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Author Topic: Help!  (Read 1244 times)

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Offline ishs23

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« on: January 05, 2014, 10:40:50 PM »
My daughter got married in October 2012. It was a love marriage and she has lived with her husband for barely 10 months in her matrimonial house. She was thrown out of her house after an argument with her husband. The husband was verbally abusive and in the past has attempted to drop her at our house 4 times during the period. Post the incident mentioned above that she was not allowed by him to enter the house. Since the house was on rent, within one month of the incident he vacated the house without informing us about the same. Since the time she was thrown out of the house we were requesting him and his family to give us the house keys so that my daughter could go back but they kept on giving excuses and finally one day he sent her a message saying the hose lease expired so he had to vacate the house. He ran away with everything that was there in the house including her everyday wear and other things. He and his family completely seized any contact with us even though my daughter was regularly calling him and messaging him and emailing him.
We lodged a complaint with the CAW cell after 2.5 months of frantically chasing the family. Its been 2 months since the case is with CAW cell. He refuse to take her home and suggested we go for mutual divorce. We did not get our daughter married to her love for this treatment. She does not want to divorce the guy.

We had complaint about the domestic violence meted out to my daughter but now we have learnt that CAW take complaints regarding 498 which falls under Dowry Act. But in case we do not want to pursue Dowry case and instead Domestic Violence, what should we do? Kindly advice on the same and the justice we can get.

FYI: The husband after vacating the house is very much staying in Delhi with a relative of his while he has told us that he is going back to his hometown leaving everything behind. He has 2 established businesses here in Delhi but says earns just 12k a month when the rented accommodation was in Vasant Kunj and the rent alone was 27k per month.

My daughter earns handsomely so I do not think maintenance is something we need to ask for as the guy has already said he earns 12k only. Can we not also register a case of cheat and fraud on him since no well-educated and independent girl would ever marry a guy who earns just 12k a month but at the time of the marriage he showed us to earn nothing less than 60k-70k per month? Also since my daughter is staying with us currently, can right to residence be demanded? He can say he does not have a house so she can go stay with the parents in village but my daughter has a job in Delhi.

Offline advocate.isha

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Re: Help!
« Reply #1 on: January 15, 2014, 09:32:28 AM »
"Dear, itís sad to know whatever happened to your daughter but you need to be very strong to get justice. You have very strong case to be filed against your son-in-law. You can file a case of 498A of Indian Penal Code i.e. cruelty by husband or relative of husband. Supreme Court in various judgments has explained the term cruelty. But cruelty under IPC as per the case
Indrasing M. Raol vs State Of Gujarat on 23 July, 1999 means The husband or his relative if subjects the woman to cruelty is made punishable but every act termed as cruelty or harassment would not fall within the ambits of Sec. 498A. The meaning ofcruelty is given vide explanation to Sec. 498A. It means wilful conduct of such a nature as is likely to propel, or goad or compel the woman to commit suicide or to cause grave injury or danger to life, limb or health. If the woman is subjected to harassment with a view to coercing her or any person related to her to meet any unlawful demand for property or valuable security or coercing her & her relative owing to failure on her or her relatives' part to meet such demand, the same would also amount to cruelty prosecution has to, as made clear hereinabove, establish that the cruelty or harassment was unabated, incessant & persistent and being grave in nature unbearable; and the same was with the intention to force the woman to commit suicide or to fulfil illegal demand or dowry of the husband or her in-laws. At this stage, reference of two decisions may be made. The High Court of Bombay has also taken the same view in the case of SARLA PRABHAKAR WAGHMARE vs. STATE OF MAHARASHTRA 1990 Cr.L.J. 407 observing that every harassment or every type of crueltywould not attract Sec. 498A. It must be established that beating and harassments was with a view to force the wife to commit suicide or fulfil illegal demands of husband or her in-laws. The Supreme Court has also taken the same view in the case of STATE OF MAHARASHTRA VS. ASHOK CHOTELAL SHUKLA, (1997) 11 SCC 26 observing that the prosecution has to establish that the accused committed acts of harassment or cruelty as contemplated by Sec. 498A, and such harassment or cruelty must be the cause forcing the wife to commit the suicide. What can be deduced from these authorities
that a solitary incident can not be interpreted to be the sufficient evidence of cruelty or harassment attracting Sec. 498A because in that case, incessant, persistent and sufficiently gravecruelty as is likely to drive the woman to a point of desperation leaving her with no option except to think about suicide will be absent. In other words, a single incident will not incite a woman to commit suicide the improvident act, believing that life is now not worth living. Even if in some case it incites, the same will not attract Sec. 498A as persistency or incessancy will be lacking. The section when envisages that cruelty or harassment must be unabated continuous or recurring & unbearable, one or two incidents casually taking place, may therefore, attract another penal provisions of I.P. Code, but will not attract Sec. 498A of Indian Penal Code. What is further necessary may be elucidated.
Court is also to make necessary endeavour to ascertain why the husband or his relatives had as alleged turned up their nose at the victim and resorted to coarse cruelty, divorcing civility, delicacy & refinement. Having regard to the facts & circumstances on record, if Court finds that the misdeed or wrong on the part of the accused is the compelling reaction of the real or unjust or fancied provocative act of the victim, i.e. abetted counter-action or wrong, the same even if incivil or barbaric will not fall within the ambits of cruelty envisaged by Sec. 498A, for required intention would be lacking although the same may attract any other Penal provision. In short, therefore, intention to drive the woman to commit suicide being the essential ingredient, the endeavour of the court must be to find out having regard to the facts & circumstances on record, what the intention of the accused was ? I will, therefore, proceed to ascertain what could be the intention of the appellant when he, on mid-night as alleged, behaved stormily or roughly, though it is clear that the alleged solitary incident will not attract Sec. 498A.
You can refer this judgment for the help.

Isha Bhardwaj

Offline ishs23

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Re: Help!
« Reply #2 on: January 27, 2014, 03:57:10 AM »
But what happen to the marriage after that? What does filing DV guarantee to a woman? She is being forced to take this step as husband has behaved in the most bizarre manner. Just 10 months into the marriage and things have turned sour. What happens to those 4 years of false claims he kept on making just so he could marry the girl? Strange it is. The girl has tried everything to atleast have some contact with the guy but he has not bothered to reply to any of her communication except once when he wrote a legally drafted mail by putting baseless blames on her and signing off saying they both cannot reconcile now. He did not even have guts to meet her and say it personally to her but very conveniently at his own fancy replied this way.

Does DV give a ground to the boy to file for divorce? How much time does DV cases usually take to reach the final judgement? Till that time what remains the status of the marriage and also if the judgement is passed in the favour of the woman how does it prove beneficial in case she wants to live with the husband and not apart from him? 


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