• Section 12 and 23 of domestic violence

Hello sir,

I am 33 year old married Hindu male completed around 4.5 yrs of marriage. (Jan 01, 2011)

For the first three years we lived as a joint family with my father and mother. w.e.f. Jan 01, 2014 we move to our rented home near our old home. Since we both are working we left home at 8 am for office and come by 8 pm. (we drop our daughter at my old home to my parents which is nereby on a daily basis) After 4 months (on 2nd may, 2014) my wife (26 yrs) left our rented home with our 2 year old daughter with all her Stridhan. (only she sent one text message on my cell at 11 am in the morning that " I'm going to my parent place permanently with our daughter"). Hence I informed the same at our local police station on the same day via written application. I have gone once in a week to her residence for the first two months but she never talks to me and if I tried, not giving any response, don't receive my phone calls, After 3 months my parents received threatening call from her parent asking for Stridhan or else they file criminal cases against me n my parents. so again I have given 2nd written application in the same police station about the threatening call.

Even her parents were not supportive and doesn't want our relation to continue with. they even not telling me the exact reason why they front want to continue. she is the only child in her family. she is stubborn and short tempered by nature and thinking too much unnecessarily which results in stress and also undergoing some psychiatric treatment about
Stress. She even tried for suicide in year 2008 before 3 years of message by cutting her wrist. She had communicated this to me when we are on our honeymoon after marriage.

She is frequently changing her cell no. and not even shared with me. so upon strong doubt have discovered that she is talking to one of her school male friend (27 yr) frequently in the midnight 
(12 to 3). having her call records as a proof via detective report.

I'm having 30000 salary pm (mba in finance)/ she is also employed with 30000 salary pm (diploma civil engineer)

I even had sent two general e-mails with reminders to her on Sep 2014 to come back our home thinking the future of our 2 yr old daughter. but have not received any feedback from her.

She had insisted mutual divorce orally three to four times in between this tenure. but in Dec 2014, she had made a complaint in women cell at thane. Then I received call from thane police station for further investigation. When I go there 3 women (avg 50 years of age) had a chat with me for around 30 minutes. Even my wife was present there. She even admitted there orally that i had not beaten her and our daughter was taken care by her in laws only which she wrongly put in her complaint. When asked by few questions by the ladies, she kept on crying but couldn't answered a single question. But later after 10 days she given her written statement saying that she will proceed only through court by mutual consent.

Now she had filed section 12 and sec 23 under domestic violence on me few days back.

kindly advise on following points.

1. How can I protect myself from this domestic violence case? 

2. Can she file false criminal cases like 498a etc. against me later on after 1.5 years since she left? (Since it require jury's permission which I read through some references)

I don't want to drag my family in this issue.

3. If I will have to pay the maintainance, how much amount I will have to pay?

don't wish to give any rather would like to get the custody /responsibility of our daughter.

4. Instead I want her to pay the maintainance charges to me since I have gone through tremendous mental agony and she had spoiled my life for no reason.

Regards
Nayan Thorat
Asked 1 year ago in Criminal Law from Mumbai, Maharashtra
Religion: Hindu
1. How can I protect myself from this domestic violence case? 
There is nothing that you can do to protect yourself, her own case will protect you, because she has not sought any relief in her complaint because section 12 is a provision under which she can file this case and  23 is for exparte order for the reliefs sought  under other section. So let the case come for trial, you can challenge it.


2. Can she file false criminal cases like 498a etc. against me later on after 1.5 years since she left? (Since it require jury's permission which I read through some references)
She can lodge a complaint even now with the police  attracting offences punishable under section 498a IPC but at this  belated stage her complaint may not be effective.Hence it cannot sustain.


3. If I will have to pay the maintainance, how much amount I will have to pay?
She being employed  herself, may not be eligible for maintenance from you but you may have to pay maintenance to your daughter. The quantum will be decided by court on the merits of the case. 




4. Instead I want her to pay the maintainance charges to me since I have gone through tremendous mental agony and she had spoiled my life for no reason
If you are not employed then you can claim it under the provisions of HMA.
T Kalaiselvan
Advocate, Vellore
14105 Answers
127 Consultations
5.0 on 5.0
1. The only way to protect yourself from the DV case is to contest it on merits in the court. The one who files the case has to prove the allegations in the court. Unless she proves her allegations she cannot get the relief she has sought.

2. She can file 498A and other criminal cases against you even after 1.5 years, but you can enter defence to contest it. Seek pre-arrest bail as soon as the case is filed so that you are not arrested. There is no jury system in India, so what you have read is not correct.

3. You can contest her claim to maintenance as she is earning on her own.

4. To get the absolute custody of your daughter you are required to file a case for child custody which will be adjudicated on the touchstone of welfare of child.

5. You are at liberty to file for divorce on the ground of cruelty.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
Contest the case in the court.Give evidence according to your favour.
She can file case against you, Delay for filing the case is negative her case if she files so.
no fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case.The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute.
Your wife is also earning self. If a woman’s income is at least half of her husband’s income, then most often she may not get any maintenance. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. There is no way of prevention of such cases. Of cases are filed you have to fight/contest the same in respect of its merit.
2. There is no time limit. She can file such case even after 15 years of separation. If she puts name of your parents/relatives you can not stop her from doing so.
3. The amount of maintenance varies from 1/3 to 1/5 of your income/
4. Sorry, under the current law of the land you are not entitled to such reliefs.
Devajyoti Barman
Advocate, Kolkata
5236 Answers
54 Consultations
4.9 on 5.0
1. You shall have to contest the DV case fittingly. here will be no arrest against DV case,

2. She is at liberty to file any cae/complaint which can not be stopped. Filing of 498A complaint does not require any Jury's permission,

3. Since she is employed, she is not entitled to any maintenance. You might have to pay around 1/5th of your net salary towards your child's maintenance which will be decided by the Court,

4. You ae not entitle to maintenance from yur wife since you are employed.
Krishna Kishore Ganguly
Advocate, Kolkata
12127 Answers
233 Consultations
5.0 on 5.0

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