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Wife threatening to file false case even after divorce, please advise.
30-Jan-2023 (In Divorce Law)
498a /DV case pending... it has been 1 year since 498a case filed. my beloved wife is approaching another police station ( in the area where her parents stay , in the same city) for the FIR she had given one year back.. this FIR was given after interim bail was granted.. now regular bail is also granted... and it had been 9 months... she has given FIR to file a rape case as i stayed with her after filing divorce... we had given FIR as well before as they had forcibly blocked me at their place( her parent's place) and were continuously threatening to file false cases ....her FIR was not registered that time... what is suggested now? we have given evidences and statements to police already during that time... i was in the same city as my office was there( now i got transferred)..... can this be registered? i guess she is doing this just to harass .. basically she is now following up with PS for this. this matter she is mentioned in the DV case already and we have filed counter say too
A decree of divorce obtained by a person, either ex-parte or after effective contest, would not absolve him of the liability to pay monthly maintenance amount to his wife if such amount had been awarded by a judicial magistrate by invoking Section 125 of the Code of Criminal Procedure, the Madras High Court Bench here has held.
Justice M. Venugopal passed the ruling while disposing of a criminal revision petition filed by a Tuticorin shopkeeper challenging an order passed by a judicial magistrate in Tiruchendur on July 21, 2011 directing him to pay Rs. 2,000 a month to his estranged wife. The petitioner claimed immunity from paying the amount on the basis of a divorce decree obtained by him on August 14, 2009.
Disagreeing with the plea taken by him, the judge pointed out that Section 125 of Cr.P.C. empowers a judicial magistrate to direct an individual to pay monthly allowance for the maintenance of his wife, children (both legitimate and illegitimate) and parents if there was sufficient evidence to prove that he had either neglected or refused to maintain them.
An explanation appended to the provision defined the term ‘wife’ to include even a woman who had been divorced by or had obtained divorce from her husband and had not remarried. Further, Section 127 of Cr.P.C. states that a maintenance order could not be altered unless the woman had remarried or given up her claim voluntarily or agreed for receiving a lump sum amount as per personal or customary law.
Therefore, “Divorce per se is not a ground for alteration in maintenance allowance and a decree of divorce obtained by the petitioner on the ground of desertion cannot affect the order of maintenance under Section 125 Cr.P.C.,” the judge said and directed the petitioner to pay entire arrears of maintenance amount to his wife within six weeks.
Stating that generally a woman, having no independent means of income, was entitled to one-fifth or one-third of the husband’s income, the judge said that in the present case, the petitioner had failed to prove that his wife had sufficient means to maintain herself. On the other hand, there was sufficient evidence in the present case to prove that the petitioner had neglected to take care of his wife.
One of the witnesses before the lower court had concurred with the claim made by the petitioner’s wife that he had asked her to live in a thatched shed without toilet and electricity supply despite having sufficient means to provide a better housing. Even the petitioner himself had admitted that he never use to bother whether his wife had taken food or bath.
“From this, it is quite clear that the petitioner had not evinced interest about her daily needs or welfare. The petitioner/husband has not performed his matrimonial duty of attending to the needs of the respondent/wife in this regard,” the judge observed. However, he reduced the monthly maintenance amount to Rs.1,500 as the shopkeeper was suffering from a physical abnormality.
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Batting for a better life for women after separating from the husband, the Bombay high court has said that a woman can seek more maintenance under the Protection of Women from Domestic Violence Act (DV Act) of 2005, even if she has been awarded maintenance any under other law.
Justice SB Shukre of the Aurangabad bench of the HC observed that even if an aggrieved woman has been given maintenance under any law, she can seek further maintenance under the DV Act.
"Once we consider Section 20(1)(d) of the DV Act, the conclusion would be that an aggrieved person is entitled to claim maintenance under this section in addition to her maintenance right under any other law for the time being in force," observed justice Shukre in his order passed last week.
The HC was hearing an appeal filed by a 31-year-old resident of Gadchiroli challenging the order of a magistrate awarding additional maintenance to his estranged wife, 24, and two-year-old daughter under the DV Act. He was earlier directed to award them maintenance under the Criminal Procedure Code by appropriate court.
MP Kariya, the husband's advocate, argued that the Delhi HC had recently passed an order which said that a woman does not have any right to claim maintenance in a parallel proceeding when she has already availed of maintenance right in an application filed under Section 127 of the Criminal Procedure Code.
However, the woman's advocate PD Rane countered saying that the view taken by the Delhi HC was based upon the consideration of Sections 12 and 19 of the DV Act and it appears that no consideration has been given to the specific provision under Section 20(1)(d) of the DV Act. Section 20 confirms special right of the aggrieved person to claim maintenance either including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure or any other law for the time being in force. This means, that even if a woman has been awarded maintenance under the CrPC, the magistrate can still direct the husband to pay additional maintenance under the DV Act.
Agreeing with the woman's advocate, the HC observed: "From perusal of the judgment of Delhi high court, it becomes clear that the said judgment has been rendered without considering the import of Section 21(1) (d) of the DV Act."
Justice Shukre further observed: "Therefore, this section [section 20 of the DV Act] having not been considered by the learned single judge of Delhi high court, in my opinion, no assistance can be sought by the petitioner from this judgment."
Justice M. Venugopal passed the ruling while disposing of a criminal revision petition filed by a Tuticorin shopkeeper challenging an order passed by a judicial magistrate in Tiruchendur on July 21, 2011 directing him to pay Rs. 2,000 a month to his estranged wife. The petitioner claimed immunity from paying the amount on the basis of a divorce decree obtained by him on August 14, 2009.
Disagreeing with the plea taken by him, the judge pointed out that Section 125 of Cr.P.C. empowers a judicial magistrate to direct an individual to pay monthly allowance for the maintenance of his wife, children (both legitimate and illegitimate) and parents if there was sufficient evidence to prove that he had either neglected or refused to maintain them.
An explanation appended to the provision defined the term ‘wife’ to include even a woman who had been divorced by or had obtained divorce from her husband and had not remarried. Further, Section 127 of Cr.P.C. states that a maintenance order could not be altered unless the woman had remarried or given up her claim voluntarily or agreed for receiving a lump sum amount as per personal or customary law.
Therefore, “Divorce per se is not a ground for alteration in maintenance allowance and a decree of divorce obtained by the petitioner on the ground of desertion cannot affect the order of maintenance under Section 125 Cr.P.C.,” the judge said and directed the petitioner to pay entire arrears of maintenance amount to his wife within six weeks.
Stating that generally a woman, having no independent means of income, was entitled to one-fifth or one-third of the husband’s income, the judge said that in the present case, the petitioner had failed to prove that his wife had sufficient means to maintain herself. On the other hand, there was sufficient evidence in the present case to prove that the petitioner had neglected to take care of his wife.
One of the witnesses before the lower court had concurred with the claim made by the petitioner’s wife that he had asked her to live in a thatched shed without toilet and electricity supply despite having sufficient means to provide a better housing. Even the petitioner himself had admitted that he never use to bother whether his wife had taken food or bath.
“From this, it is quite clear that the petitioner had not evinced interest about her daily needs or welfare. The petitioner/husband has not performed his matrimonial duty of attending to the needs of the respondent/wife in this regard,” the judge observed. However, he reduced the monthly maintenance amount to Rs.1,500 as the shopkeeper was suffering from a physical abnormality.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Batting for a better life for women after separating from the husband, the Bombay high court has said that a woman can seek more maintenance under the Protection of Women from Domestic Violence Act (DV Act) of 2005, even if she has been awarded maintenance any under other law.
Justice SB Shukre of the Aurangabad bench of the HC observed that even if an aggrieved woman has been given maintenance under any law, she can seek further maintenance under the DV Act.
"Once we consider Section 20(1)(d) of the DV Act, the conclusion would be that an aggrieved person is entitled to claim maintenance under this section in addition to her maintenance right under any other law for the time being in force," observed justice Shukre in his order passed last week.
The HC was hearing an appeal filed by a 31-year-old resident of Gadchiroli challenging the order of a magistrate awarding additional maintenance to his estranged wife, 24, and two-year-old daughter under the DV Act. He was earlier directed to award them maintenance under the Criminal Procedure Code by appropriate court.
MP Kariya, the husband's advocate, argued that the Delhi HC had recently passed an order which said that a woman does not have any right to claim maintenance in a parallel proceeding when she has already availed of maintenance right in an application filed under Section 127 of the Criminal Procedure Code.
However, the woman's advocate PD Rane countered saying that the view taken by the Delhi HC was based upon the consideration of Sections 12 and 19 of the DV Act and it appears that no consideration has been given to the specific provision under Section 20(1)(d) of the DV Act. Section 20 confirms special right of the aggrieved person to claim maintenance either including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure or any other law for the time being in force. This means, that even if a woman has been awarded maintenance under the CrPC, the magistrate can still direct the husband to pay additional maintenance under the DV Act.
Agreeing with the woman's advocate, the HC observed: "From perusal of the judgment of Delhi high court, it becomes clear that the said judgment has been rendered without considering the import of Section 21(1) (d) of the DV Act."
Justice Shukre further observed: "Therefore, this section [section 20 of the DV Act] having not been considered by the learned single judge of Delhi high court, in my opinion, no assistance can be sought by the petitioner from this judgment."
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Adv. Aveek Bose
Kolkata | 500+ Answers
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Sir, You are already in a guidance of a lawyer I suppose. If you under an impression that your lawyer is not advice you properly then you should make an appointment with another legal expert of your choice.
Listen Sir, your case is a complicated one and this type of cases are frequently varies on certain facts, acts, omission and commission etc. So, it is not wise to advice you without details. Thank you.
Listen Sir, your case is a complicated one and this type of cases are frequently varies on certain facts, acts, omission and commission etc. So, it is not wise to advice you without details. Thank you.
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19+
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Adv. Aniket Joardar
Krishnanagar | 100+ Answers
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I, Think, When 498A as well as DV is pending if she lodge another FIR then don't worry about it. Please collect the second FIR copy if it was registered and if the Charge sheet has been filed in connection with 498A Case, then both the Case be sent to the High Court for Quasing.
And if 2nd Fir did not registered then why you take tension.
And if 2nd Fir did not registered then why you take tension.
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Adv. Sanjoy Acharjee
Jalpaiguri | 400+ Answers
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