welfare of children), not always on the best arguments of each parent.

1. Permanent Custody

2. Interim Custody

3. Visitation Right

Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favour of one spouse as against the other is WELAFRE OF THE CHILD.

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no wayprejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.

In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights.

If she fails to prove her case she could not get divorce. You can use the call recordings as secondary evidence supporting to your counters against her petitions.

Ajay N S
Advocate, Ernakulam
4087 Answers
112 Consultations

1. For child custody you can gather the evidences of he false propaganda and file a case before the court. Put forth your arguments convincingly before court.

2. If you have any grievance in the case now running in this court, you can file a counter case only within this jurisdiction and not outside.

3. Whether it is maintainable or not shall be decided by court after conclusion of the trial proceedings.

4. You can prepare the pleadings in such a way that it is convincing the court while seeking to quash the said cases, the court after hearing both sides and on the basis of merits, it shall dispose the cases accordingly.

5. She can file the maintenance case, she is not barred from filing the case, but it is your burden to defend yourself by producing the documentary evidences of her employment and salary income

6. Your father may file a DV case against her but your father has no reason to file any case against her.

7. Call recordings are not admissible in law as evidence to prove your case, you cannot depend only on such evidences, you may look for some other evidence to prove your case.

8. She can file divorce case she has rights to live her life even by dissolving her marriage.

If you do not want to give her divorce you can challenge her case and fight it till the end properly.

T Kalaiselvan
Advocate, Vellore
86958 Answers
2334 Consultations

1) quashing is to be done only in exceptional circumstances

2) you can based on legal advice file for quashing in HC

3) there are no adverse consequences if quashing is rejected

4) file for discharge of your father in DV case as there is no shared household . Your father was staying separate and only used to visit your residence occasionally

5) application for perjury under section 340 cr pc has to be filed in same court

6) you can file application in HC for transfer of cases but chances of success are bleak

7) divorce case would not be stayed till disposal of DV /498 A case

8) file application under section 91 cr pc to direct wife to produce her income tax returns, her bank statement for last 3 years

Ajay Sethi
Advocate, Mumbai
96760 Answers
7804 Consultations

1. You can file a quash petition once the charge sheet is submitted before court and you receive a notice from court for temperance.

2. You may try to include other grounds also

3. This you can challenge in the trial proceedings of DV case.

4. Perjury case will depend on the false statements made by her on oath before court and the jurisdiction will be applicable accordingly.

5. Transfer of criminal cases are generally not entertained.

6. Divorce case cannot be stayed for such reasons because it is entirely a differnt subject and a different case without any relevance to any other pending case.

7. You can file a petition before court to direct her to produce the relevant documents regarding her employment particulars incl ding salary particulars.

8. Your mother can file a DV case against her at any time.

T Kalaiselvan
Advocate, Vellore
86958 Answers
2334 Consultations

You may go for FIR quashing before filing of the charge sheet and may file charge sheet quashing after the charge sheet is filed. It is advised that you challenge the FIR itself on the ground of jurisdiction before the HC directly.

You may ask your mother to file the case, but the limitation and time will play major role now.

Regards

Anilesh Tewari
Advocate, New Delhi
18088 Answers
377 Consultations

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