Many clients ask me this question? will the wife be allowed to enter the matrimonial home under domestic violence act?
Many old parents are scared that they would be evicted from their own house and court will allow the wife to reside with them or give the property of wife.
A lot of tension is created in such a scenario.
I have done some research and let us find out if this is true or not?
Now there are two scenarios.. One is the normal scenario the property where wife residing in matrimonial home is owned by in laws and not the husband….But husband is staying with his parents i.e inlaws and wife and wife alleges she was thrown out of the matrimonial house. She needs shelter and demanded residence rights and protection from in-laws.
The answer to this scenario lies in the fact since the property is owned by in-laws, she does not get a right to reside in shared household because husband does not have any right title interest in the property.
On the other hand husband is casted by a responsibility to provide alternate accommodation/rental which will be part of the maintenance
Thus, looking at the totality of the circumstances and the pleadings as well as the order X, CPC statements, it cannot be said that the learned single Judge was off the mark when he observed that there is no dispute that the suit property belongs to the defendant Nos. 2 and 3. Therefore, the first point of attack that the conclusion of the learned single Judge was founded on a wrong premise, falls to the ground. We must emphasise once again that the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property. But it can certainly not translate into a right to reside in a particular property. It is only in that property in which the husband has a right, title or interest that the wife can claim residence and that, too, if no commensurate alternative is provided by the husband
Shumita Didi Sandhu vs. Sanjay Singh Sandhu and Ors. (03.09.2012 – DELHC) : MANU/DE/4077/2012
Now take another scenario in which husband has a share in property or is not coming up for the proceedings. He was disowned and abandoned the complainant wife.
In that scenario wife can demand and be allowed shelter in the shared household that is the matrimonial home..
I have made compendium of judgements you can download fill the form…
Many clients come with a query that whether it is advisable to leave a job or join some small job. Will the court consider this and reduce the maintenance?
I will answer this question with my own experience and the recent Judgement of the Delhi High Court.
In my own case which is still running Gurugram court. The wife was earning and had a child. The husband resigned from the job and was earning around Rs. 120000/- the husband cited that he was fired from the organization.
I argued that he was working in this company for the last 6 years and in order to avoid maintenance he resigned voluntarily.
The court decided in my favor and Rs. 25000/- maintenance was awarded in the case. The court said that since the husband is able-bodied he can find a job at the same level.
Now in a recent case of Sandeep Walia Vs. Monika Uppal the husband said that she was working at NIIT and left the job for better prospects and due to the recession he is unable to find a new job. He showed his expenses as Rs. 32000/- and now working as a driver at his uncle’s place.
The plea of the petitioner that he does not have any means to pay is, therefore, rejected. He is a healthy able-bodied person and is in a
position to support his wife. He is under the legal obligation to support his wife and to pay maintenance under Section 125 of Cr.P.C. It is sacrosanct duty to render financial support and there is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds. The bald submission that the petitioner does not have any source of income is no ground to exonerate him from the liability of maintaining his wife under the facts of the present case. Even experience shows that actual income is normally not disclosed by the parties. Under such circumstances, it is always safe to come to a realistic conclusion considering the status of the parties and their lifestyle etc.
The court will fix maintenance as per the standard of living and lifestyle of the parties.
A DV case can be filed by the wife as per section 27 of the DV act
Here is section 27 of the DV act
(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which—
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.
(2) Any order made this Act shall be enforceable throughout India.
Now many wife these days misuse either temporary resides or cause of action has arisen
Now I explain with an example and later with the case law…
In one of my case wife alleged that when she was travelling at the airport to Delhi. She was harassed mentally by husband at the airport.
She filed complaint in Delhi as she claimed that the cause of action arose in Delhi.
The trial court dismissed her complaint as the cause of action is engineered one
To support this the latest Judgement of Bombay High Court
Afia Rasheed Khan vs. Mazharuddin ali khan and ors comes to rescue.
Here also wife claimed that she has been living in Hyderabad with in laws and forced to travel to Mumbai. Where she claims that she was harrassed by the in laws and survallence was put on her. her counsel claims cause of action.
Court Held :Thus, averments in application suggest, that Applicant is well educated person; she is financially sound; her parents are in business. In consideration of her background it is difficult to accept her contention or that she could not seek protection order at Hyderabad. In other words, application in no way suggest or implies that she was forced to leave the Hyderabad and or she was intending to reside in Mumbai. On the contrary the chronology of the events do suggest, that the Applicant engineered the cause of action with an intention to file case and confer jurisdiction
How to file defamation case on wife when she makes false allegations….
The case of defamation case must be filed after the case is over and you get a favorable order.
Any example of success of such cases?
Many clients do ask me to share case study related to successful defamation cases.
I would like to share one case of Karanataka High Court
where the wife was convicted for defamation
Facts of the Case
The husband has file RCR case against the wife and wife in her statement of objections alleges as under
“complainant does not know the name of his daughter. The said fact clearly proves as to what was the extent of relationship the complainant had with the first respondent and the girl child. It shows clearly that he has another relationship.”
“….the complainant being an addict of liquor was torturing the first respondent in the night asking her to dance naked since there would be no other person in the room and when she was not doing so, he was torturing her physically and mentally”. “The complainant developing the attitude of behaving at his own whims and fancies, was binging some persons who were unknown to her and insisting her to have physical relationship with them and to make money.” “since the first respondent refused to establish the illicit relationship with third persons and sell her character to third parties and earn money, the complainant assaulted her on several occasions and also attempted to kill their daughter by throttling her neck.
The court found out that definately such allegations are defamatory in nature.
But there are 9 exceptions to Section 499. One of the exception is that a statement which is made in good faith is exempted from being called as defamatory.
Section 52 IPC defines good faith.
The demand of section 52 is that the statement should be made with due care and caution.
The court has held
Admittedly, except making those statements in her statement of objections at Ex.P-4 and reiterating it in Ex.P-1, she has not even attempted to show that they were the imputation of truth or that they were made in good faith. Therefore it can be safely held that the complainant has proved beyond reasonable doubt that the accused has committed an offence of defamation.
In the recent case of Divorce. The High court granted divorce on the ground of the wife filing various frivolous petitions/complaint against the Husband.
The Wife has filed multiple complaints with different authorities and due to false complaints, Mental cruelty was inflicted on the husband by wife…
The Husband presented various evidences against wife, like complaint copy kalandara etc. Husband also presented various abusive messages from the wife side.
The above-discussed facts and circumstances unequivocally speak volumes of the fact that the respondent has incessantly been filing the complaints against the petitioner as well as his family members and the petitioner even had to go behind the bars in connection with one of those complaints, resulting in harm/damage to his image and reputation in the eyes of their relatives and the society at large. It has recently been observed by a three Judges’ Bench of the Apex Court in Joydeep Majumdar Versus Bharti Jaiswal Majumdar 2021 (2) R.C.R. (Civil) 289 that:- “12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wife’s allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue.
Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such
In a recent Judgement of Delhi High Court In Sarita Bakshi Vs. State the Hon’ble High Court first evaluated the salary slip of the Husband which looked like as mentioned below..
The Husband has deliberately shown a GPF loan deduction of Rs. 5150 which is deducted from salary but court held in this Judgement as under
In the present case, the total of income of the respondent has been shown as Rs. 49,407/- and the deductions have been shown as Rs. 19,452/-. After deductions the net carry on salary will come to Rs. 29,955/-. The learned Trial Court has rightly held that the deduction of Rs. 5,000/- towards recently taken personal loan cannot be considered as deduction as it is for his personal benefit and not mandatory statutory deduction; the total carry on home salary will thus come to about Rs. 35,000/- per month.
The Apex Court in the matter of Kulbhushan Kumar vs. Raj Kumari and Others MANU/SC/0349/1970 : (1970) 3 SCC 129 while adjudicating the deductions that can be made from the income of the husband before awarding maintenance, observed as below:
“…19. It was further argued before us that the High Court went wrong in allowing maintenance at 25% of the income of the appellant as found by the Income-tax Department assessment proceedings under the Income-tax Act. It was contended that not only should a deduction be made of income-tax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant. In our view some of these deductions are not allowable for the purpose of assessment of “free income” as envisaged by the Judicial Committee. Income-tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of appellant’s practice as a physician would be deductible only so far as allowed by the income-tax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car…”
A similar view was taken in the case of Nitin Sharma and Others vs. Sunita Sharma & Others (MANU/DE/0279/2021 : 2021 III AD (Delhi) 210), wherein a bench of this Hon’ble Court was pleased to hold as under:
“24. In the opinion of this Court, while calculating the quantum of maintenance, the income has to be ascertained keeping in mind that the deductions only towards income tax and compulsory contributions like GPF, EPF etc. are permitted and no deductions towards house rent, electric charges, repayment of loan, LIC payments etc. are permitted. On this aspect, the pertinent observations of Hon’ble Supreme Court in Dr. Kulbhushan Kunwar v. Raj Kumari MANU/SC/0349/1970 : (1970) 3 SCC 129, which have been followed by a Bench of Punjab & Haryana High Court in Seema & Anr. Vs. Gourav Juneja, are as under:-
“12. Section 125 Cr.P.C. stipulates that if any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate minor child, who are otherwise unable to maintain themselves, shall be obligated to do so. A moral duty and a statutory obligation is cast upon the husband to maintain his wife, minor children, parents who otherwise are not capable of maintaining themselves. A person cannot be permitted to wriggle out of his statutory liability by way of availing huge loans and reducing a substantial amount of his salary for repayment of the same every month. Deductions that are made from the gross salary towards long term savings, which a person would get back at the end of his service and such as deductions towards Provident Fund, General Group Insurance Scheme, L.I.C. Premium, State Life Insurance can be deemed to be an asset that he is creating for himself. In arriving at the income of a party only involuntary deductions like income tax, provident fund contribution etc. are to be excluded. Therefore, such deductions cannot be deducted or excluded from his salary while computing his “means” to pay maintenance. In the case of Dr. Kulbhushan Kunwar v. Raj Kumari MANU/SC/0349/1970 : (1970) 3 SCC 129: 1971 AIR (SC) 234 while deciding the question of quantum of maintenance to be paid, the argument raised that deduction not only of income-tax but also of house rent, electricity charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant was not allowed. Only deductions towards income-tax and contributions to provident fund which had to be made compulsorily were allowed. The relevant portion of Dr. Kulbhushan Kunwar’s case (supra) reads as under:–
“19. It was further argued before us that the High Court went wrong in allowing maintenance at 25% of the income of the appellant as found by the Income Tax Department in assessment proceedings under the Income Tax Act. It was contended that not only should a deduction be made of income-tax but also of house rent, electricity 20-11-2021 (Page 5 of 8) www.manupatra.com Ishaan Sharma charges, the expenses for maintaining a car and the contribution out of salary to the provident fund of the appellant. In our view some of these deductions are not allowed for the purpose of assessment of “free income” as envisaged by the Judicial Committee. Income Tax would certainly be deductible and so would contributions to the provident fund which have to be made compulsorily. No deduction is permissible for payment of house rent or electricity charges. The expenses for maintaining the car for the purpose of appellant’s practice as a physician would be deductible only so far as allowed by the income-tax authorities i.e. in case the authorities found that it was necessary for the appellant to maintain a car…”
In a nutshell, a husband cannot be allowed to shirk his responsibility of paying maintenance to his wife, minor child, and parents by availing loans and paying EMIs thereon, which would lead to a reduction of his carry home salary”
Sarita Bakshi vs. State and Ors. (03.06.2022 – DELHC) : MANU/DE/2076/2022
However the court allowed that the father of the husband who is 79 Years old and dependent on Son as legitimate and considered his share to be deducted.
Also the share of divorce sister were also considered as a deduction.
The father of the respondent may not be present before the Court to ask for maintenance, there is no argument or proof of his being independent or having financial resources to maintain himself. This Court still has to appreciate that even though he has not appeared before this Court it cannot be denied that he has to depend on his son at the age of 79. The father may not have considered filing case for maintenance before a Court of law. At times, parents may feel sad and inferior even at the thought of being maintained by their child and asking for maintenance. Their love and affection for their child is so overpowering that they may decide to live uncomfortably but not ask for maintenance. Parents want to feel independent as they don’t live with their children, their children live with them. With these thoughts in mind, I hold that the needs of the father are not many as he is staying with the respondent but a certain amount of expenditure must be apportioned for his needs.
In the present case, the learned counsel for the petitioner contends that a divorced sister cannot be held to be dependent on the petitioner. In my opinion, this stand is meritless to the extent that in India, the bond between siblings and their dependence on each other may not always be financial but it is expected that a brother or sister will not abandon or neglect his or her sibling in time of need. I completely agree with the learned counsel for the respondent that the petitioner’s divorced sister for claim for her maintenance and dependence can file a case against her husband. However, it has not been made clear in the present case as to whether the divorced sister of the respondent is receiving any maintenance or is being maintained by her husband or not. It is also not clear as to whether she is able to maintain herself as no argument has been put forth before this Court and it also does not find any mention in the judgment of the learned Trial Court. Therefore, I am of the view that though the divorced sister can legally and morally claim maintenance from her husband, the respondent, at the same time, must be spending and is expected to spend some amount for his sister on special occasions and in case of any emergent need. Therefore, though while apportioning the income of the respondent, one portion of income of the respondent cannot be apportioned to the sister, some amount as expenditure on yearly basis has to be kept aside for the divorced sister as moral obligation of the respondent. The plea of the petitioner that no amount should be considered to be spent on the divorced sister is meritless especially in the Indian context and the peculiar circumstances of the present case.
Sarita Bakshi vs. State and Ors. (03.06.2022 – DELHC) : MANU/DE/2076/2022
In a recent Judgement of Allahabad High Court the court has passed following guidelines regarding arrest in 498a cases
(i) No arrest or police action to nab the named accused persons shall be made after lodging of the FIR or complaints without concluding the “Cooling-Period” which is two months from the lodging of the FIR or the complaint. During this “Cooling-Period”, the matter would be immediately referred to Family Welfare Committe(hereinafter referred to as FWC) in the each district.
In the case of K. Subba Rao Vs. State of Telangana reported in 2018 (14) SCC 452 , it was observed by Hon’ble the Apex Court that the Court should be extremely careful and vigilant in proceeding against the distant relative of the husband in the crimes pertaining to the dispute even in dowry deaths. All the relatives of the husband should not be roped in on the basis of omnibus allegations unless Specific Instances of the involvement in the crime as alleged and surfaced during investigation with materials certainty. The sweeping and general allegations are very frequent nowadays and if such people are put to trial on such a casual and omnibus allegations, it would bound to lead the disastreous result and unwarranted hardships to those persons. In the instant case where her inlaws Mukesh Bansal and Manju Bansal remained in the company of their warring son and daughterinlaw barely for one year and four months and 25 days, left their company on 30.04.2017. Since, thereafter, the affair is between son and the victim alone. In addition to this, in their respective statement under section 161 Cr.P.C., a casual and sweeping allegations were fastened against them also when they are not in position to demand any additional dowry. It was further argued that victim priot to 03.10.2018, has not made a single whisper regarding dowry relatedd harassment and atrocities upon her by her parentinlaw. Then, the court has got no reason to presume that the inlaws were also active participants in extending dowry related harassment from the distance. It is urged by learned counsel for the revisionist that obnoxious allegations are motivated one, driven by a sheer retaliation without any iota of any sanctity to it.
Yet coming to another aspect of the issue which is disturbing and mindboggling to the Court. After reading the FIR allegedly lodged by Ms. Shivangi Bansal after 18 days of the incident, which is everabhorring, full of dirt and filth. The graphical description portrayed by her in her FIR is deplorable to be condemned in its strongest terms. The FIR is the place where the informant gives the story mobilizing the State Machinery engaging in the commission of cognizable offence. It is not soft porn literature where the graphical description should be made. Hon’ble the Apex Court in its judgment in the case of Priti Gupta Vs State of Jharkhand, 2010(71) SCC 667 has fastened the liability upon the counsels, paragraph nos.30, 31, 32 and 33 are quoted hereinbelow : “30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.
Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration (22) while dealing with matrimonial cases. 34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.
The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society.”
There is a lot of trouble which is faced by the NRI people that they amicably take divorce and everything just get ended or may be a divorce on merit in foreign country and wife has to come back to India.
This forceful exodus give rise to false cases in India.
In one such case by Karnataka High Court titled as
Husband has taken divorce in the USA and wife dependent visa was cancelled she has to come back to India.
When she came back to India she lodged false 498a case.
Husband challenged and filed Quashing Petition in Karnataka High Court.
The Karnataka High Court Quashed the FIR on below mentioned ground.
reading of the complaint in general as contended by the learnt counsel for the petitioners, it could be gathered that it appears to be a case of normal wear and Tear as is experience in any marital life. Apparently even as per the complainant no life threatening or any injury.
No allegations of dowry demand.
lastly as contended by the learnt counsel for the petitioner the instant complaint is nothing but a counterblast to the divorce case instituted by third petitioner before the superior family court at Los Angels. It is a matter of Record that respondent had been served during her stay in the US at her aunt place, who immediately on arrival to India has proceeded to lodge a police complaint and certainly it could be termed as nothing else but counterblast.
I see many number of clients who have evidence with them and waiting for the Defence evidence stage to use it. The problem with this is sometimes the best possible evidence cannot be produced by the husband to prove his innocence.
Now if the husband is saying that his relatives where not present at the time of the incidence as purported to be alleged in the investigation.
The husband can show CDR or through mobile location. Now if police is not collecting the details and doing one sided investigation then the only recourse husband has is to approach the court.
Obviously if police calls in pursuant to 41A notice the husband can circulate a letter to IO to summon the records and even after that the IO do not summon.
The husband can move concerned magistrate court with and application of monitoring investigation and section 91 application to preserve CDR or CCTV as the case may be.
If the magistrate court orders the the same can be record of chargesheet a glaring proof of your/family member innocence.
The same can be used to discharge or quashing also..at the time of filing chargesheet.
Now if the police do not do the needful and does not make the records as part of chargesheet.
The husband can demand after filing of the charge sheet under section 173(8) for further investigation.
There is no good reason given by the Court in these decisions as to why a Magistrate’s powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-
way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled.
When there are no evidence to show that the wife has deserted you with reasonable cause court can deny maintenance in such case
In Bheekha Ram v. Goma Devi and Ors., it was held by the Rajasthan HC that, there is no maintenance to the deserting wife. Right to maintenance stems performance of marital duty. If there is no evidence of ill-treatment by husband and wife has no just cause to live separately, she is not entitled to the maintenance.
In Kalidas v. Parwatibai, it was held that if the wife has left the husband without any reasonable cause and left her husband against his wish, she is not entitled to the benefit of maintenance under section 125 of Cr.PC.