• False domestic violence case

My wife left my house on 22.01.16 in night alongwith 3 year old kid. She approached the local police station where she verbally made a complaint against me. I was summoned to the police station and thereafter she called her cousin , went back to my house, collected all the valuables and her luggage cloths etc in the presence of 2 police constables and my mother, and then went away with her cousin. That night nothing happened and no complaint was registered against me. Next day her cousin and brother called me and threatened to kill me using abusive language. I recorded the call and gave a complaint in local police station. Next day I gave a application in Parivar Paramarsh Kendra and a counseling date was fixed. She too gave a application in Mahila thana, Mahila aayog etc. levelling  all sorts of false allegations. In the 2 counseling sessions she insisted for divorce while I kept telling I am still ready to stay together. The counselor tried to persuade her but eventually she closed the case advising both of us to move to court for a mutual divorce.(She specifically mentioned that the boy is ready to stay with the wife but wife is not agreeing).
Now my wife made an unexpected move and gave a statement in writing in the local police station that she does not want police action (with reference to 498 a) and that she will approach court for divorce.(Probably because I do have some proofs against her and being from other town it was not economically feasible for her and also that had she filed a report, I would also have reciprocated by filing complaint against her brothers and also that she had consented for a mutual divorce at paramarsh Kendra.) Now I have come to know that she has filed a case of maintenance and domestic violence against me in Jabalpur High court.
Now what should be the strategy for me hereon, should I file a transfer petition to my hometown, should I file an FIR against her brothers for threatening me or will that further infuriate her, and how to get back my child and to expose my wife. My inlaws are financially not that sound and the atmosphere there in general is also not good for upbringing of child.I have only my 70 year old mother in my family who is a heart patient. Sister and brother in law are staying outside. Please guide.
Asked 9 months ago in Family Law from Bhopal, Madhya Pradesh
Religion: Hindu
1) Convenience of wife is generally taken into account . contest DV case on merits

2) case wont b transferred from jabalpur to your home town 

3)file for divorce on grounds of mental cruelty 

4) in said divorce case seek joint custody of the child 

5) custody of child under 5 years is generally given to mother 

6) mother lap is regarded as gods cradle 

7) welfare of child is paramount consideration 
Ajay Sethi
Advocate, Mumbai
23339 Answers
1220 Consultations
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1. The case for maintenance and domestic violence cannot be filed directly in the High Court. Be that as it may, you are free to apply to the HC to transfer the case to your city but the HC may saddle you with costs of your wife's transportation and lodging expenses if the case is transferred. 

2. To get back your child you are required to file a petition for child custody in the court which will be decided on the touchstone of child's welfare.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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Hi, your wife has already filed a complaint against you for the offence punishable under section 498/A so you have to approach the court for anticipatory bail.

2. Secondly she filed a petition under DV act and also for maintenance so you have no other options to contest the case on merits.

3. It is better don't filed any case against in-laws it will back fire to you, because you are in receiving end.

4. Tried to settle the matter amicably.
Pradeep Bharathipura
Advocate, Bangalore
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133 Consultations
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First you enquire about her complaint because High court has no jurisdiction to hear this type of complaint. If she is living in Jabalpur she can file complaint CRPL and Domestic violent net provide such jurisdiction. 

You should file a transfer petition under section 407 or 408 before high court or court of session for transfer of case to any other district, you should show that if you attend court in Jabalpur they can kill you or cause grevious hurt . Show recording of heated argument as an evidence. 
Shivendra Pratap Singh
Advocate, Lucknow
2771 Answers
41 Consultations
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Now I have come to know that she has filed a case of maintenance and domestic violence against me in Jabalpur High court.
She cannot file a DV case and maintenance case before the high court directly, it is a subject of a magistrate court, the high court will not entertain such cases.  Confirm.



Now what should be the strategy for me hereon, should I file a transfer petition to my hometown, should I file an FIR against her brothers for threatening me or will that further infuriate her, and how to get back my child and to expose my wife. My inlaws are financially not that sound and the atmosphere there in general is also not good for upbringing of child.I have only my 70 year old mother in my family who is a heart patient. Sister and brother in law are staying outside. 
As I said that it will not be possible for her to file DV case and the maintenance case before high court, you may confirm if she has file one such case at all.  There is no provision to transfer a high court case to your home town court.
Since you have already given a complaint with the police, they will automatically register a FIR, so just remain calm over the issue, let all the matters settle down and after that if need be you may withdraw your complaint against them. For child custody you may have to file a separate case, if your wife is not agreeing for the same during mutual consent divorce process.
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
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1) you have stated that your wife  and collected all the valuables and her luggage cloths etc in the presence of 2 police constables and my mother, and then went away with her cousin.

2) it is already on record that wife has collected her valuables . no need to file any report to police station . i presume when she collected the valuables you have taken from your wife in writing the list of articles taken by her

3) dont evade any summons issued by court 

4) if you have been threatened by her brothers on that ground you can move HC for transfer of case 

5) your wife only has right to stay in her matrimonial home . sh ecannot claim ownership rights on the under construction flat

6) generally one third of income is awarded as maintenance . in present case since you also have 3 year old son court would consider said fact while awarding maintenance
Ajay Sethi
Advocate, Mumbai
23339 Answers
1220 Consultations
5.0 on 5.0
1. A counter case can be filed only if there is one made out and not for the mere sake of filing one. You are free to file a complaint of theft against her but it will have to be proved.

2. Accept the summons and seek extension of time from the court to explore the possibility of reconciliation.

3. The case can be ordered to be transferred to your place if you apprehend threats to your life, in which event you may have to bear her travelling expenses.

4. She has no share in your absolute or joint properties, so there is no need to  transfer.

5. The maintenance amount may be 1/3rd of your net salary. The order can be challenged.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1) She has filed a case in session court /Family court only and not in the High court as earlier mentioned by me. I am not sure about the charges but I am predicting that she must have filed DV, maintenance and divorce case as I have not received any summons yet. Will it be a wise step to file any counter case against her as for ex. she has taken around Rs 25000 of my hard earned money with her from my house, apart from her luggage and valuables. Do I need to file an FIR for it or a case can be filed directly in the court and will it be advisable to file such report/case.
Without knowing what case she has filed before the court how do you conclude that she has filed DV, maintenance and divorce case.  All these three are different cases and cannot be clubbed together, so confirm. 
What type of counter case you think you can file against her?, Do you want to file a theft case against her for the amount  of Rs. 25,000/- taken away by her?, you can proceed but not for the luggage she has taken with her because they may belong to her and you cannot object to it.  You can file a criminal complaint directly before court provided you have lodged a similar complaint with the police and they seem to be ineffective. 





2)  You may decide based on the prevailing situations on this.





3) Will it be advisable to evade any summon issued by the court, at least initially, as I am still hopeful for a peaceful solution and bringing back my wife. If the summon is not received will it give a breathing space of 20-25 days before the second summon is issued or the same summon is reissued.
Dont do that, you can present and express your opinions before court, the court may consider your request accordingly.



 
4) Can the case be transferred to my hometown on the grounds that her brothers are threatening me and if my appeal is considered on such grounds, do I still need to pay her the travelling and other expenses.
If the threat persists and you anticipate threat or danger to your life, you may proceed with that also.





5) Most importantly I have 2 houses, one exclusively in the name of my mother where we are residing and another one, a flat which is under construction and is in joint ownership of me and my mother and loan for the same has been availed by me. Do I need to transfer the property to someone else so that my wife cant have a claim on it.
not necessary.



T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0

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