• False DV and interim maintenance

Hi,

This is Rajesh,(name changed bcz of society). I got married in Feb'16. After staying in my house for 2months, my wife went to her home for a casual visit and never returned.

Though I requested her couple of times to come back, she ignored and her parents never cared. Eventually I lost my patience and I scolded her father badly for his attitude and behaviour. 

Now they failed a false DV case, alleging that

1. I scolded them badly (they have a call recording).
      - true I agree to the fact that I scolded them

2. I asked her couple of times to learn cooking and customs.
      -true, I agree that I asked her to learn cooking. I   just asked her, did not torture. ( she is housewife, not working).

3. I asked her couple of times, whether she likes me or not
  -true, I asked her, as she was NOT listening to me at all.

4. And all my family members tortured her mentally. 
   - false, my family members were busy with my mother's treatment.

Ps: my mother is a liver sorosis patient, who is almost bed ridden and no energy to speak properly, from last year. 

police have heard everything from my side, but as my wife refusing to come back to my home, they will go ahead and file the case it seems. 
Now, could you please suggest me on below.

1. Are points 1,2 and 3 considered as DV?

2. If yes, Will police arrest me and my family?? If yes, is it possible to get a station bail for myself and for my family?
3. How I can fight this case, going forward and
4. My father is a govt employee, does this case effect his job in anyway? 

Thanks for your kind information.
Asked 8 months ago in Family Law from Australia
Religion: Hindu
1) on DV case there is no arrest 

2) wife can file DV case against you as per the allegations made in complaint 

3)it would not affect your father job 

4) you have to contest the case . Deny allegations explain circumstances under which you scolded her 

5) case will go on for 5 years 
Ajay Sethi
Advocate, Mumbai
29799 Answers
1619 Consultations

5.0 on 5.0

1. The allegations mentioned above do not fall in the category of DV at all.
2. Fight the case on merit . Additionally challenge the case in quashing in high court being the abuse of process of law.
3. No way his job is getting affected.
Devajyoti Barman
Advocate, Kolkata
7710 Answers
93 Consultations

4.9 on 5.0

Although your wife has filed case of domestic violence she may not be able to prove her case in the court only on grounds enumerated by you. 
2.As a matter of precaution please apply for AB and fight the case on merit. 
3. The case will not effect your father 's job adversely and for that it is advisable to take anticipatory bail for all of you. 
4. Under the circumstances it is better for you to file a case for Restitution of conjugal rights under sec 9 of HMA which will mitigate her DV case as well. 
Sushil Jha
Advocate, Patna
198 Answers
2 Consultations

5.0 on 5.0

1. It depends on what have you told them while scolding. if you have told her father some thing very unbecoming of a son in law, the the may consider it as domestic violence. The Court will decide on this matter. Scolding father in law by son in law for whatsoever reason may not be considered as normal behavior by the Court. However, the degree of scolding will determine whether it will be treated as insult amount to mental torture and DV or just rough conversation,

2. No. No arrest will be made against filing of DV case,

3. You shall have to contest the case fittingly in the Court countering all the charges brought by your wife by engaging a lawyer having expertise in this field,

4. Your father or none of the other persons who have been accused in the said DV case will face any problem unless the accusation against them are proved and they are punished by the Court. till then the are safe.
Krishna Kishore Ganguly
Advocate, Kolkata
14155 Answers
315 Consultations

5.0 on 5.0

1. Scolding the father-in-law is not an act of domestic violence as FIL cannot maintain a DV case against his son-in-law.

2. Asking wife to learn cooking is also not an instance of domestic violence unless she has been harassed for her inability to cook.

3. The onus to prove the acts of domestic violence is on the wife. You can contest the case fittingly on merits as you seem to have a good defence.

4. In DV cases unless the order of court is breached there can be no arrest, 

5. Unless there is a warrant issued against your father by the court in DV case his job will be safe.
Ashish Davessar
Advocate, Jaipur
20072 Answers
531 Consultations

5.0 on 5.0

1) you  can cross examine your FIL/ wife  in DV case regarding allegations made in complaint 

2) if  your wife has said you never scolded her nor ever assaulted her then it would weaken wife case 

3)court will pass protection order in favour of wife . no punishment would be imposed on you 

4) court will direct payment of interim maintenance from date of filing of application 

5) only your income is considered not family income 

6) working wife would not be entitled to maintenance . gather evidence of wife past work experience 
Ajay Sethi
Advocate, Mumbai
29799 Answers
1619 Consultations

5.0 on 5.0

1. The police will be directed by the court to submit their enquiry report and the merit of your case will come to light.
2. Since you have not physically assaulted too wife  outburst once on your FIL and your telling wife to cook and her admitting the same will not be considered an act of DV in court provided she doesn't change her statement in court now. 
3.The issue of interim maintenance will be decided by court based on your wife's income and other factors like her ability to earn etc. There are judicial pronouncements that FIL of wife may have to bear expenses if husband in not earning. 
Sushil Jha
Advocate, Patna
198 Answers
2 Consultations

5.0 on 5.0

1. No. It is a DV case and not FIR to enable the police to investigate and submit report or charge sheet. It is only the Court before whom your advocate shall have to explain the reason in your defense,

2.As I have explained in my earlier post, the decision to consider your conversation with your father in law will be considered as Domestic Violence against your wife by insulting her father, will be taken by the Court. You shall have the liberty to tell the Court that you do not consider it as DV at all giving logic in support of your claim. You are having wrong idea that beating wife only is considered as DV. Even insult to a wife directly or by doing so through her family members are also considered as DV,

3.   The punishment will depend on the quantum of offence proved to have committed. Defend yourself by contesting the allegation fittingly without thinking about punishment,

4. You are bound to maintain your family even by begging and borrowing as opined by our Apex Court. The amount will be decided by the Court which normally is fixed at anything in between 1/5th to 1.3rd of net monthly earning of the husband. Interim maintenance, if allowed, is to be settled first. Your father's or sisters income is irrelevant in your case. Highly educated wife who is capable of earning and maintain her self is not entitled to maintenance from her husband.     
Krishna Kishore Ganguly
Advocate, Kolkata
14155 Answers
315 Consultations

5.0 on 5.0

1. There will be an IO to investigate the case after FIR is registered,

2, Scolding FIL does not fall within the sweep of domestic violence by any stretch of the imagination.

3. There is no imprisonment under DV act unless the protection order is violated.
Ashish Davessar
Advocate, Jaipur
20072 Answers
531 Consultations

5.0 on 5.0

there is no provision for arrest in DV act. and after the judgment of arnesh kumar vs state of Bihar 2014 police cannot make arrest in offence punishable under 498 A. so you cannot be arrested in matrimonial dispute case. 

you should take a protection order in reference of your parents because they can make false cases under different section of IPC. 
Shivendra Pratap Singh
Advocate, Lucknow
3518 Answers
53 Consultations

4.9 on 5.0

you are liable to pay interim maintenance however you have not been working but you can keep lower down the amount of maintenance by adducing facts regarding your expenses and liabilities. if you can prove before the court that your wife is real culprit of this issue then court may refuse to order interim maintenance because your marriage is not lasting more than 1 year. court can tale lineant view to settle this issue because your wife left her matrimonial home in less than 2 months of marriage.
Shivendra Pratap Singh
Advocate, Lucknow
3518 Answers
53 Consultations

4.9 on 5.0

1) your  sister can take the job abroad 

2) personal presence not necessary in DV cases if you are represented by lawyer 
Ajay Sethi
Advocate, Mumbai
29799 Answers
1619 Consultations

5.0 on 5.0

Yes, she can travel. There is no difficulty in travelling abroad due to these cases.
Devajyoti Barman
Advocate, Kolkata
7710 Answers
93 Consultations

4.9 on 5.0

1. Your wife has filed the DV case.

2. There is no order passed by the Court against your sister restraining her going abroad.

3. She is at liberty to go anywhere legally and do whatever she feels like doing legally unless she has been restrained by a Court order in doing so.
Krishna Kishore Ganguly
Advocate, Kolkata
14155 Answers
315 Consultations

5.0 on 5.0

1) second complaint does cast doubt about its genuine ness since first complaint did not contain any such details of alleged physical and mental torture 

2) wife has to prove allegations in court 

3) girl can file dowry harassment case on husband even if girl is not financiually well off 

4) no need to pay Rs 15 lakhs 

5) obtain copy of complaint through RTI 
Ajay Sethi
Advocate, Mumbai
29799 Answers
1619 Consultations

5.0 on 5.0

1.You have never mentioned "my wife has filed a 498A case" before. You have mentioned that she has filed a DV case. DV case and 498A complaint/case are different matters. The fresh complaint may be registered by the police as FIR u/s 498A of IPC and in that case, you shall come to know from the police to arrange to take anticipatory bail for all the accused. If your wife changes/modifies her complaint, it will go in your favour and you should collect the copy of her 1st complaint to prove your point later on.

2. You can file a criminal case against your wife for lodging false complaint against you u/s 211 of IPC. It will also help you in getting divorce since lodging false complaint is also considered as a form of cruelty.

3. She shall have to prove her allegation before the Court which you shall have to negate with evidence.

4. You shall have to take AB if any FIR is filed against you. After that enagage a lawyer having expertise in dealing with matrimonial matters to contest the case by countering all the allegations leveled against you by submitting evidence.

5. No. There is no such rule that girl coming from financially weaker back ground married to a richer husband can not file a dowry harassment case/complaint u/s 498A of IPC.

6. It is a game of nerve. Do not succumb to the pressure of the girl. Refuse to pay any amount to her and contest the case fittingly before the Court. She will approach you for settlement with lesser demand.

7. You can ask for the said copy through RTI route or also can manage to get its photocopy by managing the IO concerned. Develop a rapport with the IO in your own interest.
Krishna Kishore Ganguly
Advocate, Kolkata
14155 Answers
315 Consultations

5.0 on 5.0

1) 498A is non bailable offence . 

2) suprem court has restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.
Citing very low conviction rate in such cases, it directed the state governments to instruct police "not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code".

3)  if police arrested the accused, the magistrate should weigh the preliminary evidence against the Section 41 checklist before allowing further detention.
"The magistrate, while authorising detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction, the magistrate will authorize detention,

4) it is better you obtain AB from sessions court . police cannot arrange bail at station it self 
Ajay Sethi
Advocate, Mumbai
29799 Answers
1619 Consultations

5.0 on 5.0

Since 498A case is non -bailable Police can not arrange bail in police station.
You will have to apply for the same in the court only.
Devajyoti Barman
Advocate, Kolkata
7710 Answers
93 Consultations

4.9 on 5.0

1.  Police can not give bail from police station since section 498A is non bailable.

2. Bail or anticipatory bail shall against FIR filed u/s 498A of IPC have to be taken from the appropriate Court and not from the police station.

3. It may be that no FIR u/s 498A has been filed and police is misinforming and scarring you for squeezing out some money from you.

4. See the FIR copy in your own eyes and if there is a FIR filed u/s498A of IPC, avail AB from the Court immediately.

5. Engage a local lawyer having expertise in this field. 
Krishna Kishore Ganguly
Advocate, Kolkata
14155 Answers
315 Consultations

5.0 on 5.0

She is at liberty to go out of country if there is no embargo placed on her right by the court,
Ashish Davessar
Advocate, Jaipur
20072 Answers
531 Consultations

5.0 on 5.0

1.A fresh complaint to supplement the facts narrate in the original complaint can be filed, but it cannot materially alter the original complaint.

2. If and when the FIR gets registered then apply for anticipatory bail and thereafter contest the case on merits.

3. You have the right to have a copy of FIR,
Ashish Davessar
Advocate, Jaipur
20072 Answers
531 Consultations

5.0 on 5.0

Do not fall into the trap of cops. Apply for and obtain AB if and when the FIR is filed.
Ashish Davessar
Advocate, Jaipur
20072 Answers
531 Consultations

5.0 on 5.0

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