• Harassment by wife

Dear Sir,

in year 1997 i got married to my indian wife and we started living together in thailand,a daughter was born in year 2004, in 2007 my wife and daughter came to
india for holidays, since then my wife refused to come back to thailand, the reason was she wanted to study 4 year course in order to obtain canadian visa,
this all happened without my aggrement but in the interest of her and her family members.

so she left our daughter with my parents and started studying and staying with her family members, recently she asked a power of attorney from me to be used 
to renew our daughter's passport which i gave her (specially mentioned) for the purpose of passport renewal only, once she got the power of attorney
she took our dughter from my parents and brought her to her parents house and also obtained a document stating that our daugther is under her custody and she 
is the legal guardian.

now she is threating my parents that she is going to file a case against us that my parents did not treat her well and i committed domestic 
violence ( which is not true) against her while she was staying in thailand, and also she will file a case against us to claim her part in our ancestral property 
and also she wants to live in may parents house and does not want to join me in thailand, my parents and my brother are living in that house.

she has not been  staying in my parents house since the time we got married, she has only been visiting our daughter and my parents took care of our daughter 
as well as all the schooling expenses (ofcourse supported by me).

need your best advise on these matters:

1)  what are the cases she can file against me and my parents.
2)  does she has the right in our property ( which my father acquired from my grand father).
3)  does she has the right to stay in our house where my parents and my brother is staying. (i have not been staying in that house since 1991).
4) what are my rights and what can i do stop this harassment to me and my parents.
5) me and my wife are not livng together since 2007.
6) how can i get back the custody of my daughter.
7) is it possible that my father can sell or thansfer the property to any one while there is a case against him filed by my wife to claim her share from that property.
8) does my wife has any rights or  can  take any legal actions if the property is sold or transferred to someone while  any  pending cases of dv etc.. claiming her share from that property against us.

currently i'm still living in thailand and wiling to bring her back to thailand but she refuses, can she charge me of domestic violence which she is complaining happened in thailand 9 years ago.

please need your help, i would really appreciate if we could talk over phone.


Thank you so much.
Asked 1 year ago in Family Law from Philippines
Religion: Sikh
1. She can file cases of domestic violence, dowry harassment and assault against you.

2. She has no right in the the properties of her in-laws.

3. If you have not stayed in the house of her parents foe the past 24 years then she also has no legally enforceable right to claim residency in their house.

4. You can file a complaint for criminal intimidation against her. In addition to this you can also seek a restraint order against her. You are also free to file for divorce. Timely action by you may neutralisze the adverse consequences which may emanate from the cases which she may file.

5. From whom did she obtain the document which states that she has the custody of her daughter? Does it speak of exclusive legal custody vested in her? Is the document registered or attested? To get back the custody of your daughter you need to file a case for child custody in the court. Unless there was a court order giving her the custody of your daughter she could not have claimed to be the guardian or custodian of the daughter.

6. Your father is at liberty to sell the property owned by him.

7. Your wife can seek a stay order against the sale of the house by your father. 

8. You will be given an opportunity by the court to rebut all her cases.

9. You can opt for phone consultation to speak personally.
Ashish Davessar
Advocate, Jaipur
18063 Answers
446 Consultations
5.0 on 5.0
1) your wife can file complaint under domestic violence act and seek right to stay in matrimonial home or alternative accommodation , maintenance and other reliefs . 

2) wife has no right in property standing in name of your father . it is not ancestral property . 

3) she has no right to stay in house owned by your father 

4) your father can move court and obtain an order restraining his daughter in law from entering house owned by him . 

5) your daughter is 11 years old now . make an application for child custody . welfare of child is paramount consideration . her wishes would be taken into account ,. generally custody of child is given to mother and father gets visitation rights 

6) your father can sell the flat as he is absolute owner of the same . 

7) as mentioned earlier your wife has no share in property standing in name of your father . even you dont have any share during your parents lifetime 

8) you should file for divorce on grounds of desertion and mental cruelty in india
Ajay Sethi
Advocate, Mumbai
23123 Answers
1214 Consultations
5.0 on 5.0
N THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

APPEAL FROM ORDER NO. 866 OF 2007 IN S.C.SUIT NO. 3072 OF 2007

WITH CIVIL APPLICATION NO. 1194 OF 2007

Smtl Hemaxi Atul Joshi … Appellant

(Org.Deft.No.1)

Vs.

Smt. Muktaben Karsandas Joshi & Anr. Respondents

(Resp.No.1 – org.Plff
& Resp.No.2 – org.

Defendant nO.2)

Mr.Jaydev Trivedi, Advocate, for the appellant.

Mr.Nitin Vhatkar, Advocate, a/w G.S.Hiranandani,Advocate

for respondent No.1.

Mr. Prajit S.Manjarekar, Advocate, for respondent No.2.

CORAM: J.H.BHATIA,J.

DATE: 5th December,2007.

1. Heard learned Counsel for the parties.

2. Admittedly, the appellant, who is defendant No.1, was married to respondent No.2 sometime in the year 1996 and out of this wedlock, they have two children. After the marriage, they were living in the suit house with the other family  members. The relations between the husband and wife got strained and the Marriage Petition for divorce was filed by respondent No.2-husband against the present appellant before the Family Court at Bandra, Mumbai. Plaintiff/Respondent No.1, who is the mother of respondent No.2 and mother-in-law of the appellant, claims that she is the exclusive owner of the suit house and her son and daughter-in-law after the marriage, were living with her in her house. However, in the year 2002, the appellant and respondent No.2 purchased another flat at a short distance from her house and intermittently they also used to live there. Respondent No.1 claims that she and other family members had noticed illicit relationship of the appellant with some other person. This was objected to by her and therefore relations were strained. According to her, the daughter-in-law went to her parents’ place at Surat in May 2007 after the Divorce Petition was filed. However, in the last week of May, 2007, she came back to Mumbai and forcibly entered into the plaintiff’s house and started harassing the plaintiff and her family members. She also abused the plaintiff in filthy language and assaulted her. In view of these circumstances, she filed the suit for perpetual injunction restraining the defendants from entering into and/or occupying and/or remaining in occupation of the suit premises belonging to her. She also took out a Notice of Motion seeking temporary injunction of the same nature. The application was opposed by the present appellant on the ground that the suit house is the matrimonial home and she is entitled to reside there in view of the Protection of Woman from Domestic Violence Act, 2005 (in brief, “Domestic Violence Act”).

3. After hearing the parties, the learned Judge of the City Civil Court accepted the contention of the plaintiff and rejected the contention of the defendant No.1-appellant that it is a shared household for the appellant. The learned Judge held that the suit house being the exclusive property of the mother-in-law/plaintiff, the daughter-in-law cannot claim any legal right of residence. In the result, the Notice of Motion was allowed and the temporary injunction was granted against the defendant No.1-appellant. Hence, she has preferred the present Appeal.

4. On perusal of the pleadings of the parties and the impugned order, it becomes clear that the suit house was purchased by the plaintiff/mother-in-law sometime in 1975 and, admittedly, the suit house stands in her name alone. There is nothing to show that it is a joint family property of the plaintiff, her husband and the children. Admittedly, it is not the house belonging to the appellant or her husband. The learned trial Court relied upon an authority of the Supreme Court in S.R.Batra vs. Taruna Batra AIR 2007 SC 1118 wherein the

provisions of the Domestic Violence Act, 2005 came to be considered.

5. Section 19 of the Domestic Violence Act provides protection of residence to the aggrieved person.

Section 19(a) reads as under :-

“19. Residence orders (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order –

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared

household;”

Under Section 2(a) of the Domestic Violence Act, “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”. . Section 2(q) defines “respondent” as any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the

male partner. . Section 2(s) defines “shared household” as follows :-

“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or  along with the respondent and includes such a household whether owned or tenanted either

jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

5. The question is whether merely because the appellant/daughter-in-law was living along with husband in the household of her mother-in-law, she would get a legal right of residence in the house of mother-in-law. Admittedly, the appellant and her husband-respondent NO.2 had purchased another flat in December, 2002 jointly. It is not disputed that intermittently the husband and wife used to sleep and stay in that house. That house is at a walking distance of about 5 minutes from the suit house. The appellant can claim legal right in that house firstly, because it is the joint property of herself and her husband and secondly, because she was intermittently living or at least staying in that house along with her husband and children. As far as the suit house is concerned, it is

not the property in which her husband has got any legal right and therefore she cannot claim that the suit house is the shared household within the meaning of Section 2(s) of the Domestic Violence Act. After referring to the provisions of the Domestic Violence Act and some case law, Their Lordships of the Supreme Court in the case of S.R.Batra vs. Taruna Batra, observed as follows in para

16 of the Judgment :-

“16. There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.” From this, it is clear that the wife may have rights only against the husband and not against father-in-law or mother-in-law. Their Lordships further observed as

follows :-

“28. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband is a member. It is the exclusive property of appellant No.2, mother of Amit Batra. Hence it cannot be called a ‘shared household’.

The facts in the case of S.R.Batra and the present matter are almost similar. Taking into consideration the legal position and the facts, the appellant cannot

claim any legal right of residence in the house belonging to her mother-in-law. She can claim such right only in the house of her husband and incidentally in the present case, she and her husband jointly own another house at a short distance from the suit house. Taking into consideration all the facts and circumstances, the learned trial Court Judge was justified in passing the order of temporary injunction restraining the defendant-appellant from entering into

the suit house and causing interference in possession of her mother-in-law on the suit house.

6. In the result, the Appeal stands dismissed.

7. As the Appeal itself is dismissed, the Civil

Application does not survive and stands disposed of accordingly.

(J.H.BHATIA,J.)

Ajay Sethi
Advocate, Mumbai
23123 Answers
1214 Consultations
5.0 on 5.0
1. She came to India in the year 2007 and after 8 years of coming to india she wants to file police complaint against your violence. Such complaint if she files will be too week to stand legally. So, relax,

2. Your wife has no right on your parental property or your property during your lifetime,

3. Your father does not want her to stay in his property where you do not stay, then your wife has no right to stay there,

4. Your parents as well as you can lodge a police complaint against her after collecting evidence of her such harassment throug audio recording,

5. You shall have to decide whether you want to continue the relationship with her or terminate it and act accordingly by taking regal course,

6. You shall have to file a child custody case,

7. If there is no stay order restraining your father to sell the said property, he can surely sell it of,

8. She has no share on your father's property. So, your father can sell off his property.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Hi, She may file a police complaint for harassment under section 498/A India Penal Code and so also demostic violence act but one thing you must remember even though she may file police complaint against you and your parents but as per Supreme Court Guidelines the police will not arrest you immediately they have to issue notice and thereafter they will proceed further and in the mean time you can apply for anticipatory bail.

2.  The wife is not entitled to right over the property she is only entitled for maintenance.

3. You have to file petition in the court for seeking custody of the child in the court so that you can get back the custody of the child.

4. For selling of the property is nothing to do with the family dispute with your wife but if the property is ancestral property and if your parents want to sell the property then  she may obstruct the selling of the property through your son.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
Dear Querist
My opinion on your queries are as under:

1)  what are the cases she can file against me and my parents.
Opinion: She may file a dowry harassment case against you and your family members, she may file a domestic violence case, she may file a maintenance case.

2)  does she has the right in our property ( which my father acquired from my grand father).
Opinion: No, she is not entitle to get any share from the property, there is no law in india yet.

3)  does she has the right to stay in our house where my parents and my brother is staying. (i have not been staying in that house since 1991).
Opinion: No, she has no right to stay in the house where husband is not residing.

4) what are my rights and what can i do stop this harassment to me and my parents.
Opinion: you may file a information cum complaint against her before higher authorities as police, NCW, CJI and this should be only for the information and not for any action.

5) me and my wife are not livng together since 2007.
Opinion: Immediately file a divorce case against her before family court and after your divorce case if she filed any false cases against you then her case may be treated as counter blast case.

6) how can i get back the custody of my daughter.
Opinion: you have to file a child custody case before family court under guardian & ward Act along with Hindu Minority & Guardian Ship act

7) is it possible that my father can sell or thansfer the property to any one while there is a case against him filed by my wife to claim her share from that property.
Opinion: If there is no joint name property with her then she is not entitle to get any property from him, if there is no stay order passed by the court then he may sell or transfer the property.

8) does my wife has any rights or  can  take any legal actions if the property is sold or transferred to someone while  any  pending cases of dv etc.. claiming her share from that property against us.
Opinion: Legally not.
Nadeem Qureshi
Advocate, New Delhi
3522 Answers
129 Consultations
4.9 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
13934 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23123 Answers
1214 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18063 Answers
446 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5160 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3522 Answers
129 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
869 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
427 Answers
15 Consultations
4.7 on 5.0
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2729 Answers
41 Consultations
4.9 on 5.0