Matrimonial disputes often gets complicated and the disputes between husband and wife often gets complicated with time.
The best possible way to solve the matrimonial issues is through the way of mediation and settlement.
But How to mediate and settle the matrimonial cases?
The best way to mediate and settle and matrimonial cases is to first understand…
The husband side should understand that the wife is entitled to maintenance and alimony if she is not working and has a child.
You must understand whatever your income and assets are you have to calculate a good compensation plan for the wife which should be ideally 1/3 of your 10 year income, which will be acceptable to the wife. You see if you do not agree to this the court can award this amount to wife for a lifetime before it happens it is better to settle for a reasonable amount rather than paying a hefty amount later on.
The wife must understand that she should demand the amount as per the above formula or else she would risk long litigation and harrasment.
This is the win win formula for the couples to amicably solve the disputes.
How to mediate?
The mediation process is inexpensive and is availaible in all courts. You must use it frequently to resolve disputes.
The mediation platform is not to spill dirt to each other or allege each other. it is a way to settle dipute. In husband and wife disputes the amount of compensation is to be negotiated and not to be used as fault or fact finding ground.
People don’t know this way that’s why disputes are not settled.
Ig Son and daughter in law are staying together in same house and you got to know that your daughter in law might file a false 498a.
You got terrified because now you are mother and father who are in their early old age and want to save yourself from the harrasment.
But, you also have son you also wish that you can save him also. You consult various lawyers and many advise you to dis own your son and daughter in law and publish in newspaper.
But how it will help you?
The Answer to this question lies in pure logic…
Suppose your son and daughter in law are staying in the same accomodation and all of a sudden you have decided to disoen them due to harrasment and they started residing in some other place.
You have published this in the newspaper which acts like a public notice.
But what if wife files case and all of you are implicated in afalse 498a dowry case?
The period in which you all stayed together will be part of her complaint and you cannot cite that you have disowned your son and daughter in law for a simple reason that the publication is after the date of false incidents. which will not help you a tall and rather it can act against you and it will show that you have cover-up the entire situation.
Further this disowning can create future problem of son in inheriting your property..
The important aspect of 125 CrPC is to prove that the wife has left the matrimonial home without any reason.
How to prove this…
The best way to prove this is to havea Judicial finding on the above mentioned aspect.
As soon as wife leave the matrimonial home you have to file RCR first. Contest this case on merits and obtain a decree and there surely be a finding by the court that the wife has left the matrimonial home without any reason.
If the finding is in your favor then you can use in 125 interim maintenance proceedings or in 125 case to dismiss this case.
As held in Balram Dash Vs. Gitanjali Dash of Hon’ble Orissa High Court the court has denied the maintenance given to wife on the ground that since wife has not joined the husband despite the RCR decree she is not entitled for maintenance as she has left the husband without any reasonable cause.
However,the larger question is still under consideration by Hon’ble Supreme court but. Till now you can use
अगर IO मेरे मामले की जांच ठीक से नहीं कर रहा है तो मैं क्या कर सकता हूं?
What is Free and Fair investigation?
The concept of free and fair investigation is very wide. It depends on various aspects. It has different meaning for complainant and a different meaning for accused.
Ground for Free Investigation in case of complainant
1. Delay in Filing Chargesheet
Even after months of registration of FIR there is no chargesheet in the case and IO. is not even transparent with respect to the status of the investigation in the case, the delay in filing chargesheet is a ground to question the investigation.
For this the matter is first reported to the senior officer and than it can be reported to High Court.
2. No investigation
Even after months of registration of FIR there is no Investigation in the case and IO. is not even transparent with respect to the status of the investigation in the case, the delay in investigation is ground to question the conduct of police.
For this the matter is first reported to the senior officer and than it can be reported to High Court.
3.Accused influencing witnesses
The accused person can influence or in legal language we can say that the accused person can won over the witnesses. Which were giving statement in favor of complainant. The delay in investigation can also result in this. The delay in investigation is one ground and this is the result of the delay. Therefore after registration of FIR recording of witness statements on immediate basis is an important part and if this is breached party can approach High Court.
4. Biased Investigation
Biased investigation is one of the deficiency in investigation, wherein the IO says to the complaiunant openly that the case has no merits and they will close the case without investigation. It will seem that the IO is biased in investigating the case and concluded the case without any logical investigation which is a ground for questioning the investigation in the court of law.
Ground for Free Investigation in case of Accused.
1. Delay in Filing Charge sheet
The delay in filing charge sheet is the ground to question the investigation which acts as a ground for complainant and accuses. The right of speedy trial is available in favor of accused. As accused will be on Bail or in Jail it affects the right to life and liberty of the accused also and he can demand speedy investigation and trial.
2. No 41 A compliance
The compliance of 41 A is mandatory in case the IO wants to arrest accused in some offences. IO miss this important part which can be challenged by the accused.
3. Threat of Arrest
Io is threatening the accused every time the accused talks to IO or IO talks to accused. the IO. may be looking for illegal gratification in such cases and this acts of IO. can be complained to higher authorities, ACB etc
Whenever a false case is filed against the husband and his family members. All the family members and the husband suffer for many Years in litigating in courts which only brings harrasment to the husband and the family members.
What is the solution after getting Acquittal or discharge in false 498a case?
If the case ends up in either discharge or acquittal in false 498a. What the husband family can do against wife/complainant this comes into mind in every harassed family.
Here comes two sections of the IPC to help you, one is IPC 182 and 211 IPC.
Sec. 182 prescribes a punishment for six months and fine in case any person gives false information to a public servant, on the basis of which the public servant takes certain action which he might not have taken if he had known the true state of facts. On the other hand, u/s 211, there is an ono use of the term ‘public servant’. As per this provision, any person who institutes or causes to be instituted any criminal proceedings against a person to cause him injury, knowing that the complaint and allegations are false, is liable to face imprisonment for a period which may extend to two years. Further, if the charge alleged discloses an offence which is punishable by death, or a minimum imprisonment for seven years, is punishable with imprisonment for a maximum period of 7 years.
Procedure for initiating Criminal Action?
In the cases of 182 IPC in which the false information is given to police. Then in that case that police office can write a complaint and forward it to concerned senior officer. Who than forward a formal complaint to the court which than initiate proceedings under 182 IPC
In the cases of 211 wherein the case is already pending against the accused person in court. Than in that case the court in which trial was running A application under section 340 CrPC is filed and then court initiates further action under 211 IPC.
Conclusion
Initiating proceedings under 211 IPC and 182 IPC will put pressure on the other side and will help in fighting and solving matrimonial issues by way of informal settlement.
Some of you may be having a misconception that wife cannot file false 498a after 7 years of marriage, but the answer of this question lies in the laws itself, today this misconception will be removed.
Lets read first section 304 B
the ingredients of 304 B are attracted before 7 years of marraige, if there is demand of dowry.
498a talks about dowry demand only not dowry death, so the misconception comes from 304 B.
What about 498a, when it cannot be filed?
The answer to this question lies in section 468 and 472 CrPC. Section 468
Therefore three years is the time period to file 498a.
But I have seen cases which are filed above 3 years time period, What about those cases?
The time period of 3 years is the period start from date of offence date.
But 498a is a matrimonial offence and is continuing offence as declared by Hon’ble Supreme court.
Example of 498a filed after 3 years
if suppose in a FIR there is allegations in years 2011, 2012,2014 and 2018. The offence will get fresh lease of limitation from 2018 onwards, i.e 498a can be filed 3 years from 2018, therefore by virtue of 472 CrPC the limitation is extended
Higher Courts should not stay an order of maintenance unless there are very special reasons, the Supreme Court has observed.
In this case, a wife and minor child filed a petition under Section 125 of the Criminal Procedure Code before Family Court. An ex parte order was passed by the Family Court granting maintenance @ Rs.20, 000. The husband preferred application for setting aside the ex parte order which was dismissed. Later, the High court, in a criminal revision petition filed by him, stayed the order, without assigning any reasons.
In appeal filed by the wife, the bench comprising Justice Deepak Gupta and Justice Aniruddha Bose disapproved this approach of the High court and said:
We are constrained to observe that this order shows total non-application of mind on the part of the High court. This was a case where maintenance had been granted to a wife and to a minor son. The High Court without recording any reason whatsoever, has stayed the grant of maintenance both to the wife and to the minor son. This should not be done. A husband/father is duty bound to maintain his wife and child. Unless there are very special reasons, the higher Court should not normally stay such an order. In the present case no reason has been mentioned justifying the grant of the stay order.
The court then aside the order and directed the husband to pay the amount of maintenance as awarded by the Family Court. The High Court was directed to afford hearing to the parties and pass an appropriate reasoned order.
Delhi High Court: A Bench of Jyoti Singh and G.S. Sistani, JJ. dismissed an appeal filed against the order of the family court rejecting the appellant-wife’s application for grant of maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1951.
The parties married to each-other in June 2012 and had been living separately since September of that year. The wife was living in Gurgaon and the husband was in Singapore. The husband sought a decree of nullity of marriage under Section 12(1)(a) and (c), pending which the wife filed the application under Section 24 claiming pendente lite maintenance of Rs 2.50 lakhs per month along with litigation expenses. The same was rejected by the family court. Aggrieved thereby, the wife filed the present appeal.
The High Court noted that the wife was well educated and earning a monthly salary of around Rs 1.25 lakhs. On the other hand, the husband was also at a senior position in a reputed company in Singapore and was earning about Rs 13 lakhs per month. Noting all the facts and discussing the law on the subject, the Court was of the view that the impugned order does not need interference. Observing that the cost of living as per the standards of the country where the husband is employed is to be considered, the Court stated,
“We cannot agree with the contention of the appellant that merely because the respondent is earning in ‘dollars’ she is entitled to the maintenance claimed by converting his salary in dollars into Indian rupees. We agree with the respondent that his expenditure being in dollars, the salary being in dollars is a fact which cannot be overemphasized.”
Being satisfied that wife’s earnings were sufficient to maintain herself, it was stated, “The provisions of this section (Section 24) are not meant to equalize the income of the wife with that of the husband but are only to see that when divorce or other matrimonial proceedings are filed, either of the party should not suffer because of paucity of source of income and the maintenance is then granted to tie over the litigation expenses and to provide a comfortable life to the spouse. Where, however, both the spouses are earning and have a good salary, merely because there is some salary difference cannot be a reason for seeing maintenance.”
As per the law husband is
bound to maintain his wife even after the divorce and husband have no
maintenance to his wife by deceiving court by not showing true facts and exact
source of income. But rights of female are decided by law and no one can
exploit rights of the female so after getting divorce from husband in section
13 of Hindu Marriage Act,1955 and under section 125 of Cr.Pc 1973 a women &
children is maintainable by her husband and husband is bound to pay the
maintenance amount. The amount of maintenance must be enough for the women and
her children including education expenses of the child and medical also. So
here you can find few remedies which help to female enhance their amount of
maintenance as per the income of their husband. There are also landmark
judgements also in favour of the women which decided by apex court. Apex Court
also give judgement that a male cannot deny to maintain her wife due to
financial crisis if the male is fit in health and able to do work.
Referred Case:-Bhuwan Mohan Singh VS. Meena, VI (2014) SLT349 =II (2014) DMC 721(SC)=III (2014) CCR 394 (SC)= (2015) 6SCC 353.
Burden Of Proof
When a women going to file petition against her husband to enhance her maintenance amount because she know exact income of her husband. A female must be show the salary slips, website listing of her husband work and absolute details of her husband income without giving exact and relevant proof a women cannot liable for the enhancement of the maintenance. Not showing true facts is the abuse the process of court.
TRUE FACTS
The facts which are present in
the court through wife against her husband are must be true in nature.
EXAMPLE
A is husband of B and the
decree of the divorce is granted to A & B and the monthly maintenance is
fixed Rs.5,000/- pm including medical and education expenses of C. C is the
baby boy of the A & B. After trial court decision B aware about that A
hiding true facts about his income for not paying appropriate amount of
maintenance to B & C. B start collecting proof related to A’s income and
finally her proofs are proved in the court and her maintenance enhanced from
Rs.5,000/- to 20,000/- pm.
Conclusion
When a matrimonial dispute
arise a male always wanted that he did not give a single penny to wife for
maintenance so they do different kinds of tactics to mislead the court. But as
per the law husband is bound to pay the maintenance to his wife and children
but due to some hiding facts and not showing proper income husband take
advantage to pay very less maintenance to his wife according to his income. But
now there are remedies also available for the women she can apply for the
enhancement of the maintenance amount if she is proved right in the eyes of law
by showing true and exact facts of the husband income. After the decision of
the trial court a women can move to the High Court to revise the previous order
which is decided by the Trial Court. There are also some cases also which is decided
in favour of the women and their maintenance is enhanced as per income of the
husband.
CASES REFERRED
* Delhi High Court II (2019)
DMC 767 (Del.) Manju Sharma vs Vipin
* Punjab and Haryana High
Court II (2019) DMC 729 (P&H) Bharti Sharma vs Deepak Sharma
These days people are stuck in under construction properties offered by the builder.
You had invested in the project offered by the builder assuming the value will get appreciated or you would be getting timely possession of the property. But neither things happened.
The only option now is go to court but which court?
There are 3 courts as of now to help you out with this issue
A. Consumer Forum
B. NCLT
C. RERA
You can approach all three as per the Hon’ble Supreme Court judgement
But here is Deep Analysis
Consumer Forum
Here I would discuss the approach to NCDRC here either you can approach as a single consumer having a claim of 1 Cr+ now act is amended but not notified the value of claim will go to 10 Cr once the act is notified.
You can file 12(1)(C) petition irrespective of claim value. It is a complaint by a group of people.
Time period is 2 to 3 years but relief is 99% guaranteed in approaching this forum. Procedure is simple and as of now even refund +14% interest is given.
Execution of order is fast as builder appeal to Supreme Court are mostly rejected.
CASE STUDY BPTP TERRA PROJECT GURGAON
Adv Nitish Banka at NCDRC
This client has filed the case in the Year 2017 and had invested an amount of 1 Cr+ So his case was eligible directly to be filed at NCDRC. The case was strongly represented by the consumer and therefore at the final stages of the case the Opposite part offered to refund the money with interest.
The final settlement was Refund of money with interest @ 10% PA and the settlement was duly recorded by the Court, so that if there is a breach the consumer can again approach court by preferring execution petition.
Case -2
CASE STUDY RAMAPRASTHA BUILDER
The case was filed for refund of hard earned money of 8 buyers and the consumer forum passed an order of refund of the money with an interest of 14% Pa. See order
The case was filed for refund of hard earned money of 8 buyers and the consumer forum passed an order of refund of the money with an interest of 14% Pa.
The builder failed to offer refund therefore we had to go for execution of the order and filed execution proceedings in NCDRC. The OP. committed to refund the amount with interest see order below..
2. NCLT
The Approach to NCLT is like a Atom Bomb of legal procedure. Here the NCLT can declare moratorium if you succeed and builder will lose it company.
NCLT is effective only if your reach Settlement before Moratorium. Most cases are settled out of court.
But approaching NCLT is expensive but really fast.
But NCLT will be forum of future as NCDRC claim value to go up to Rs. 10 Crore.
3. RERA
As of now RERA is not that effective as it was speculated with many forums of appeal and many Authorities have no tribunal functioning the procedure is slow and execution is unpredictable.
What is the Interest Rate Ordered the Courts?
If the matter is settled before final Judgement the 8-10% is the nominal interest paid by the builder to the buyer as interest rate.
In NCDRC 12-14% is ordered by the court in case the matter is finally decided incase of delay.
In NCLT since settlement is the best option for buyer the interest rate ranges from 8-10%
In rera 10% interest rate is normally ordered.
How much time will it take to get the money back?
NCDRC-In NCDRC average time ranges between 1.5-2.5 Years. As NCDRC is the last forum overall time will be less.
NCLT-The time ranges between 6-1 Year if case is settled.
RERA it takes 6-8 Month to Rera to decide the matter remember rera also has appellate tribunal.
Conclusion
NCLT or NCDRC are the best forum as of now people have got back their money with interest by these forums.
