• Divorce

My brother was marriage in the year 2001 and that out of the wedlock between my brother and his wife, a child was born in the year 2002 and by birth the child was in her custody. Before the birth of said child she went her paternal house when she was carrying 5/6 months. At that time her paternal house was situated at patna. After the birth of the child she once came to her in law house on the occasion of Annaprashan and leaving her husband permanently in the year 2002. After living separately from her husband and in laws for six years she initiated a false 498A/34 case against her husband and other in laws. And trail court was acquitted her husband and other in laws. At that time her permanent resident in kolkata. In the year 2016 my brother was tried to restore his conjugal life but failed. Now she was create disturbance in the daily normal life of my brother by using massage in most vulgar languages and threatened my brother and other in laws. Once she came to my brother's house and demanding his full salary and one flat in her name. Now my brother wants divorce. Also noted that my brother regularly send maintenance after leaving her husband. Now my brother sent maintenance at rate Rs.20000.00 p.m. It noted that my brother gross salary is Rs. 62082.00 p.m. My brother is living with me and my family.
Now my question are that
1. Can his wife lodge any criminal case against me and my family?
2. Can by brother got divorce on the ground of cruelty?
3. If she filed 125 Crpc /DV for higher maintenance?
4. And what amount will fixed as interim maintenance? Both of them.
5. Can she make over the custody of the child in without writing in accordance with the law of the land?
It is noted that the child is in her custody. So she can claim higher maintenance in this ground? Can she claim any share accommodation under PWDV Act?
Asked 6 years ago in Family Law
Religion: Hindu

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19 Answers

1) wife can only make application for maintenance under section 125 cr pc and under DV act

2) your brother can get divorce on grounds of desertion and mental cruelty

3) wife filing false case against husband amounts to mental cruelty and is ground for divorce

4)court would not award wife more than Rs 20000 per month as maintenance

5)you can seek joint custody of your child

6) court would award you visitation rights at least

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

Hi, since you already have been Accquited in 498 A , there are minimal chance that court will entertain any of his violence complaints .. Further , your brother is already sending her a handsome amount monthly , therefore any further enhancement in the amount is not possible...2) Getting divorce is a bit difficult as Indian law unfortunately tends to favour women .. However you brother can ask for permanent custody of his child ... For Further doubts you can contact me in person ..Thank you

Hemant Chaudhary
Advocate, Gurgaon
4630 Answers
67 Consultations

4.9 on 5.0

1. At this stage no criminal complaint can be lodged by her, rather you can lodge a criminal complaint on her for criminal intimidation.

2. Yes he can and also ground of dissertion can be taken.

3. Then you will have to fight, but I do not think that the court will enhance the maintenance.

4. This amount that your brother is paying is enough, no enhancement will be made probably.

5. She can claim share in accommodation and if your brother wants the custody then a case for custody will have to be filed.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

As told earlier no concrete case can be filed. However by moulding facts she can institute a complaint.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

she can lodge false DV case against you

2) but DV case would not be maintainable as there is no shared household

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

Dear Client,

Filling false case against husband amounts to cruelty and ground for divorce.

Husband entitled to seek divorce from a wife who files false cases against him in which he gets acquitted; Bombay HC [Read Judgment]...

Read more at: http://www.livelaw.in/husband-entitled-to-seek-divorce-from-a-wife-who-files-false-cases-against-him-in-which-he-gets-acquitted-bombay-hc-2/

1. Can his wife lodge any criminal case against me and my family? --- She can but can`t succeed.

2. Can by brother got divorce on the ground of cruelty? -- Yes , refer above judgement

3. If she filed 125 Crpc /DV for higher maintenance? --- wife is entitle to 25% of salary as just maintenance, but wife deserting husband without any reason, has no claim.

4. And what amount will fixed as interim maintenance? Both of them. -- 25%

5. Can she make over the custody of the child in without writing in accordance with the law of the land? -- father can seek visitation rights.

It is noted that the child is in her custody. So she can claim higher maintenance in this ground? Can she claim any share accommodation under PWDV Act? -- Only right to residence, no claim.

Yogendra Singh Rajawat
Advocate, Jaipur
22595 Answers
31 Consultations

4.4 on 5.0

1. You cannot predict what she will do, but if she files a false complaint agaisnt you then you may have to challenge the case properly in the trial proceedings.

2. Your brother can very well file a divorce case on the grounds of cruelty and desertion

3. She can file a case seeking maintenance but your brother can defend himself on the basis of documentary evidences and merits on his side.

4. The quantum of maintenance will be fixed on the basis of how she proves her case i.e., his income with substantial evidence.

5. Since the child is in her custody, your brother only has to apply for child custody under the provisions of GWA. She can claim residential rights under PWDVA also.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Can my brother's wife lodge any false criminal case against me and my family? Because my brother is living with me and my family.

If she decides to avenge him by putting pressure on him she may even plan to lodge false criminal complaints against you and other close relatives.

You can challenge the same in the trial court based on merits and documentary evidences in your side.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. yes, she can lodge complaint against her husband and as many relatives as she wants irrespective of whether they stayed with her or not.

2. If your brother proves her acts of cruelty then decree for divorce can be granted.

3. The husband is liable for maintenance @ 1/3 to 1/4th of his income and hence claim of his wife is not the only factor to determine the amount.

4. The amount of maintenance would be around 1/3 to 1/4th of income of husband,

5. elaborate on this issue.

Devajyoti Barman
Advocate, Kolkata
22774 Answers
484 Consultations

5.0 on 5.0

1. That cannot be commented upon without seeing the other facts of the case but given that your brother and the remaining family were earlier acquitted, the scope of such complaint, if any, will be extremely limited i.e. from the date of the order of acquittal till date.

2. Yes on the ground of cruelty and desertion. Your brother can also use his acquittal to strengthen his case further as filing false complaints also amounts to cruelty.

3. She will have to justify her expenditures as your brother is voluntarily making payments.

4. Should be a pittance, if any. It depends on several factors such as her education, her salary if working, the number of dependents on your brother etc.

5. If she was staying in the shared household, she could have claimed a right to reside there. Not now. The custody of child being with her, she can claim more maintenance.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

1. Any body can file any case against any body in any Court of law in India but the applicant shall have to prove his/her allegation submitting evidence in support of his/her said allegation. The opposite side will get ample scope to contest the case filed against him/them.

2. Your brother cab very well file the divorce suit on the ground of cruelty with all the evidence he has collected so far to prove her cruel acts on her. As per Supreme Court judgement, filing of false 498A case is also considered as a cruel act on the husband for the purpose of granting decree of divorce. He should file the divorce suit immediately.

3. If she files any case including case for seeking more amount towards maintenance, then it shall has to to be contested. He should not stop sending her any amount with out Court order and file divorce suit immediately on the ground of cruelty. If wife leaves her matrimonial home without any cogent reason then her husband is not liable to maintain her.

4. Around 1/4th to 4/3rd of the net monthly earning is awarded to the estranged wife if she is eligible to claim maintenance.

5. As commented above, she can claim the sky but the Court will decide on the reasonability and elligibility of her claim before passing Judgement. You shall have to contest the cases if filed by her.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

She can lodge false police complaint against you to take revenge on her husband but her said complaint will not hold much water since she has already lost her 498A case which has proved to be falsely alleged against your brother and his family members.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1) She may lodge complaints or may not against your family.

2) Yes may be get divorce on cruelty ground.

3) She may filed under section 125 CrPC.

4) 25-30% of net salary per month will be charged as maintenance.

5) No she can't ask for land share in the in laws property.

6) she can ask child custody.

7) May be or may not lodge criminal case against you and your brother.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

1.) As you said earlier that already 498A complaint has been disposed off. Now she can only file domestic violence and maintenance petition or alimony with divorce.

2.) Yes your brother needs to file the divorce petition on the grounds of mental cruelty against her in the court of law with the help of any local good advocate.

3.) Yes she can file the maintenance petition, then you will need to prove that she is very much capable to maintain herself and child.

4.) there is no hard and fast rule to calculate the amount of maintenance, it depends on his salary, education, lifestyle, debts, liabilities and responsibilities of both the parties. No she cannot claim direct share in any of the property.

5.) Yes she may tried to have the custody of the child with her. In that case you will need to prove that the welfare of the child will lie in your favour.

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

4.8 on 5.0

1. Yes she can make a complaint under DV act but it wont sustain as there is no shared household also your brother has already acquittal by the court in 498 A.

2. Yes SC has held wife filing false cases is ground of divorce and cruelty since she filed false 498 A so along with desertion on ground of cruelty you can get divorce.

3. You can contest same see in DV the himachal High court has held if no DV than no maintenance under DV further you can contest 125 maintenance since she has deserted your brother from many years and he has been already paing maintanance.

4. SC judgement 25 % of salary is fair and reasonable and can be granted as maintenance so 20 thousand is sufficient amount and fair amount.

5. Your brother can file for custody of child.

Yes she can claim maintenance was child separately and abslutly there is provision for the accomodation right but all this can be contested because prima facie there is no domestic violence.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

yes she can file a false case against you also but something there wont be any substance in her case and same shall fail and you shall be discharged,

further if she files false case when and further your are released from case file a defamation suit on her.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

1.Generally wives file 498 A IPC and domestic voilence Case on husbands. She can also file the same.

2. Yes

3. She can buy you can challenge the same in court.

4.that is court's discretion.

5.No

6. Yes she can claim right in share household and you can file custody petition in court for your brother's custody.

Prashant Nayak
Advocate, Mumbai
31802 Answers
175 Consultations

4.1 on 5.0

Dear Querist

My opinion on your queries are as under:-

1. Can his wife lodge any criminal case against me and my family?

Opinion:- As all of you are already acquitted under section 498A case, hence now based on previous acts she can not file any cases against you or your family members.

2. Can by brother got divorce on the ground of cruelty?

Opinion:- Yes, it is the best ground for divorce even the acquittal order is sufficient ground for divorce from her.

3. If she filed 125 Crpc /DV for higher maintenance?

Opinion:- 1/3 income of your brother may be granted as maintenance, even your brother already pay an amount of Rs. 20,000/- per month, hence she can not get any higher amount from the Court after filing maintenance case U/s 125 of Cr.P.C.

4. And what amount will fixed as interim maintenance? Both of them.

Opinion:- As above.

5. Can she make over the custody of the child in without writing in accordance with the law of the land?

Opinion:- The child custody can be decided by the Court only and she can not hand over the custody to any other person by writing any documents.

It is noted that the child is in her custody. So she can claim higher maintenance on this ground?

Opinion:- Her DV case, if any, will also be dismissed as she could not be proved her allegations in her Criminal Case U/s 498A of IPC.

Can she claim any share accommodation under PWDV Act?

Opinion:- She can but cannot get.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

Yes you have right to initiate criminal proceeding against her because sending a vulgar and abusing messages is an offence punishable under Information and Technology Act 2008. It is settled law that if wife has filed false case against the husband then she is not entitled for maintenance. Yes your brother has the right to get divorce on the ground of cruelty because living separately from husband without any reasonable cause is constitute cruelity. The Supreme Court has held in catrina of cases that living separately from husband without any reasonable cause is a matrimonial cruelty and it is a ground of divorce under section 13 of the Hindu Marriage Act. If C files any complaint under section 125 of the code of criminal procedure, that complaint is not sustainable in law because according to Section 125(4) of the code of criminal procedure if wife has no reasonable cause to live separate then she is not entitled for maintenance. If you think that it is in Welfare of the child to be in custody of father that you can claim his custody under guardians and wards act.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

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