What evidence do I require to get divorce on grounds of Cruelty in India?

Evidence is the key to get success in divorce cases, but the real question is what sort of evidence is required to get divorce?

While researching on many judgements, I have devised a best strategy to get divorce.

The incidences to which more independent witnesses are party to it are more likely to get succeed in a divorce case. The incidences like- wife insulting in front of Panchayat, friends and relatives has more credibility and chance of getting divorce gets increased.

See V.V. prabhakaran V. T. Chandramathi

Letters and watsapp messages will help in proving mental cruelty element and are often used in most successful cases.

So, if you are saying that your friends and relatives cannot come to court to testify you will most likely fail.

What if wife filed a false dowry and 498a cases

The mere pendency of the case is not an excuse to get divorce. The statement if you make regarding the 498a case has caused you immense mental trauma and mental cruelty will not get you divorce. Even if your entire family gets implicated that is no way you will be getting divorce.

Ranjeet Kumar Singh Vs. Kalyani Devi

The learned family court has discussed each of these allegations at length in the light of the evidence on record and its findings do not suffer from any misappreciation of evidence or perversity. Conversion of a TDA/ Fixed Deposit in the name of the only daughter born out of the wedlock by the respondent could not be an instance of mental cruelty. The matrimonial suit was instituted after three years of the institution of the Itkhori PS Case No. 160 of 2008 on allegations of demand of dowry and cruelty in marriage. During the pendency of this appeal, the appellant has been convicted of the said charge. As such, the allegations of cruelty have been made against the petitioner rather than the respondent. The acquittal of the appellant in a case under Section 494 of the Indian Penal Code for want of evidence can alone not lend support to the petitioner’s allegations of cruelty in marriage in such circumstances. It is common experience that evidence of solemnization of a second marriage is difficult to be brought by the complaining spouse. As such, on an analysis of the entire material evidence on record and the pleadings of the parties, we do not find any such error of law or on facts, which deserves to be disturbed.

But, if you get an acquittal along with other circumstances as mentioned above then it creates a case for divorce. See Judgement of V.V. prabhakaran V. T. Chandramathi

What if you say that wife is not living with you for 2 years and you seek ground divorce on the ground of desertion that there is no justifiable reason to live separately seeHirajbai Vs. Kanchan Ben in which wife has stated that husband has not tried even once to reconcile and did not supported her and daughter financially and husband is also leading adulterous life. The divorce was denied in this case.

By. Adv. Nitish Banka

9891549997

What if I lose my job after the lock down will I be paying my wife maintenance?

This time is the worst of economic times the world is facing and the world will be going to face recesssion after the economy is free from the lockdown.

A lot of husband will be losing jobs and since maintenance orders are in place and they are obligated to pay to the husband.

Getting unemployed and being jobless is an excuse to not to give the maintainance?

Once the order under section 125 CrPC is passed and is not challenged it can be modified under section 127 CrPC.

Since there are very extraordinary times we can see if courts can get sensitive towards the issue that Husband who becomes unemployed or losses his job after lock down and recession.

In the past courts were not very sensitive towards this issues and did not give any relief or very small relief in case husband files an application under section 127CrPC

Since husband is healthy and able bodied he cannot be relieved from the legal obligation to maintain wife.

In Another case

T. Kausalya vs T. Narayana Reddy And Anr. on 16 September, 1997Equivalent citations: 1997 (6) ALD 537, 1997 (2) ALD Cri 740, 1998 (1) ALT Cri 254, 1998 CriLJ 1795

that is, his retirement from service and getting a monthly pension of Rs. 3,000/- only, what is a just and reasonable amount that has to be ordered to be paid towards the maintenance of his wife ? As seen from the impugned order the learned Judge reduced the maintenance from Rs. 500/- to Rs. 100/- per month. But considering the facts and circumstances in this case it is a very meagre amount and as such the same is liable to be set aside. I am of the opinion that it will meet the ends of justice if the husband is directed to pay maintenance at the rate of Rs. 250/- per month instead of at the old rate of Rs. 500/- per month and also if it is ordered to come into effect from 16-2-1996 i.e. the date of the order passed in M.C. No. 7 of 1996.

But now since the times are extraordinary the courts must become sensitive towards the issue of money losing its value, unemployment and recession in assessing and modifying maintenance orders.

How Divorce when you have no evidence?

Story of section 13(1-A) HMA

Gene really most of the divorce cases are filed under section 13(i-a or b) i.e desertion and cruelty.

The evidence of both cruelty and desertion are difficult to prove under the wake of false Dowry and Domestic Violence case and for many years couple do fight these cases but no fruitful results comes out under the wake of no sufficient evidence to get divorce a couple can produce only one or two incidences which are not sufficient. As evidence must be such that it becomes difficult for the spouse to cohabit together.

Now another way is to seek divorce under Section 13(1-A) of the HMA

Now the requirements under section 13(1-A) of the HMA, the spouse has to first seek a decree of either judicial separation or RCR and then after the decree is granted and even after 1 year the cohabitation does not resume then it is a ground for seeking divorce. No other evidence is required, therefore makes divorce easy. An additional aquittal in 498a case and 406 IPC will also help. See the case below.

Smt. Usha vs Mahesh Kumar on 18 June, 2018

The wife-appellant as per her own admission is living separately since 1991. Though, she lodged a criminal case u/s 498-A and Section 307 of the IPC alleging cruelty in marriage and attempt to cause murder against the husband, the same ended up in acquittal of the husband. This was also affirmed in appeal by the High Court of Madhya Pradesh. As such, no reasonable cause can be made out on the part of the appellant to leave the matrimonial home and stay away since 1991. On the contrary, the efforts for restitution of conjugal rights on the part of the respondent-husband have failed despite a decree of restitution of conjugal rights in his favour. The instant suit has been instituted only on the ground available u/s 13(1-A) (ii) of the Hindu Marriage Act, 1955. No grounds of fault are alleged or required to be established in such a matter on the part of the aggrieved spouse. Once the ingredient of Section 13(1-A) (ii) of the Act of 1955 has been established by evidence on record showing failure of the appellant wife to join the society of the husband and cohabit with him, the respondent husband had all the reasons to seek dissolution of marriage under the aforesaid provisions. The learned court has appreciated the evidence on record in a proper manner which does not suffer from any perversity. 

Section 91 CrPC, How to use in Maintenance 125 CrPC case…How to find wife is working and what her salary?

Generally, there is a tendency that Husband or Wife hides the information about each other salary and it becomes difficult to prove salary of wife or Husband and therefore correct maintenance amount is not assessed

CrPC 91 is the tool along with the RTI act to get all the documents, Under RTI act it is difficult to get documents rather it is easier to get the documents U/s. 91 CrPC.

Now if wife know where her husband is working or husband knows wife place of work as well as her PAN Number if she files ITR, then it will be easier to get proof of income.

Other than income documents other documents like conciliation statements or complaints can be accesed with the help of the 91CrPC if wife is not disclosing the same as same can be used for contridiction. like happened in the case below

Mrs. Divya G. Fernandes vs Mr. Lancelot Albert Monterio on 13 February, 2013

Section 91 of Cr.P.C. reads as under :Summons to produce document or other thing. (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers’ Books Evidence Act, 1891 (13 of 1891 ) or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

Bare perusal of the aforesaid provision makes it crystal clear that whenever the Court considers for production of document is necessary and desirable for the purpose of any trial, the Court may issue direction for its production before the Court in trial.

Taking into consideration that the application under Section 125 of Cr.P.C. filed by the respondent allegation of cruelty has been made. The application filed before Mahila Thana-Padav, statement of petitioner and respondent and conciliation proceedings appears to be relevant for the inquiry under Section 125 of Cr.P.C. Learned Family Court ought to have allowed the prayer of summoning the aforesaid document.

Next is another peculiar case is section 91 can be used for recovery of stridhan in 125 CrPC

The answer is NO as section 91 is used for production of documents or other thing, production of stridhan is another thing but production of stridhan is not necessary in deciding the 125 CrPC.

Shailendrabhai Motilal Mehta vs Krishnaben Vrajlal Mehta on 26 September, 2000

In the case before me, as stated earlier, no summons was issued u/s. 91 Cr.P.C. nor it was intended to be issued, nor it could be issued because for disposing of an application u/s. 125 Cr.P.C. search warrant was hardly required to be issued inasmuch as Stridhan property of the respondent No.1 was not at all necessary for disposal of such application u/s. 125 Cr.P.C

Section 91 allows only essential documents to be produced for determination of the questions and facts.

R.Meenakshi Sundaram vs T.V.Mylsamy on 28 June, 2007

If upon satisfying itself that the document has no bearing, the trial Court is well within its powers to decline the prayer and the same can be deemed that it has exercised its discretion judiciously. It is also held that while exercising this power, the trial Court should not indulge in fishing or roving enquiry

Is under RTI act, wife is entitled to get the salary of the husband

The Answer is YES and in (Smt. Sunita Jain vs. Bharat Sanchar Nigam Limited and others)

It was held that- While dealing with the Section 8(1)(j) of the Act, we cannot lose sight of the fact that the appellant and the respondent No.1 are husband and wife and as a wife she is entitled to know what remuneration the respondent No.1 is getting.

Sometimes the trial court rejects 91 Cr PC application but same can be challanged in High Court and appropriate orders can be taken.

Mrs. Divya G. Fernandes vs Mr. Lancelot Albert Monterio on 13 February, 2013

The petitioner filed application under Section 91 of Cr.P.C. seeking a direction to the respondent to produce the documents, such as the Bank Statements, Income-tax returns, Account Ledgers, etc. to establish the annual income of the respondent during the period when she was living with him and for the subsequent period, for the purpose of proper decision on the question of quantum of maintenance. The said application was opposed by the respondent. During the hearing of the said application, the respondent produced copes of few income-tax returns and bank statements. However, the learned Magistrate rejected the said application. Aggrieved by the said order, the petitioner filed Criminal Petition No.4405/2012. When the said petition was pending before this Court, the petitioner filed another application under Section 91 of Cr.P.C seeking summoning of the documents mentioned in the earlier application from the income-tax authorities as well as the bank authorities. The learned Magistrate after hearing both sides rejected the said application by the order impugned in this petition. Aggrieved by the said order, the petitioner has presented Criminal Petition No.460/2013.
4) During the course of the argument before this Court, learned counsel for the respondent submitted that respondent has no serious objections to summon the documents as sought in the application filed, which is the subject matter of Criminal Petition No.460/2013. 5) As held by the Apex Court in the case of Chaturbhuj Vs. Sita Bai [(2008) 1 SCC (Crl.) 356] in a
proceeding under Section 125 of Cr.P.C., the burden in the first place is on the wife to show the means of her husband are sufficient. Therefore, the burden is on the petitioner wife to establish the financial condition of the respondent- husband for the Court to come to the just conclusion while determining the question as to the quantum of maintenance. In order to discharge the said burden, the petitioner filed an application seeking summoning of the documents from the authority. However, the learned Magistrate without considering the question as to whether the documents sought to be summoned are just and necessary for the proper decision in the matter, has rejected the said prayer on the ground that the respondent has already produced some of the documents.
6) Having regard to the facts and circumstances of the case and in the light of the submission made by the learned counsel for the respondent, I am of the considered opinion that the order impugned in this petition is liable to be set aside and the application filed by the petitioner for summoning the documents requires to be allowed.

Section 340 after production of documents

How to prosecute Wife for giving false evidence in court?(340 Crpc)

Section 340 Crpc deals with the procedure adopted by the court to punish those person who leads false evidence on material facts.

In matrimonial cases generally it has been observed that wife gives false evidence to prosecute the husband and in cases such as 498a it is observed that wife generally use every means to harass the victims of 498a i.e the husband side.

So here are some of the successful cases which were initiated by husband side to prosecute their wives for giving false evidence in the court.

In 
Smt. Veena vs Jagdish Parshad 

In her testimony, recorded on 12.02.04, Veena testified that she was not working anywhere after her marriage. She was not working till that day anywhere from the date, when she was kicked out of her matrimonial home. She entered the witness box on 07.04.04 for her cross­ examination, wherein she testified that since after coming to her parental home, she was not doing any job. She was having one bank account in Co­operative Bank. She denied the suggestion that she worked with ­4­ Tirath Ram Charitable Hospital, Rajpur Road, Delhi. She further denied the suggestion that she was holding bank account No. 4277991 in Punjab National Bank. She was further cross­examined on 06.05.04, wherein she denied that she was earning sufficiently to maintain herself. When respondent was given an opportunity to rebut facts, he could bring it over the record that she worked with Tirath Ram Hospital from 01.06.01 till 10.06.02. It was further proved that she was maintaining a bank account at Punjab National Bank, wherein her salary from the said hospital was being encashed. When these facts came over record, respondent moved an application under section 340 of the Code before the Trial Court to get her prosecuted. Trial Court had not conducted an inquiry, as contemplated by section 340 of the Code, but recorded findings against the appellant, vide order dated 09.09.05 detailing therein that she committed an offence punishable under section 193 of the Penal Code.

At the conclusion of inquiry, the Court has to give finding after application of its mind that it is expedient in the interest of justice to file a complaint under section 195 of the Code and only thereafter complaint would be legal. Opinion or satisfaction contemplated under section 340 of the Code is objective and not subjective one and should be reflected in findings recorded or order passed by the Court. Section 340 of the Code specifically enjoins that Court “shall record findings to that effect”, which means that it is expedient in the interest of justice that inquiry should be made. Provision is not merely peremptory, but mandatory and it is a condition precedent for preferring a complaint before the Magistrate. The phrase that “it is expedient in the interest of justice that an enquiry should be made” is the keynote of the section to initiate an action. Law to this effect was laid in Arul Raj (1996 Cr.L.J. 2712) and Nimmayankula Audi Narayannya (AIR 1970 AP 119).

Advocate Nitish Banka

lexspeak.in

[email protected]

Best strategy to avoid arrest in False 498a

CAW complaint filed

Your wife files a CAW complaint in women Cell and police calls you to do counselling.

Sometimes fear is instilled in the mind of the Husband and family members due to the fear of FIR and arrest.

Now I will share with you the best strategy to avoid the same.

The concept of Notice Bail

The concept of Notice bail is not that new but very less professionals know and advice client.

Instead of living in fear of arrest in 498a and satisfying illegal demands of the police. It is better to take little protection from the police. This can be done through the notice bail.

Full Video on Notice Bail

Very few legal professional know about the concept. In case the fir is not filed then also bail can be granted it will be a protection a week or two after registration of FIR and before arrest.

Again after getting this protection then again the person can apply for the anticipatory bail in same court and this time proper hearing will take place.

Condition of anticipatory bail

Anticipatory Bail in 498a

Anticipatory bail in 498a is advisable and recommended

A family comes under pressure when they come to know that a FIR under section 498a has been lodged in police station.

The first cause of stress is call be Investigating Officer to join investigation to old parents, husband, husband sister or brother.

The trauma is whether they can be arrested or not.

It is not advisable to visit investigating officer without protection from the court this protection is termed as Anticipatory Bail.

The process of getting Anticipatory Bail in 498a

The chances of getting bail under 498a is quite high as I have already discussed in detail in one of my articles

chances of getting anticipatory bail 498a 

The conditions of anticipatory bail are not very stringent but if they are stringent it can always be challenged. I have discussed in detail the conditions Conditional Anticipatory Bail 498a/406

Now as per the judgement of 498a under Rajesh Sharma versus State of Uttar Pradesh. there is a stay on automatic arrest in the cases of 498a. But this judgement is challenge in higher bench and revisit the judgement.

Once the Fir U/s. 498a/406 is registered it is better option to take anticipatory bail in the offences as read in the FIR. I have already discussed the chances of anticipatory bail U/s. 498a and 406 in my previous article of chances of getting anticipatory bail in 498a But when you move for anticipatory bail in the court the court may impose certain conditions like depositing a demand draft of certain amount in the name of wife and the complainant as a part of maintenance. Now these conditions such are ultravires to the provisions of section 125 CrPC and these type of orders can be challenged in higher courts. When a specific provision is there for maintenance of wife and child such conditional anticipatory bail in 498a is against the law.

Supportive Judgments

  1. In Narinder Kaur V/s State(NCT of Delhi) 2007(141)DLT 761

Complainant father in law released on anticipatory bail and petitioner, mother in law granted bail on condition of depositing Rs. 50000 by way of demand draft in the name of complainant complainant husband already paid Rs. in addition to deposit of Rs.1.25 lakh and she is disinterested in receiving Rs, 50000/- Both parties earning well and in dispute in ither fora condition of petitioner to pay complainant Rs. 50000/- set aside.

How court can fix maximum maintenance against husband?

The court can fix maximum maintenance on Husband..

Factors in Various case

Gene really the tenancy of the husband is to conceal the amount of income account/sources are genereally concealed by the husband and it is very difficult for the wife to assess husband income and to bring direct evidence.

This problem increases when the husband is involved in family business or in partnership business.

Standard of Living Argument

The indirect evidence available to wife is generally the standard of living of husband. The house he lives, car he drives or the outing he does the proof of this is very easy and is even available on social media website. if direct proof is not available this can be used.

Next thing is if wife can have investments of husband in various mutual fund, insurance. whose statements generally comes by posts and she can easily lay hand.

Now if the husband in court conceal his income the only option for the wife is to counter him with all the abovementioned evidence. it is also desirable to appoint detective agency to find about life style and social status of the husband.

What will happen and what will be the solution to this issue

Suppose if you are concealing your income and wife on the other hand has all the proof of your social strata then the court will not have any hesitation with the wife petition and will award maximum maintenance as per the provisions of the law.

The answer to this strategically deal with petition of maintenance. it is important to disclose the income in consonance with the proof disclosed by the wife if she has one and thereafter show your liabilities and depending upon the income to ensure the impact of wife showing maintenance amount gets reduced.

The above mentioned things can be done by showing true picture along with financial statements, ITR and your bills.

How to solve Matrimonial issues between husband and wife?

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.

What if I disown my Son and daughter in law will it save me from false 498a case?

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..

Disowning can do more harm than good.

Watch this video.

How RCR can help you in dismissing 125 CrPC Maintenance Case?

crpc 125 maintenance denied judgements

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

Free and Fair Investigation Soul of Criminal Trial

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

From-:

Adv. Nitish Banka

9891549997