• Permanent resident status of wife in her transfer petition

Hello,My wife filed transfer petition c 24 in the Uttarakhand HC and got interim stay order of sec 9 HMA.Immediately after that, she filed sec 125 crpc at her place, on behalf of minor daughter 1.2 yr old.In her transfer petition,she has not mentioned about place of solemnisation of marriage and last place of residence together.Further she has declared in her affidavit filed before hona'ble HC that she is a permanent resident of that place where she is soughting transfer.
My question is that can a Hindu wife declare herself as a permanent resident of other place other than that of her husband.
As per indian succession act, wife, after marriage acquires the domicile of her husband ,if she has not acquired the same domicile before or unless separated by a competent court

Also ,as seven steps of marriage are performed, wife looses her permanent residency from her parental place and becomes the clan of her husband.

So If I am a permanent resident of my district then how she can claim permanent resident of another district where her parents live, after deserting me ?

Please advice is this a case of perjury or not and can I pray to HC for dismiss her transfer petition for misleading and false information!
Asked 4 years ago in Family Law
Religion: Hindu

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44 Answers

If wife after the marriage is not living with the husband and the relationship is sour then the wife can stay at another place.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

for the purpose pf filing a case u/s 24 of the CPC, she can claim a transfer to the place where she is living presently. The concept of permanent residency does not apply in strict sense.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1) wife cannot claim that she is permanent resident of her parents home

2) after marriage she would be permanent residence of place wherein you both stayed together as husband and wife

3) you can file application for dismissal of her transfer petition

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

You can rely upon judgment of Calcutta HC that wife cannot claim her permanent residence as place of her parents residence as you never stayed with wife at said place after marriage

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

Hello sir , the jurisdiction can be at three places.1) where she resided before marriage or her parental address 2) her matrimonial place 3) the place where spouse last resided ....If she has filed a case at a place other then these places, you can file a appeal against the summoning order

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

1. Wife can seek transfer of the suit to her present place of residence which can be her temporary or permanent place of residence. So probably during argument she may describe this to be her present place of residence.

2. So though her present place may not be her permanent place of residence due to the fact that this is her present place of residence the suit will be transferred by the high court.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1. She has declared her said place as her permanent residence after leaving you. Actually she should have mentioned it as her present residence. this error will not make her petition defective in the eyes of law.

2. This is an error committed by her in mentioning her present address as her permanent address though she can forward her argument that after leaving you, it has become her permanent address.

3. This debatable issue of styling her present address as her permanent address will not cause the application to be rejected in any way.

4. No case of perjury stands in the instant case.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. She can file an affidavit praying for amending her petition and substitute 'permanent' with 'present' in case of her address.

2. You can take up this issue but do not depend on this issue only and find out arguments to counter her said application on merit.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

hello,

the HMA stipulates thus:

Every petition under this Act shall be presented to the District Court within the local

limits of whose ordinary original civil jurisdiction:

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iv) the petitioner is residing at the time of the presentation of the petition.

therefore, if your wife has filed the petition at the place she is currently residing, she has done no mistake.

please elaborate so that i can give a better reply, like the place of marriage etc.

regards

Rahul Mishra
Advocate, Lucknow
13755 Answers
65 Consultations

5.0 on 5.0

Sorry to say but you have been given a complete wrong understanding of both the law and the situation. While the Indian succession Act is yet to be amended, courts have long since held that the wife does not follow the domicile of the husband. Read any judgement of Private International Law.

You say that she has deserted you, her case may be different. So on that ground, you can neither have her Transfer Petition dismissed nor it is perjury. Also remember that you have filed for RCR so i would advise you against taking any such step which will cause remarks to be made on your conduct.

Permanently residing as is what is written in the Petition is not to be taken in such a serious manner nor with such literal translation. These are matrimonial proceedings and the law has been created/ amended in such a way that woman can file where they reside without facing hardship.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

You can in your affidavit in reply take the plea that wife has suppressed material facts

2) that marriage was solemnised at native place after marriage both parties resided together at your native place is her matrimonial home

3) that her parental home is her temporary place of residence

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

hello,

the HMA nowhere says that the petitioner cannot file a petition where he/she is currently residing. therefore, do not get confused. calcutta HC judgment talks of locus of the matrimonial home. now she is residing at her parents' place "at the time of presentation of her petition". so she can file a petition. permanent residence cannot be a factor here.

permanent residence only becomes a factor wherein the wife tells you to come to live at her place and you tell her to come to live at yours. in these kinds of cases, the court decides where is the locus of the matrimonial home. now the judgment you have read is old and not applicable.

the SC has stated that now in the changed circumstances, the husband also can go and reside at the wife's place if the wife is earning more and she has a difficulty in moving to her husband's place.

regards

Rahul Mishra
Advocate, Lucknow
13755 Answers
65 Consultations

5.0 on 5.0

The Supreme Court has held that residence, for the purposes of the application of Indian matrimonial statutes, does not mean a temporary residence but a habitual residence or a residence which is also intended to be permanent (Smt Satya v Teja Singh [1975] 2 SCR 1971).

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

1. Your argument on law point is well understood.

2. Please note that Orders of even Supreme Court on any issue get changed with appropriate arguments. So, it will not be prudent on your part to solely depend on one Court order only though you can try for getting the application rejected for submitting improper address.

3. It is very likely that she will pray for amending the said word 'permanent' and substitute with the word 'present' which most likely shall be allowed by the Court.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. She has been improperly been guided by her lawyer to mention her present address as permanent address or this was a clerical mistake on the part of her lawyer.

2. Please note that permanent address also may not remain as permanent and can be changed.

3. Her mentioning the address as her permanent address does not make any material change in the matter in question for which the Court might not give it that much importance to reject the application as being desired by you.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

hello,

please understand that there is no concept of permanent residence in the Act. the act provides flexibility to the person filing a divorce petition, therefore, a person filing a petition can file it from any of the places where the Act stipulates.

now if your wife goes to live in Mumbai, the place she is currently residing in is Mumbai, so she can file a petition there if she hasn't filed it anywhere else. if she has already filed a petition, at her parents' place, then she would have to go there.

in the first instance the law provides flexibility, not every time, otherwise, there would be scores of petitions in various places where the petitioner has resided.

the concept of permanent residence does not arise here. permanent or domicile is a concept which varies from state to state and it has no meaning wrt the HMA, 1955

REGARDS

Rahul Mishra
Advocate, Lucknow
13755 Answers
65 Consultations

5.0 on 5.0

As I advised earlier as long the pace where she is seeking transfer is found to be her present place of residence the court is likely to ignore her statement to be her permanent place of residence. The court through sometimes transfer to some other city where both of the spouses do not stay.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Yes she can file a petition to get the case transferred at Mumbai also.

By permanent resident it is inferred that due to difference she is living at a different place.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

If your analogy is accepted then no women can ever file a case of transfer of case as her permanent address will always be husband's address.

Kindly read the entire judgement and refer to an advocate for its interpretation.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1) you are absolutely correct that wife cannot take the plea that she is permanent residence of place where she sought transfer

2) her permanent residence would be wherein she resided with husband after marriage

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

1. All the facts stated by as not mentioned by her in her transfer petition is not required to be mentioned compulsorily.

2. She can state that it was a typographical error or can also state that she has decided to live at that address permanently for which she has so mentioned in her petition. .

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

My question is that can a Hindu wife declare herself as a permanent resident of other place other than that of her husband.

She can very well declare that, it is not obligatory that she has to mention her husband's place as her permanent residence, ther is no law forcing her to do it the way you say.

Please advice is this a case of perjury or not and can I pray to HC for dismiss her transfer petition for misleading and false information!

You have wrongly interpreted the law without understanding the meaning of it and the purpose of certain laws being enacted.

They have been enacted to make her entitled for her rights after marriage.

This will not restrict her from choosing her place of residence

She can very well declare any place as her residence if she is permanently residing in that place at least at the time of filing this petition.

There is no act of perjuring the law in this.

The concept is that the petition can be filed in the place of marriage or the place where they both last resided together or the place of her current residence.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

to claim permanent resident,states rules and regulations has to be followed.even wife is living away due to misunderstanding,she can be a resident of place where she is living at present,but if she claims permanent resident of district where she lives,then she is violating indian succession act and concept of Hindu marriage.there is a difference between resident and permanent resident.

There is no question of succession of estates now, the problem before you is a different subject hence dont drag irrelevant laws to a subject which is not related to this subject.

The question of permanent residence in no way is going to affect the cases filed by her and moreover she is applying for transfer of RCR to her place for which there is a provision in law hence do not waste your time on such petty issues, instead you concentrate on some other actual reasons which will enable you to object to her transfer petition.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

As per hona'ble HC of Calcutta it was declared that as long as marriage is in subsistence domicile of wife is that of husband and it follows like a shadow.

This ruling was given by the honorable high court of Calcutta for the reason that when the wife was denied the privileges of domicile of husband's residence, whereas the question of permanent residence will come only when she stakes a claim for the same from her husband's place, moreover this is not a matter of contest when she is seeking transfer for the reasons other than the permanent residence issue.

My law point is that though she can file petition at her place of residence but under oath she can not claim permanent residence at her parental place.Further by claiming permanet residence at her parental place and not telling to hona'ble HC in her transfer petition that she lived with her husband,she is declaring that she never lived with her husband

This is your misconception or misunderstanding of law, she has rights to declare her permanent residence of her choice, you being a husband cannot dominate her to declare only your home as her permanent residence, this act may be infringing her rights.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

If my wife again take Transfer to some other state like mumbai for an eg. Can she claim permanent resident after transfer to that state?will she eligible to claim permanent resident as per law

Here under oath she is claiming as a permanent resident under jurisdiction of that particular court.

Even she is staying at present there but if she claims that she is a permanent resident of that district then she is violating the rules and regulations of that state.Further it clearly shows her Animus deserendi on her part.

Any citizen of the the country can change their permanent residence anywhere in the country except J & K.

Therefore there is no legal infirmity in it even if she migrates to Mumbai and claims permanent residence from that place by producing documentary proofs to that effect.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

I have a objection here because in transfer petition c 24 she is taking plea under oath that she is a permanent resident of that place which means that she is declaring that she never lived with her husband.

This is fraud and concealing of material facts

.Permanent resident does not means that she has suppressed that she lived in her husband's place for certain time.

It is her right to declare any place as her permanent residence, she may not like to live at her husband's place and the permanent residence given in her official records will that be of her parents residence given before marriage hence she continues that

However this is not a matter of contest hence you may concentrate on the valid and genuine grounds to object to her transfer petition.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

If that is the case then take preliminary objection and challenge the maintainability of the case.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

It is well settled law that petitioner who has not come to court with clean hands is not entitled to any relief

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

You have been properly explained the law involved in it, if you still insist that you will proceed as per your understanding of the law then it is your decision.

Ensure that you don't miss the main subject in the course of this permanent resident subject.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

Hello,

You are right in that sense that she should have categorically stated that she lived with you at your place and the lbirth of the daughter at your place. The law looks with suspicion on persons who don't come to the court with clean hands and does not grant then relief.

she should have mentioned the whole sequence of events along with tine and place so that the court can reach a better judgement.

Regards

Rahul Mishra
Advocate, Lucknow
13755 Answers
65 Consultations

5.0 on 5.0

hello,

sir firstly the court wouldn't grant her maintenance merely by filing an application u/s 125. you have stated that she is in SBI and therefore, her earning must be adequate. if she deserted you and withdrew herself from your society then she is guilty of not staying with you and hence she cannot take advantage of her own wrong.

file a revision application against any order of interim maintenance before an ASJ.

regards

Rahul Mishra
Advocate, Lucknow
13755 Answers
65 Consultations

5.0 on 5.0

HC would not quash 125 cr pc

2) you can in your reply deny allegations made in application filed by wife

3) when both husband and wife are working both have to shoulder responsibility for maintenance of child

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

1. You are over stressing on one point only which she will be able to correct very easily by stating that it was a typographical or clerical error.

2. While trying to get her said petition disposed off with your above argument, stay prepared for countering it on merit also.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. Since the child is in her custody she has has claimed maintenance for the child and she she has given the reasons that why she is forced to stay away from her husband.

You may highlight the contradictions in the cross examination.

2. It is her pleadings and expressions or averments while seeking various reliefs under various provisions of law, there is no legal infirmity in it.

3. You can bring this contradictions while contesting her cases accordingly. Since it is the same town/place that wont make much difference to falsify her claim.

4. You can handle this during cross examining her in the trial proceedings.

5. Quash of 125 cr.p.c. may not be entertained, you may have to contest and get it dismisses on merits with the support of documentary evidences in your side.

This is a maintenance claim for your child hence very sensitive, so you may think about how to tackle this.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

a. She has mentioned all those things as mentioned in her 498A complaint to establish that she was forced to leave your house with her daughter. If you point out that she has also mentioned that she has voluntarily left your house and also took her transfer by applying for it, she will submit that she was compelled to do the same to escape from your harassment. You should anticipate her future line of action tom prepare your defense accordingly.

b. Petitions are made with specific prayers and showing grounds to substantiate the prayers. It appears that she has shown grounds to substantiate that she was compelled to leave your house with her daughter.

c. You can point out her different address mentioned in different petitions for which she might submit that those were her addresses at the time of filing the petitions.

d. This is part of the standard statements made in petitions to seek maintenance.

e. No quash petition will be entertained by the High Court in the matter of maintenance claimed u/s125 of Cr.P.C. on the grounds mentioned by you.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

There are no allegations of dowry harassment in complaint

2) complaint under section 498A is maintainable only if there is dowry harassment

3) as far as maintenance is concerned since wife is highly qualified and working she is not entitled to any maintenance unless there is substantial differences in your income

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

What you have narrated here is a matter of trial.

There is no point in discussing the main issues at this preliminary stage.

You can note down all these observations and quiz her in the cross examination properly during trial proceedings.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

Petition for maintenance of child is maintainable

You should take plea that when both are working responsibility for maintenance should be borne by both parents in proportion to their income

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

1. The allegations leveled by her against her MIL are standard allegations.

2. she shall have to substantiate all her aid allegations with evidence.

3. However, if the signature found on the application filed by her u/s125 if Cr.P.C. is proved to be of some other person and not of herself, then you can pray for its dismissal.

4. If she is able to prove that it is her signature, then the matter will be herrd.

5. As already advised in my earlier posts, you can take up the matter of anomalies of addresses mentioned in her different applications/complaints before the Court praying for their dismissals but you should also prepare yourself to counter the cases on merits.

6. Your vital argument should be that her said application/complaint has been filed/lodged as an after thought after receiving the notice of the RCR filed by you.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. It is the duty of both the parents to maintain their son or daughter.

2. The presumptive expenses to be incurred for maintaining your minor daughter shall have to be shared by both of you for which you shall have to argue and file Written Objection.

3. The Court is expected to award maintenance for your daughter directing you to pay the awarded amount for your daughter's maintenance.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

It becomes your duty to challenge the maintainability of her petition seeking maintenance to your daughter under the provisions of section 125 cr.p.c.

You can shoot all your questions to her during cross examining her in the trial proceedings seeking her explanation that why did she used the child as a shield to protect herself from the legal onslaughts due to the cases pending before various courts.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

1) If you are withdrawing RCR what is sense in filing fresh RCR case ?

2) You have to apply to trial court to withdraw RCR case

3) infirm HC about withdrawal

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

If the proceedings of your RCR case has been stayed by high court then you cannot even withdraw the same in the lower court.

If you are withdrawing the present RCR with an intention to file a fresh one then you must obtain leave of the court in advance for this.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

1. While filing the application for withdrawal of your RCR case you shall have to addionally pray for the leave to file the said case afresh after correcting the defects.

2. In the said withdrawal application you shall have to mention the reason for such withdrawal viz., finding some defect in the said RCR Suit.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

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