• Section 9 case RCR / DV / Anticipatory bail under Hindu Marriage Act

Greetings. My Questions are -
1. Sec. 9 case for RCR is to be filed with civil/ criminal lawyer ?
2. If wife files DV and more cases against family, is Anticipatory bail required for each family member in each case or taking bail once under 1 case is enough ?
3. I'm told that Bangalore court are on holiday till 29 May 2017. Is it correct ? Can I still file Sec 9 RCR case today ?
4. If wife files case in MP and I work in Bangalore, tell me how to avoid going there ?

Please advise. Thank you very much.
Asked 7 years ago in Family Law
Religion: Hindu

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11 Answers

Hello,

Section 9 is to be filed in the Family court i.e., civil lawyer will do the work.

Anticipatory Bail is required fro all the persons who will be the probable accused.

With regards to holiday you will have to check that with the local layer, however if there is a holiday then you can only file the case after the court sits.

You can not avoid going to MP if your wife files a case there in MP, you will have to hire a local lawyer in MP itself.

I hope this resolves your query.

Regards

Anilesh Tewari
Advocate, New Delhi
18088 Answers
377 Consultations

Hello,

It will be great if you can consult with me on phone as you have a long list of queries. However, following is my advise on the same:

1. There is no provision of anticipatory bail in UP, we can only file a petition for arrest stay after the FIR has been filed.

2. A lawyer will not charge the fee in the way that you have explained.

3. You will have to proceed with the case wherever your wife files the case, suppose the case has been filed in UP then you will have to approach the high court in UP only. However, your wife cannot file the case as per her wish, there are some limitations to it.

4. She can file a case in Kanour and again i will say i will have to see the notice to give you more appropriate reply.

5. Yes you can file an application for custody of your child and that application will have to be filed in Kanpur that is the place where the ward is residing.

Regards

Anilesh Tewari
Advocate, New Delhi
18088 Answers
377 Consultations

1. RCR can be filed either by civil or criminal lawyer.

2. RCR is no blanket protection from 498A case and if the same is fied the merit of the bail petition would be considered independently.

3. If your wife files case in her parental place then you have to take bail from that place.

4. For getting children you can file custody suit wherein you would at least get visitation rights.

5. if you do not want to loose your wife then convince her so she lead a happy martial life with you.

Devajyoti Barman
Advocate, Kolkata
23192 Answers
510 Consultations

1) petition under section 9 of HMA is to be filed through civil lawyer

2) no anticipatory bail is required in DV cases

3) there is no arrest in DV cases

4) family courts are open during summer holidays . You can file petition under section 9 before family court

5) you can engage lawyer in MP to represent you in court . Your personal appearance is not necessary on every date

Ajay Sethi
Advocate, Mumbai
96763 Answers
7804 Consultations

You don't need anticipatory bail in DV / maintenance cases filed by wife

2) there is no anticipatory bail in UP . You have to file petition in HC in UP and seek stay against your arrest

3) only if FIR is filed against you in 498A case for dowry harassment should you approach HC and seek stay against your arrest

4) wife can file case in Kanpur as she is residing in Kanpur

5) you cannot be forced to stay separate from aged mother . It amounts to mental cruelty and is ground for divorce

6) you can seek joint custody of children

7) court would award you visitation rights

Ajay Sethi
Advocate, Mumbai
96763 Answers
7804 Consultations

1. Sec. 9 case for RCR is to be filed with civil/ criminal lawyer ?

Any lawyer with the subject knowledge can file this case.

2. If wife files DV and more cases against family, is Anticipatory bail required for each family member in each case or taking bail once under 1 case is enough ?

Anticipatory bail is not required for DV case. For other criminal cases all the accused are required to be enlarged on bail.

3. I'm told that Bangalore court are on holiday till 29 May 2017. Is it correct ? Can I still file Sec 9 RCR case today ?

You can file RCR case in the family court which do not observe such long vacations.

4. If wife files case in MP and I work in Bangalore, tell me how to avoid going there ?

Dont receive the summons or attend the calls of police, let them keep searching you by sending summons after summons.

You can shift your residence to some other place to avoid receipt of summons.

T Kalaiselvan
Advocate, Vellore
86958 Answers
2334 Consultations

If wife files multiple cases in court (say 3 cases) - civil & criminal, say for DV, maintenance, etc. against 3 family members, then is anticipatory bail required for all 3 family members in all the 3 cases separately, or is taking anticipatory bail once (in 1 case) is enough ?

Because if for 1 member, if 25k is charged, then taking bail in 1 case is 75K. And if it is required for all 3 cases, then it'll be 75 * 3 = 2.25 lakhs.

For civil case and DV case anticipatory bail is not required.

For criminal case anticipatory bail is to be procured.

Also if I live in Chennai and wife files case in UP, can I file for anticipatory bail in Chennai only or I will have to apply for bail in UP court with a lawyer in UP ?

For a case filed in UP, you canot challenge the same in Chennai neither you can take AB in Chennai.

You have to face the trial in UP only. Please be aware that in UP there is no provision for AB.

Also can I file for anticipatory bail in Advance, on basis of legal letter (stating verbal abuse & dowry) from wife's advocate Threatening to file police case for DV & Maintenance case if money not paid immediately in 10 days, in anticipation that she may file it soon in UP ? (wife left for parent's place 4 years earlier).

No you cannot obtain AB for a case that is yet to be filed.

Then - wife's parents were living in Kanpur, UP, before marriage and also now; the marriage took place in Lucknow, UP, and both husband & wife were working in Chennai before marriage & also after marriage. wife left husband with 2 small kids since last 4 yrs to live with her parents in Kanpur and probably doing job also. now they have sent lawyer's notice from Kanpur for maintenance & threat for DV if money not paid. Can she file case in Kanpur only, or it has to be in Lucknow ?

This cannot be predicted, she may file wherever it is convenient to her.

Then - my mother is old & a widow, sister is a divorcee & wife is demanding to live separately with 2 small kids. What should I do as I do not want to separate. What does the law say in such matters ?

You can refuse to set up a separate house as per her demand and the law cannot force you to live with her separately away from your parents house.

Lastly - is there any way of getting children (1 or both children - aged 5 & 3 years currently) back from wife under any law section (1) NOW or (2) some time later ? both husband & wife are educated and working with almost similar salary of 40 K per month.

You can file a child custody case to take custody of your children.

T Kalaiselvan
Advocate, Vellore
86958 Answers
2334 Consultations

1. You can go for any lawyer. In lower courts the lawyers do not ordinarily specialize in only one branch. Matrimonial matters are a mixture of civil and criminal law.

2. AB is required only if a case under 498A IPC is filed. For DV cases no AB is required.

3. Only a Bangalore lawyer can tell how long the courts there are on vacation. You are free to file the case at any time.

4. You may file a transfer petition to get the case transferred to your place if she files in MP.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

1. AB is required only for criminal case.

2. For every separate criminal case AB is required to be obtained separately.

3. Application for AB can be filed only in that court within the jurisdiction of which FIR is lodged. So if she files the case in MP then AB has to applied in the concerned court in MP.

4. Under DV Act wife can file the case wherever she is residing.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

1. It should be handled by a lawyer practicing before Civil court.

2 There is no necessity for taking AB for DV case. In case of 498A FIR, AB shall have to be availed for all the accused. Bail is taken case wise.

3. Contact your lawyer and negotiate with him for filing your case. File it when the Court reopens.

4. If the marriage has taken place at or both of you last stayed together at or she is presently staying at MP, then you won't be able to transfer the said case to your place.

Krishna Kishore Ganguly
Advocate, Kolkata
27452 Answers
726 Consultations

1. In Civil case, no AB is required.

2. Similarly in DV case also you do not require to avail AB.

3. In case of FIR lodged against you and your family members like FIR u/s498A of IPC, you are required to avail Anticipatoty Bail (AB) for all the accused.

4. Always file separate applications for availing AB for individual accused since in the joint petition for all the three if AB for one is refused and the AB petition is rejected,then all three accused will be denied AB.

5. For filing AB for three individuals of a family, the lawyers generally charge a consolidated fee.

Krishna Kishore Ganguly
Advocate, Kolkata
27452 Answers
726 Consultations

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