MP Kori
Asked September 16, 2016

Domestic violence case filed by wife

  • 1 Answer
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1) My wife filed DVA to claim interim for both daughter(3.5 Yrs) and her, while she is highly qualified and working with 46K salary where as I am jobless due to the recession and surviving with sundry business. 2) We objected the DVA and referred to mediation, but she persists to transfer the property in her name hence mediation failed. 3) Later I have filed both RCR(Restitution of conjugal rights) and G&WC, where I am sticking to recall my family. But as there is no judge DVA case is pushed date by date, no single hearing till the date. Please suggest are we on the right track? Any specific tips? 3) It is almost a 1.2 years my wife has deserted me by depriving both marital and parental affections and she has no evidence to prove domestic violence? How do I tackle this? 4) Can I apply for immigration to other country and work there during this situation as I don't have any criminal cases lodged on me? if my wife doesn't want to accompany then what? 5) Also please suggest any better ways to come out of all these false cases at the earliest without any burden/cost to be paid to my wife,daughter as my wife is instigated by her father who is a court bird having no better job than this. Your quick and valuable tips in this regard is most welcome. thanks in advance.

Answer 1

  • Firstly you can approach the magistrate and he can direct you and your wife either separately or jointly to undergo counseling with any person appointed by the court and who possess such qualifications to counsel the two of you. And also the court has to fix a date on the same before the expiry of two months from the date of application for counseling. [1]
  • In regards with the restitution of conjugal rights. Till the time your domestic violence case is not decided the court will not be able to pass a decree for restitution of conjugal rights. As the court has to be satisfied that there wasn’t any rational reason as to why your wife deserted you.[2] But in this case, there has been a case of domestic violence against you. The court will presume that you have been harming your wife and in order to protect herself and her child, she is living alone. It is you who has to first disprove the allegation that there wasn't any act of omission of the act that would suggest you tried to injure or harm or threatened to harm your wife physically, mentally, sexually or financially.  However, the burden to prove that why your wife has left or deserted you will lie on your wife.

In Domestic violence case you need to prove that you didn't harm your wife, however in the RCR, she needs to prove why she deserted you.

The decree of restitution of conjugal rights can be enforced by the attachment of property, and if the party complained against still does not comply, the Court may also punish him or her for contempt of court.[3]

  • It is the discretion of the court to grant you to visit your child during the pendency of the case. If the court feels that your meeting/ visitation may hamper or affect the child the Magistrate shall refuse to allow such visit.
  • You can apply for immigration and fly abroad only after taking a prior consent from the magistrate under section 205 of Criminal code of procedure. Where it clearly states “Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.” However the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner provided in the act.[4]
  • In regards to your last query, you need to take help of a legal practitioner who can defend the charges levied upon you and prove that you have never assaulted or harmed or threatened to harm your wife either physically or emotionally or financially, and neither do you intend to do the same in future. Only after the same can be proved in the court of law, or you reach a settlement/ compromise in the counseling session, you’ll have to pay the expenses incurred and the loss suffered by your wife and child.[5] However, you are not liable to pay for the maintenance of the child and your wife. You are just liable to pay the loss suffered by them.
  • Also at the end of the trial you can file a case of malicious prosecution against your wife after it has been disproved that she filed a frivolous case against you of Domestic violence and deserted you from parental and marital warmth for more than 1 year.
  • In an action for malicious prosecution the plaintiff must prove: 1) That he was prosecuted by the defendant. 2) That the proceeding complained was terminated in favor of the present plaintiff 3) That the prosecution was instituted against without any just or reasonable cause. 4) That the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with an intention, which was wrongful in fact. 5) That he suffered damage to his reputation or to the safety of person, or to security of his property[6]

It has to be proved that the plaintiff has suffered damages as a result of the prosecution complaint of. Even though the proceedings terminate in favor of the plaintiff, he may suffer damage as a result of the prosecution. The damages may not necessarily be pecuniary. There could be three sorts of damages any one of which could be sufficient to support any action of malicious prosecution. 1) The damage to a man’s fame as where the matter whereof he is accused is scandalous  2) The damage was done to a person as where man is put to a danger of losing his life , limb or liberty  3) The damage to a man’s property as where is forced to expend money in necessary charges , to acquit himself of the crime of which he is accused.  

 

[1] The Protection of women from domestic violence, 2005: section 14

[2] Hindu marriage act, 1995 : section 9

[3] Restitution of Conjugal Right: A Comparative Study Among Indian Personal Laws; http://www.legalservicesindia.com/article/article/restitution-of-conjugal-right-814-1.html

[4] Code of criminal procedure act, 1973; section 205

[5] The Protection of women from domestic violence, 2005: section 20

[6] http://www.legalserviceindia.com/article/l337-Malicious-Prosecution-under-Law-of-Tort.html

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