• Notice received under Section 23 of PWDV Act

On 7th Dec 2015, I have received a notice from LD court, Alipore Kolkata that under case no 5*** of 2015, filed under section 23 of PWDV Act for interim maintenance, I was required to appear on 2nd Dec 2015 and the next date is 6th Jan 2016 for a hearing. The date of 6Dec2015 is handwritten on top of the page and the enclosed petition has a page missing. 

Q1. What happens if I am unable to appear in the court on the date mentioned. I am unable to make reservations at such short notice and also unable to obtain leaves from office at the start of the year. 

Q2. Am I allowed to put an application online or by a family member for a date in future. Or will the court issue a warrant against me or pass an ex-parte judgement in my absence. 

Q3. Can we obtain the original copy or full copy of the allegations online by any means. Without having to appear in court on hearing date. 

In the prayer/notice, the petitioner (my wife) has leveled multiple fabricated and baseless allegations. 

Q. Do they come up for discussion during the said hearing? Or only during divorce proceedings?

In one of the allegations my wife had accused me of manhandling and verbal abuse when she came back to my home after a gap of about 4 months. Whatever shouting and disturbance of peace she caused was witnessed by my neighbors. 

Q4. If I wish to include the testimony of my neighbors who witnessed this quarrel or those who have assisted in the marriage solemnization, how do I go about it? Can written statements like affidavits be made admissible as evidence in court?  

Q5. Can I take a sworn affidavit from them to produce in the court during hearing of my divorce or interim maintenance hearings? And if yes in what format such an affidavit may be prepared. And can I make the accompanying cousin of my wife a respondent or party to the hearing, and how?

Q6. We are under constant advice from family & friends to give her a second chance and bring her home for the second time. Do it think it is advisable and if we have to do it, then what precautions to take prior to bringing her home or starting a dialogue.  

Q7. Can we charge them with a divorce of other case with the grounds that the marriage was done with malafide intention of making money by means of alimony.
Q8. Can she now, after having lived separately for 10 months accuse me of dowry harassment or domestic violence and will court believe that?  

Q9. In the court of Kolkata/WB is there any fixed amount to be paid to the wife as interim maintenance under this section? I have heard that in UP, the amount is Rs2000/- pm.
Asked 12 months ago in Family Law from New Delhi, Delhi
Religion: Hindu
Q1. What happens if I am unable to appear in the court on the date mentioned. I am unable to make reservations at such short notice and also unable to obtain leaves from office at the start of the year. 
You can engage a local advocate and ask him to represent all the respondents during your absence in the court on the date of hearing.



Q2. Am I allowed to put an application online or by a family member for a date in future. Or will the court issue a warrant against me or pass an ex-parte judgement in my absence. 
Online applications are not entertained in court, you can appoint an advocate to avoid exparte orders.




Q3. Can we obtain the original copy or full copy of the allegations online by any means. Without having to appear in court on hearing date. 
You can get the copies only through court and not online without appearing before the court. 




In the prayer/notice, the petitioner (my wife) has leveled multiple fabricated and baseless allegations. 
Challenge them during trial of the case.



Q. Do they come up for discussion during the said hearing? Or only during divorce proceedings?
The allegations of a case are to be challenged during their trial proceedings.


In one of the allegations my wife had accused me of manhandling and verbal abuse when she came back to my home after a gap of about 4 months. Whatever shouting and disturbance of peace she caused was witnessed by my neighbors. 




Q4. If I wish to include the testimony of my neighbors who witnessed this quarrel or those who have assisted in the marriage solemnization, how do I go about it? Can written statements like affidavits be made admissible as evidence in court?  
If your neighbors are ready to depose their evidence as witnesses, they can be roped in as defence witnesses.  Their written statements cannot be considered as evidence.



Q5. Can I take a sworn affidavit from them to produce in the court during hearing of my divorce or interim maintenance hearings? And if yes in what format such an affidavit may be prepared. And can I make the accompanying cousin of my wife a respondent or party to the hearing, and how?
All these people can be listed as defence witnesses and can be mad to depose evidence during defence witness stage.




Q6. We are under constant advice from family & friends to give her a second chance and bring her home for the second time. Do it think it is advisable and if we have to do it, then what precautions to take prior to bringing her home or starting a dialogue.  
If at all you have decided to take her back, you may impose certain conditions that she will not resort to such humiliating acts, shall not indulge in cruel acts of abusing and yelling or misbehaving  etc., 




Q7. Can we charge them with a divorce of other case with the grounds that the marriage was done with malafide intention of making money by means of alimony.
You have to prove your allegations with documentary evidences  for this .



Q8. Can she now, after having lived separately for 10 months accuse me of dowry harassment or domestic violence and will court believe that?  
Whether the court will believe it or not shall depend on the arguments made by both sides, however since this is a continuous offence she can very well make such accusations. 




Q9. In the court of Kolkata/WB is there any fixed amount to be paid to the wife as interim maintenance under this section? I have heard that in UP, the amount is Rs2000/- pm.
There is no such rule anywhere but it depends on the circumstances of th case. 


T Kalaiselvan
Advocate, Vellore
13964 Answers
127 Consultations
5.0 on 5.0
1) you can engage a lawyer to appear on your behalf seek time for filing of reply 

2) In DV cases no warrant are issued but court can pass exparte orders as you have been duly served 

3) you can request your wife / her advocate to furnish copy of the application filed under Dv act 

4) all allegations made in DV case has to be proved during trial by your wife 

5) you can deny the allegations in your reply and you can also lead evidence of the witnesses you desire 

6)you cannot make wife cousin a co party to the DV proceedings 

7) amicable settlement is the best option . you can during counselling in DV case try to resolve all disputes 

8) DV / 498A is continuing offence . wife can file Dv or 498A case after 10 months of separation 

9) amount to be paid as interim maintenance is at the discretion of court and is awarded considering your income 
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
1. You are not required to appear personally as it is your lawyer whose appearance would suffice.

2. No online application can be filed. Your lawyer, once you engage him, will be able to obtain the copy of the petition and other documents filed by her.

3. The relatives whose testimony you wish to be recorded will have to turn up personally in the court for this purpose. Affidavits cannot be filed.

4. Giving or not giving another chance is up to you. Now that she has filed the case it will be unwise to give her another chance.

5. No charge for fraud and/or cheating is made out.

6. There is no time limit to launch a prosecution for dowry harassment and domestic violence. So she can do this.

7. You are misinterpreting the law which exists in UP. There is no limit to the financial support which can be sought by the wife and ordered by the court in DV proceedings.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
1. Engage a lawyer for appearance before court on behalf of you on the posting day.

2. You can use the power of attorney .Online applications,emails are are present not working with court procedure so it is irrelevant.

3.You can get copy from the copy ,if the supply copy is defective. Contest the case on merit with true facts and cogent evidence.

4.Your neighbours may include as witness at the time of evidence stage and they can tender the evidence for you.

5.You will chose best appropriate person for witness and make him/her as witness list .If needed your advocate will make the affidavit

6.In life has no retakes are possible. So if you think for giving a second chance cure the defects of ego,bad emotions,hot tempered  and abusive behaviour with consultation of a psychologist or a marriage counsellor. 

7.Yes you can but you haver to prove before the court.

8. If the story written in the petition and the evidence adduced before the court are  going parallel then how can the court disbelieve the matrimonial dispute with regard to dowry harassment.  

9.The Supreme Court of India has held that 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.
Ajay N S
Advocate, Ernakulam
1911 Answers
19 Consultations
5.0 on 5.0
Hi, in the next date of hearing you can engage the advocate and file a vakalath on behalf of you.

2. After that you can file a detailed objection to the petition filed under DV Act, stating that making false acquisition before the court.
3. If you unable to appear before the court then court will placed ex-parte and proceed further so it is better you can appear before the court in the next date of hearing.

3. As far as maintenance is concerned there is no hard and fast rule, for awarding maintenance it all depending upon your income, social status etc.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1.On the first day the applicant will submit the service return i.e. the evidence that the notice has been received by you. The Court may pass ex-parte order directing you to pay ad-interim maintenance to your wife which is normally fixed in between 1/5th to 1/3rd of your net monthly earning. Yiu should engage a local lawyer to attend your case,

2.There is no provision of accepting  online application by Alipore Court. You are required to engage a lawyer to defend you on the dates of hearing and also foe filling the written objection,

3.Yes, your advocate shall have to inform the Court about non receipt of the application and get order for supplying the same to you or your Advocate,

Her lawyer will attend the Court for her though she may chose to attend the Court though it is not mandatory,

4.You shall have to submit your written reply to the application with a list of witness who will be called upon by the Court to depose and be cross examined,

5.No. Your taking sworn affidavit from your witnesses will not help. They shall have to be examined and cross examined before the Court. On what ground you can make her cousin a party? Actually the case is against you which you shall have to contest fittingly,

6.  She has already filed a DV case against you. Under the said circumstances whr is the scope on your part to give her a second chance? It will be prudent on your part to try to defend yourself first,

7. You can level any charge against her which yu shall have to prove with evidence otherwise she may sue you again for making false allegation against her,

8. Court will hear both the sides and pass irder after judging both side's arguments,

9.No. There is no such amount fixed anywhere in India towards allowing maintenance. it is generally in between 1/5th to 1/3rd of your net monthly earning.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0
Question =>What all other cases can be brought about by the girl’s family? 
Question =>Which of those cases are the ones in which police remand or arrest is possible?
She can access  maintenance case under section 125 cr.p.c besides 498A, 406, 3 & 4 DP act, and DV act case, if there was any altercation, she may file a criminal complaint under section 294B, 354, 506 IPC (if there were any injuries in the assault then section 323, 324 etc) .;
Except for the complaints with police and the police registering FIR, no arrests will be made on other cases.






Situation:- I have heard conflicting information regarding 498 being a non-bail able section of IPC. 
Question =>Is it true; can the police initiate arrest or remand of my parents or myself? How to safeguard myself and my parents.  Specially against a police remand, harassment or arrest warrant. 
On receiving a complaint from her, the police will first summon all of them against whom the complaint is made, they shall inquire and take cognizance f the the complaint, if need be and after that the police may register a FIR and initiate action for remanding the accused.  However sooner an information about the registration of FIR is received, you may obtain AB from the district court and then challenge her false case before the trial court. 
Actually in your case the police has not taken steps for arrest because you have rushed up the police station before she could and have registered a police diary, hence the police is investigating the matter dutifully without making any formal arrests. 



Question =>Is it advisable that I should I move my savings whatever they may be to some place untraceable. 
Not necessary.  You need not disclose your savings, even if she is mentioning about this, it becomes her duty to prove it with evidence.


Question =>Can the court order a full statement of accounts as in how much saving I possess / have accumulated. 
No, court will not pass any such orders on its own.  She may file a petition seeking court to direct you to furnish the details, you may give a blank report stating that you do not have any, the court will not probe further on this matter, it will be her turn to prove her claims beyond doubt with documentary evidence.



Question =>Can my wife or her lawyer using my residential address or name etc obtain a copy of my ITR or financial statements?
She can apply for your ITR through RTI act.



Question =>What happens to the items which are on the list but in real non-existent? 
Just do not be bothered about the items which are not with you, make it a point to deny the possession of all such items which you do not.  She cannot force you neither the police.


Question =>Will she have an onus to prove their existence? Or will it be only on me to provide a proof of those being non-existent? 
She has to prove it.

Question =>Also, since I can attempt to prove the existence of a gift not the non-existence, how to go about this?
You can in a reply give a list of items held in your possession and deny other items which are not with you.


Question =>How to prevent or protect our own belongings to be brought under the ambit of streedhan?
What do you mean by this?, Her own items shall be construed as Streedhan and not all those items in your home.



Situation:- Current I am getting harassed by having to travel to Kolkata and my parents are old. Plus the leaves from my employer and cost of travel.
Question =>Is it sufficient to have someone appear on my behalf with a Power of attorney? And if yes, till what extent or time. 
For trial in the criminal cases, you cannot give a POA to somebody to represent you in the court. You have to appear, however during certain occasions you can ask your lawyer to represent and inform court abut your inability to attend the court.  You ca also file a petition seeking permission of court to dispense with your personal appearance on the reasons and grounds stated under section 205 cr.p.c. 
 








 




Situation continued::- Also I wish to be personally present during any arguments or cross examination. 
Question =>How do I ensure that I don’t have to appear for just any hearing but at the same time don’t miss out on the important ones like cross examination or arguments etc?  
For this you have to follow it up closely with your lawyer. 




Situation:- Quite a few of the allegations in the case for maintenance and in the FIR are completely fabricated and baseless. Some of them can be actually proved to be malicious. 
Question =>Can I bring the girl or her family to justice or ensure they be held accountable for perjury. If yes then when. 
If she is making a false statement be swearing an affidavit before court and is proved o be wrong, you can take her into task by filing a perjury case under section 340 cr.p.c.




Question =>What recourse does a male/husband have for wrongful persecution?
You can file a petition against the police for malicious prosecution after being acquitted by court in the present case. 


Question =>Is there any way I can plead to the court to arrange for a polygraph or Narco analysis so that all the lies that the girl has said about me and family can be brought on records.
This test is not applicable to disputes arising out of matrimonial issues. 

T Kalaiselvan
Advocate, Vellore
13964 Answers
127 Consultations
5.0 on 5.0
1) you have to contest cases filed by your wife on merits 

2) if wufe has made false statements in oath you can file complaint of perjury 

3) you  cannot force your wife to undergo polygraph test or macro analysis test 

4) you can execute POA in favour of family member to represent you but have to appear in court for giving evidence and fir cross 

5) if false items are mentioned in list onus is on wife to prove that these items were given at time of marriage 

6) you must have engaged kcal lawyer . He will guide you in this regard 
Ajay Sethi
Advocate, Mumbai
23165 Answers
1216 Consultations
5.0 on 5.0
1. She can file maintenance and compensation claims against you and she can also seek a stay order against the alienation of properties owned by you. Police remand and custody is possible only in criminal cases and DV.

2. 498A is non-bailable. Police can arrest the accused at anytime after the FIR is filed, to preempt which the accused can and should seek anticipatory bail from the court.

3. Moving savings to an untraceable medium does not help in the court as it is basic law that husband has to support his wife through maintenance regardless of whether he has savings or not. Your account statement of the past 3 years can be ordered to be produced in the court. 

4. The onus to prove the existence of items claimed by her is on her.

5. Before the CAW cell or police, as the case may be, it is you alone who has to appear. In the court your lawyer alone can appear with the permission of the court.

6. You have to arrange your availability in the court on the hearing which you desire to attend.

7. Perjury can be filed if the offence can be proved in the court.

8. You can also launch criminal prosecution of your wife for defamation for filing a false case against you. Compensation can also be sought from her. 

9. No you cannot seek polygraph or brain mapping test.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
1. Situation:- After this they can file Divorce suit on the ground of cruelty claiming huge one time settlement amount.
Police can make arrest if they found some evidence in support of her complaint after conducting investigation. As per recent order passed by the supreme court, no arrest can be made in connection with a 498A complaint, without conducting an investigation. However, you are hereby advise to avail anticipatory bail for all the accuse for your safety.

2.Situation:- Answer to this question has already been given earlier. You are advised to take AB for all the accused immediately. Your filing police complaint will help you in contesting the DV case filed by her.

3.Situation:- Your wife will have no right on your property or savings. She can claim maintenance which will depend on your net monthly earnings. The Court can certainly direct you to disclose under affidavit, your earnings and also direct the I.T. department to submit copy of your ITR for the last three years to ascertain your income. There is no r4eason for transferring property/savings in some other's name,

4.Question => She can pray before the Court for a direction upon the IT Department to submit copies of your 3 years ITR. She need not take any other trouble for this,

5.Situation:- She has to prove that those Streedhan exists and are with you when the police will recover the same. You can submit before the Court the evidence that some of the claimed Streedhan did not exist at all. All the items gifted by you and your family members and friends to her is treated as her Streedhan on which you can lay no claim. 

5.Situation:- Initially, your lawyer can appear for you and at the time of giving evidence you shall have to appear before the court for being examines and cross-examined. You can attend the Court any time during the hearing either at the time of argument or any other things. It depends on your wish.

6. Situation:- After the case is or cases decided in your favour, you can file a petition before the Court against her filing/lodging false cases and complaint against you. Court will not allow any polygraph test in cases which are not important for national security or is of National importance.
Krishna Kishore Ganguly
Advocate, Kolkata
12084 Answers
228 Consultations
5.0 on 5.0

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