• IA Application for Residential Accommodation & Injunction for Alienation of House

Hello Experts,

At the outset, I got married in 2014. Thereafter, myself my wife and my parents were in the same house which is co-owned by me & my father. Due my wife's fancies, whims & also my MIL's crazy ideas having no given option I'd move to different rented house to save my marriage which was just less than a year.

Once I moved to an rented house, level of torture increased on me both physically & mentally, we were hardly there about 6 months. Since I lost all hopes, I'd moved out of rented house and started staying in a PG for an year and a half. During this time I'd to kept paying the rent for no reason and my wife also moved to her parents house in the same city.

After paying rent for 1.5 years staying away, I'd vacated the house and started staying in a different rented house alone. Only DV case is filed against me on Jan 2017, now in DV my wife has applied for IA towards for Residential Accommodation at my parents residence & Injunction for Alienation of House (also provided a copy of Purchase deed which has my name too).

1. What are the possibilities of the orders that can be passed against me? We have already submitted our objection to court, Pending for IA Hearing.
2. Should I convey to court that she can stay at my new rented house? But that will help her to file fake 498a case against me which was threatening me from a long time even when we were together. 
3. If court deny's IA for Injunction on Alienating the House can she go to Civil Court?
4. During mediation she was insisting me to take her back as all her friends and relatives are speaking bad about her. However I didn't find any changes in her, she was rude and aggressive just like earlier.
5. What should be my further plan of actions?

Note: Till date no Maintenance has been granted to her.

TIA.
Asked 2 years ago in Family Law
Religion: Hindu

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13 Answers

Court would grant an injunction restraining you from selling your share in property

2) you can offer her alternative accommodation

3) take the plea that on account of her aggressive behaviour it is not possible for you to stay with wife in same house

Ajay Sethi
Advocate, Mumbai
78414 Answers
4703 Consultations

5.0 on 5.0

see judgement:-

1. Bombay High Court

Ajay Kumar Madanlal Bajla vs Mrs.Neha Vishal Bajla & Ors on 17 February, 2011

2. IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.10696 OF 2017

Roma Rajesh Tiwari

Versus

Rajesh Dinanath Tiwari

CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATE : 12TH OCTOBER 2017.

Mayank Srivastava
Advocate, Allahabad
61 Answers
18 Consultations

5.0 on 5.0

1. The provision of law is there to enable the Magistrate to pass such order. However passing such order is depending on judicial discretion of the court and there is no hard and fast rule to get such order allowed in all circumstances.

2.Yes you can but if there is prima facie evidence of torture then such offer will not work to avoid passing sch residence order.

3.No

4. Stick to your stand which you have taken in the case.

5. Contest the case on merit and try to get minimum order of maintenance against her.

Devajyoti Barman
Advocate, Kolkata
21347 Answers
302 Consultations

5.0 on 5.0

1. Since under Dv act provision of accommodation is there so if wife prima faciely proves that since there is Dv and dv act applies than court on its discretion pass order of accommodation in matrimonial house or can order you to arrange alternative accommodation for her.

2. See 498a option is always there with her she can any time file it on false allegations it your jobs to keep defence ready and see to things that your aways from her. Also alternate accommodation can be offered before court on condition when court is of view to allows the IA in her favour .

3. No she has no right on property though she can go high court agaisnt IA order .

4. These facts should he presented before court .

5. FOR IA contest same on your defences that there is no Dv on your part infact wife has mentally and physically caused cruelty.

Present facts to effect that she from long time has not lived in matrimonial home and has deserted you. Because of her you resided in a rented flat not at your parental home.

For Dv case if nothing is on record from wife side try getting it quashed.

Shubham Jhajharia
Advocate, Ahmedabad
25462 Answers
110 Consultations

5.0 on 5.0

1. You should have registered a gifted deed transferring your share of the house to your father or mother to ensure that she does not get the legal,authority to enter there against the wish of your father since as per law wife has the right to stay where her husband stays or in her husband's house.However, on what ground she can seek order restraining you in dealing with your share of the house? this ground is important. If she can establish that you are changing your residence or taking up PG accommodation to throw her out of the accommodation which you are legally bound to provide her then the Court might ensure that she is not tactfully left on the street. Your Advocate shall have to be prepared to face the above arguments to be forwarded by her Advocate and counter it fittingly.

2. You need not convey that she can stay with you in your rented accommodation. Actually it is the right of your wife to stay at he place where you stay. To avoid 498A complaint, you can not retrain her staying with her husband. if he threatens you for filing false 498A complaint the you shall have to deal with it accordingly but not by refusing her stay with you.

3. You can appeal against the said restrain order, if any, before the Appellate Court.

4. If possible arrange for a declaration by her stating that she will not lodge any further false complaints/ cases against you and will behave properly and then ask her to withdraw the case filed by her.

5. Thereafter register the gift deed transferring your share of the house in favour of your father or mother. This act of your will ensure that she will not get the right to enter in to that house for which your parents will stay safe.

6. Thereafter act as required depending on the changed situation and keep collecting evidence of her cruel acts on you for filing a divorce suit against her on the ground of cruelty.

Krishna Kishore Ganguly
Advocate, Kolkata
24563 Answers
696 Consultations

5.0 on 5.0

Chances are always 50 50 till the time it reaches at final stage. You just make your averments strong in the reply.

You better file a divorce case against her firstly before she files any such grave complain against you.

Yes, she can go to the court if not satisfied, but same applies on you also you can also go to the court if it comes against you.

As you said in your quary, it seems that it is better for you and your family to leave her and move away in your life’s.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

1. She has residential rights however she cannot claim residence only in that place where she wanted to stay.

You can very well inform court that you are ready to provide her residence at any place even a rented accommodation, the court may dismiss her petition if she is not agreeing for this proposal and unnecessarily insists on them place where your parents stay.

2. You can very well inform court that you are ready to provide her accommodation i a rented premises. You should not be worried about her fresh 498a case, because she cannot b stopped from what she intends to do and moreover the same may not be maintainable as you both have been living separately away from each other and she never raised this issue earlier in any case so far.

3. It will not be maintainable becasue she has exhausted the remedy and it will become res-judicata.

4. & 5, you can take decision based on the prevailing circumstances.

T Kalaiselvan
Advocate, Vellore
68431 Answers
918 Consultations

5.0 on 5.0

Only filing of the case under the Domestic Violence Act does not enforce that you have committed offence. Your wife is bound to produce sufficient evidence to prove that offence which is punishable under the domestic violence act has been committed by you. As far as your case is concerned you have tried to keep your wife happy therefore you left house and shifted in the rented premises only for keeping your wife happy. Now the court will ask a genuine question from wife that what is the reason to live separate from husband even You shifted in a rented house. In Pramila Kumari case the supreme court has held that mere statement is not sufficient to to proof guilt of the husband and court will not grant relief unless and until she successfully proved before the court that offence punishable under Domestic Violence Act has been committed by the husband.

Shivendra Pratap Singh
Advocate, Lucknow
5125 Answers
78 Consultations

4.9 on 5.0

You can visit a counsellor to resolve your differences

2) enter into MOU

3) if reconciliation fails file for divorce

Ajay Sethi
Advocate, Mumbai
78414 Answers
4703 Consultations

5.0 on 5.0

Yes that is the best thing to do visit a counsellor have some counselling sessions. You both can also make an Agreement/MOU mentioning all these condition on failure seek divorce.

See she has right to file case as well as you also so you both can draw a MOU so in future you are secured from false cases, the condition can be mentioned that you have not committed any act of domestic violence on her and there was no dowry demand as to what so ever. Keep caution for some time.

If things donot go well seek divorce.

Shubham Jhajharia
Advocate, Ahmedabad
25462 Answers
110 Consultations

5.0 on 5.0

The proposed conditions are not abnormal are unlawful.

They are normal expectations of a husband from a dutiful wife.

There is nothing wrong in placing these conditions before the counselor during the mediation or counseling session.

If she do not agree to this minimum expectation also then her intention may be different, so you may decide accordingly about continuing the married life any further.

Let she decide to lodge false cases against you all, the same can be challenged as per law.

T Kalaiselvan
Advocate, Vellore
68431 Answers
918 Consultations

5.0 on 5.0

1. This is a very positive step taken by you in deciding to patch up the differences and take professional counselling by both of you. She should accept this proposal.

2. She has no right restrict your spending on your ailing parents so long you take care of her reasonably.

3. She shall have to agree with the proposal to adjust herself with your financial status. You can fix a spy camera to record all her such extravagant claims from you which might be required by you later on.

4. I wish both of you a very happy and matured married life keeping in mind that divorce is the 2nd most stressful event in ones life.

Krishna Kishore Ganguly
Advocate, Kolkata
24563 Answers
696 Consultations

5.0 on 5.0

Dear Sir

You can offer her PG accommodation and save your skin. Ask some of your friend or relative to file a money suit on anti DATED promissory note. Let it be decreed and transfer the property to him under court decree thus you can save your property.

Kishan Dutt Kalaskar
Advocate, Bangalore
5563 Answers
212 Consultations

4.8 on 5.0

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