Myself Amit, is a central govt. employee from Kolkata but living in New Delhi on job. My marriage happened in the Feb. 2011 in Kolkata. I am the only child of my parents. Due to marital discord, my wife left my place in Delhi on Sept. 2014 (as she failed to convince me to weed out relation with my aged parents). My wife is non-earning and she is in possession of our only son who is at present approx. 4 yrs old. Since she left my place and started residing in her parental house in Kolkata, I used to send money @12000 pm to her father's account electronically as my responsibility. I tried several times to return her back, though I failed to do so due to her crooked demands. Finally she lodged false 498A 406 in Feb. 2016 and 125 in Mar. 2016 without giving me any intimation and suppressing the facts of receiving money from me. I received the 125 summon in June 2016. I submitted WO in 125 and secured regular bail in 498A. Court awarded 125 interim maintenance on July 2017 @12000 pm for her and child. Subsequently she didn't appear court for giving her evidence in 125 even after showcause and court dismissed the 125 case for default on Feb. 2018. After that she didn't appear sessions court against the same order. After 6 months she approached the lower court again for reopening the 125 case which was also rejected on Sep. 2018. Till now 90 days over and she has not approached sessions court or any other higher court against the same. Regarding 498A, even after repeated request, police did not come to New Delhi for any investigation when 99% allegations wre for Delhi only and submitted two lines false chargesheet attaching the seizure list, and fake bayans of wife, her parents and an unknown person whom I don't even know myself. CS was submitted on Oct 2016. Since then last two years I got only 02 dates for appearence only. Trial court giving one date per 01 or 1.5 years. I have disbursed her total pending maintenance till the date of dismissal of the 125. At present she is not getting any maintenance, neither she applied for. Under this introduction I have below mentioned queries. I will be obliged if you answer them serial wise as per my questions: (1) Can she claim maintenance under DV now after 4 yrs of separation? Even if she files for DV, will it be maintainable now? (2) My adv is suggesting me to file contested Divorce on mental cruelty ground. If I do that, will it backfire me in 498A trial OR should I get acquitted through 498A speedy trial order first? (3) If I file divorce, can she claim maintenance in HMA24? My adv saying she CAN'T claim as 125 dismissed for default. Is he right? (4) Can I approach HC for discharge with Speedy Trial? How much time it takes to get the order from cal hc from the date of application? (6) Is there any chance that she can reopen the already dismissed 125 as appeal period over by 200 days? If not, then can she go for a fresh 125 now with the same grounds? (7) Is it right time for me to apply for divorce?
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1) wife can file DV case after period of 4 years
2) DV is a continuing offence
3) you can file for divorce on grounds of mental cruelty and desertion
4) it would not back fire
5) wife can claim maintenance in divorce case filed by you
6) application for discharge has to be made before trial court
7) appeal in 125 cr pc would be dismissed
1. There is no time bar in filing DV case she can ofcourse claim maintenance, alternative accomodation etc. in her said DV case. It will be maintainable.
2. You should flile a divorce suit on the ground of cruelty submitting evidence in support of your allegation. In no way your divorce suit will affect the other cases.
3. She can claim maintenance as per HMA which you shall have to challenge on the ground that her maintenance petition has already been dismissed.
4. You can file an application before the High Court praying for a direction upon the lower court to dispose of the case within a fixed time period may be with in next 6 months.
5. She might file a petition praying for reopening the case which is expected to be rejected unless valid ground is shown for such inordinate delay.
6. If you have decided to terminate the matrimonial relationship you are having with your wife, then you should file the divorce suit on appropriate ground before the Court.
She can file for DV as some Judgement will support her but it's maintainability is difficult but court may award maintenance additional to 125 crpc in DV.
There is no backfire now as she has already filed 498A.
You can go for quashing depending on merits of your case time can't be projected.
She can file condonation of delay application and proceed with 125 crpc.
Yes you can file for divorce
1. No dv case not maintainable now after.4 year of.speration.
2. The case won't backfire you should go.for contested divorce on ground of cruelty and desertion.
3. She can claim though we can contest same but her right in same is there.
4. Discharge has to file before lower court first. In high.court you need to file for quashing petition.
5. She can go for a fresh application.
6. Yes it would right to file divorce now and further if any.chance of settlement do.same and can go for mutual divorce.
1) Already one case is running in the court same section case can't filed twice one should merge with another.
2) If you go for RCR than it will backfire to you, you go or contested Divorce on mental cruelty.
3) Already she is living separately and CrPC 125 is dismissed, what is running in her mind and which case she can file against you that nobody know what step she is going to take against you she may or may not file maintenance case u/s/ HMA 24 against you.
4) "The right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution.
The Constitution of India provides Fundamental Rights under Chapter III. Article 21. Protection of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
So you have rights to approach HC for discharge. but how much time to get order its from court to court different its total depends upon how much busy court it and pending cases before your application.
5) She has chances to reopen case which is already dismissed or she may file fresh case against you.
6) Yes, You can apply for divorce.
1. She can but that will be a very weak case.
2. No, you have been rightly advised by your advocate.
3. Advised above
4. No the accused can not go to the HC for getting the process expedited.
5. Chances are very bleak that 125 will be re opened.
6. Yes go ahead and file the case.
regarfs
1. Yes she can claim maintenance under DV act. If she files for DV it will be maintainable. There is no time limit for filing such cases. She can file as long as she is your legally wedded wife. Just like she lodged 498A on you after 2 years, she can file the DV case after 4 years.
2. DO NOT FILE FOR DIVORCE when 498A is pending. Let me tell you why you should not file for a Divorce when 498A is pending. Divorce is a civil case and 498A is criminal case. Both have no dependency on each other. You cannot stop 498A just because Divorce is pending and vice versa. Let's say Divorce is granted, then you will have no hold or leverage against her. She is free to remarry. She will happily remarry and you will still have to fight with 498A. Although you are free to remarry, the probable alliance will have to think twice as you can still be convicted in the 498A case.
Suppose you have a girl waiting to marry, then it makes sense to file for a divorce. But if this reason of yours is let out to your wife, then she will ask for huge alimony as she knows that you are in a hurry.
Suppose she is in a hurry to remarry, then you clearly have a leverage on her and you can say that you will give Divorce only if she agrees to the condition that you will give alimony amount pertaining to only your son's expenses and no alimony to her and provided she withdraws the 498A and other complaints.
3. She can claim the maintenance under HMA 24. She will give some or the other reason, and say her situation has changed now, etc. and will try to convince the judge. Everything is different provision of law and each one has no bearing on the other, provided she has already been awarded maintenance under any provision.
4. You can approach the HC. But most likely it may not be considered as it's just 2 years and you are not in prison. Speedy trial usually has more effect suppose if someone is in prison. But you may give it a try.
6. She cannot reopen the 125. From my understanding she can file a fresh 125 as right to maintenance is continuous right.
7. NO. Already answered in depth in 2.
Having answered your question, here are my suggestions:
If you are wanting a Divorce, send a Notice to her to come forward for a Mutual Divorce. She may consider and come. Suppose she doesn't come (wait for another 3 months), then file an RCR.
Regarding your 498A, file a discharge application, instead of going for Trial. Also, why don't you consider approaching HC for quashing of Charge Sheet under 482 instead of Speedy Trial?
First file 482 and then discharge (if required).
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I am extremely satisfied with the crisp and to the point answers given by all the eminent experts. I have a few confusion in the contradictory opinions regarding the initiating of the divorce petition by husband. Please clarify the following points: (A) 125 maintenance case is dismissed for default (as she didn't appear for giving evidence even after showcause, it is not dismissed on contest). There is no other maintenance case pending. My wife is NOT earning and with my son in her parents house. I am a central govt. employee. She is presently not getting any maintenance from any other source. Under these circumstances, if I initiate the contested divorce, what is the chance that maintenance WILL BE DENIED to her in HMA24 on the ground that 125 already dismissed?? (B) Some experts have said that she may file fresh 125. Can she file fresh 125 on older grounds or she is required to file it on fresh grounds only, as her 125 already dismissed for default? (C) Can she file CrPC 127 (showing change of circumstances), although her main CrPC 125 dismissed for default?? (D) It appears that the chance of quashing/discharge in 498A/406 is rarest of the rare when the allegations of physical and mental cruelty are there in the FIR and CS however false; but it is the matter of trial only. Then being an accused is it my legal right that I can approach HC for speedy trial/disposal on life and liberty ground as already 2 yrs gone after submission of CS with no progress even though it is again state?? (E) Can initiating divorce at this point immune me from impending DV or other incoming more false criminal cases to any extent??? Can I easily quash such future cases by defending them as afterthoughts of divorce?? Or they have to be fought on their own merits through trial? (F) Can acquittal from 498A and other criminal cases first - give some weightage to the mental cruelty ground of my divorce petition if I file it later? Thanks and regards
1. See if she is not getting any maintenance there are chances you she can be awarded maintenance even her 125 maintenance application is rejected.
2. See it was dismissed for DD she can restore same. By filing a restoration application .
Further she can file maintenance application under 125 crpc showing some change in circumstances.
3. Yes she can file though can be contested.
Or a restoration.
4. Yes you can take directions by filing a writ petition.
5. See you can file a divorce though no.case.gurantee you immunity but the cases can be contested.
6. Yes false cases amounts to mental cruelty and further you can also file a defamation case too.
A. Maintenance will not be denied or allowed on the ground that you have filed the divorce suit against your wife. In the given circumstances, if she manages to file any maintenance petition, it will in all likelihood will be allowed since she is unemployed and deserves to me mnaintained. She is not getting it now since shje has not applied for it and her earlier application has been dismissed for non prosecution.
B. Her 125 petition has not been dismissed on merit. She can refile it showing some develiopment.
C. The mtter does not attract section 127 of Cr.P.C. in true sense but she can try this route stating that earlier she was helped by her parents (and also that she was very sick) for which she could not attend the court but now the support has evaporated and her circumstances has changed.
D. You can certainly file an application before the High court seeking oreder for disposal of the case with in s fixed time frame. Quash petition u/s482 of Cr.P.C. also can be filed before the High court picking the loopholes in the chartge sheet already filed.
E. Filing of divorce casec against your wife might not provide immunisation to you against the future cases to be filed by her, if any but it will certainly offer you some additional defense top claim that her said cases, if filed, are false and are retalitory in nature.
F.Certainly. Filing of false police complaint u/s498A of Cr.P.C. has been considered as an act of cruelty by our Apex court which is a fit ground for seeking decree of divorce from the Court of law.
1) wife would be awarded maintenance under HMA in event you file for divorce
2) wife can file fresh application for maintenance under section 125 cr pc
3) HC may not expedite hearing of your case . Lakhs of cases pending no case for expeditious disposal are made out
4) there is no immunity from
DV pr other cases merely because you filed divorce case first
5) complaints woukd not be quashed
6)acquittal would help you in making out a case for divorce on grounds of mental cruelty
There are some judgements in which it is observed that DV is not miantainable if it is filed after one year of sepration .
1. She can file DV case and can also claim miaintenance, however the maintainability will depend on how you convince court about her attitude towards court cases and her earliers cases in the same line and also it would depend on the court to decide and dispose the same.
2. Filing a divorce case will not impact the pending 498a case, that has no relevance to this case.
3. There is a provision for filing a petition seeking interim maintenance under section 24 HMA,this has nothing to with the maintenance cases filed under section 125 cr.p.c. and DV case.
However you can challenge the same on merits in your side.
4. For which case?, you can file a petition to quash the criminal case or DV case under section 482 cr.p.c.
6. She may file a petition seeking to set aside the dismissed for default of the maintenance case filed under section 125 cr,p.c.
She may not be eligible for filing maintenance case once again under the same section.
7. If you feel that it is intolerable to continue the married life with her, then you can decide to file a divorce case instead of just wasting your precisious time for her to return to the matrimonial home.
A) Sheis entitled to be maintained as she is your legally wedded wife and it becomes your duty as her husband to maintain her especfially if she is not employed and do not have any source of income to sustain her expenses.
Therefore the interim maintenance petition filed under section 24 of HMA in your divorce case is very well maintainable.
B) The court may not entertain or you can file an objection to her fresh case filed under section 125 cr.p.c.
C) You can approach high court seeking direction for a speedy trial of the pending criminal case against you.
E) As I had opined earlier, the divorce case has nothing to do with the pending DV case or any other criminal case, they have to be dealt with on merits of each case.
F) The above answer suits this question too.
The civil case has no impact on the criminal case and vice versa