• Request for legal suggestion

Respected sir/Madam,

 

With profound respect I beg your kind attention to state that I am from westbengal. I am 37 yrs of male. I have married on 22.04.2015. My son born on 1.1.2016. Due to some serious problem my wife bound stay her matrimonial home. On 7.4.2015 my wife came to my home and returned on 8.4.15. After that she never returned. I never went to her home. On 22.09.2017 my mother and one relative went to their home. She told that she will come back but she did not. So on 30.1.2018 I bound to do RCR. But unfortunately my lawyer has filed it under sec 9 HMA act whereas my marriage was under special marriage act. So we quit it 13.12.2018 uncontestly and make fresh RCR on 18.012.2018 under special marriage act.

In the mean time I have applied CWC (child welfare committee) to visit my son. They have issued two summon to my wife and she didn’t come. The last CWC summon was 14.02.2019. In RCR ( special marriage act ) on 25.02.2019 her lawyer has appeared at the court.

Now she has given me crpc 125 on 20.02.2019 and Domestic violence ( sec 26 ) on 27.02.2019 against me and my father mother. I am single child. My wife is MCOM 1st class. She is Govt employee. She got 3 govt jobs. She is now bank employee ( govt undertaking) . I am jobless. I do private tuition. My wife is also single child. My father and mothers are ill. My father is 67 and mother is 65. I didn’t get any summon and I found it on ecourts.gov.in. 

Now my question are below :

1) Whether she can file Dv after 2years 11 months after separation ( we are not divorced )? In this case crpc 468 will be applicable?

2) Can it may quashed under section crpc 482?


Is there any judgements of calcutta high court regarding crpc 468 in domestic violence quashed considering I am not divorcee. Its totally a revenge to us.
 

I have talked to some advocate in Calcutta high court but they are telling that Calcutta High court will not consider it. On this ground whether I can’t file it supreme court ? Will supreme court will allow it ? Is it possible ?
Asked 7 years ago in Family Law
Religion: Hindu

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12 Answers

1) wife can file DV after 2 years and 11 months as it is a continuing offence 

 

2) quashing is to be done only in exceptional circumstances 

 

3) it is in your interest to contest DV case on merits before trial court 

 

4) dont waste time and money on legal fees in filing for quashing of DV case 

Ajay Sethi
Advocate, Mumbai
99893 Answers
8153 Consultations

1. See you can file for quashing of DV before the high court on ground it is false and filed with delay after your RCR to harass you.

2. File quashing before high court under 226 article jurisdiction.

 

First file it in high court if rejects then go to supreme Court.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Since she is earning and qualified the maintenance application filed by her her can be contested.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

if wife is working and you are doing private tut ions she would not get any maintenance unless there is substantial differences in your income 

Ajay Sethi
Advocate, Mumbai
99893 Answers
8153 Consultations

You can file your objections and oppose the same as time barred. Yes you can go for quashing too. You can also oppose maintenance application. If she is working you can demand maintenance from her. You have to first see what Calcutta HC says then you can .proceed to SC if aggreived by it.

Prashant Nayak
Advocate, Mumbai
34602 Answers
249 Consultations

Dear Sir,

As per your question : if you will not give divorce then she may file 498a case with you and your family member and also file Domestic violence Act , D.P 3 & 4 act ,r/w 34 ipc , it is better that her conduct and character is not good , you insist her to take Khula and you make MOU binding her not to file any criminal case and domestic violence case and maintenance case against you and your family and you proceed with the khula Mou is important you can show if at all she file the criminal cases against you in future . in MOU you take the witnesses of your father in Law with thumb impression

You can file petition u/s482 for quashing the case

You can avoid maintenance as you follow these:

  1. What is the maximum maintenance amount for a resident Indian? 
    A. Maximum is around Rs.3000 per month. Exceptions are very rare.
  2. What is the maximum maintenance amount for a non-resident Indian (NRI)? 
    A. Maximum is about Rs.10000 per month. Exceptions are very rare.
  3. Can I appeal the order of maintenance? 
    A. Yes. You can appeal (get it set-aside) within 3 months of the order.
  4. Can I bring some facts to the judge and get my maintenance reduced? 
    A. Yes. 
    1) If the wife is working, then the amount can be quite less.
    2) If the wife owns a property, the amount can further be reduced (Section 25(1) of HMA). 
    3) Your other liabilities: house rent, medical bills for the amount spent on the treatment of your parents, liabilities towards sister(s), loan payments, provident fund, tax, etc. 
    4) Adultery or remarriage (Section 25(3) of HMA and Section 125(3) of CrPC) will lead to cancellation of maintenance. 
    5) Without any sufficient reason, the wife refuses to live with her husband (Section 125(4) of CrPC) . Use your wife's failure to comply with RCR.
    6) Both are living seperately by mutual consent (Section 125(4) of CrPC).


 

Netravathi Kalaskar
Advocate, Bengaluru
4951 Answers
27 Consultations

Dear Client,

She can file FIR any time but such delayed FIR for incident of 2.5 years back, less possibility of success and along with 498a , other section like 420, 406 also adds so not barred by limitation.

Yes.

If HC decline than can file appeal in SC.

Earning wife not entitle to maintenance.

Yogendra Singh Rajawat
Advocate, Jaipur
23085 Answers
31 Consultations

1. She can file DV case after a long gap also considering that this as continuing offence, however you can fight back questioning the maintainability besides other issues.

 

2. You can file a petition to quash but the high court do not entertain quash as a routine for DV cases.

 

T Kalaiselvan
Advocate, Vellore
90093 Answers
2503 Consultations

She being a bank employee  and drawing a handsome salary, she may not be eligible for maintenance for herself however she can claim maintenance for the child.

T Kalaiselvan
Advocate, Vellore
90093 Answers
2503 Consultations

  1. As per the information mentioned in the present quarry, makes it clear that you always wanted to London and save the relation, but it seems that your wife has some other plan.
  2. Let me tell you that all criminal cases when filed after few years then there should be reasonable excuse to that which i don’t think that your wife would have it.
  3. And to get the custody of the child, you may have to file a saparate suit under guardian ship act, if she doesn’t comply with the summons if the CWC.
  4. And now the question of getting maintenance from you, will be a waste of time for her as sh e has been working and there are number of judgments by Supreme Court on this. But yes she may get some amount of maintenance for child for sure.
  5. And yes you should approach the Hon’ble Supreme Court for setting aside of any order of pass by the cpurt there in either of the cases. 
  6. And let me tell you that all her cases will be treated as counter blast on you as all were filed after you applied for RCR.

Rest, you can have detailed discussion with me at any time if wish to pertaining to the presnet legal issue.

Sanjay Baniwal
Advocate, South Delhi
5477 Answers
13 Consultations

1. Her said  DV case filed after 2 years 11 months will hardly have any merit to stand the legal scrutiny. 

 

2. It depends on  allegation of what type of violence she has levelled against you and the maximum punishment awarded if such violence is proved. If the punishment for the said allegation is for a period of less than 3 years then you can file a quash petition before the High cxourt.

Krishna Kishore Ganguly
Advocate, Kolkata
27723 Answers
726 Consultations

If she is employed and her monthly earning is more than 1/3rd of your net monthly earning then she will not be entitled to any maintenance from you.

Krishna Kishore Ganguly
Advocate, Kolkata
27723 Answers
726 Consultations

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