Domestic Violence Act-2005
Querist :
Anonymous
(Querist) 21 August 2010
This query is : Resolved
Dear Experts!
Kindly give your valued opinion on the following : "A" has filed a complaint against"B" before a Magistrate U/S 12 for relief under Sections 18,19,20,22 and also U/S 23 to Grant Interim Ex Party order with the main Application under Pevention of Women from Domestic Violence Act-2005. The Magistrate has sent the summon to Respondent"B" to appear in person or by pleader on 25/09/2010.
The question is :
1.Once the summon is served and received by the Respondent, Can the Magistrate pass Interim Ex Party Order before 25/09/2010 without giving the chance to the Respondent.
2. The Respondent"B" has ample evidence to prove that all the allegation made by the Complainant is based on false affidavit. For example : The Applicant is Govt. Pensioners ( Rs. 8,000 pm) and the Respondent has aslo evidence from the Bank about Income of Applicant to the tune of Rs.3.00 lakhs in the year 2009-10. On other other hand the Respondent has no Income at present. The Respondent is willing to file a case against Sec. 340 Cr. P.C. against "A". Is this case against "A" U/S 340 Cr. P.C. be filed before that same Magistrate or some other Court.
3. If the court takes cognizance U/S 340 Cr. P.C. ,can the proceedings in the DV Act. case be stayed till the Final Order in 340 case.
Srinath Kondapally
(Expert) 21 August 2010
Sir,
Answers:
1) Court cannot pass exparte orders before 25/9/10. 2)the contents are not sufficient to file 340 Cr.P.C. If you have such grounds you proceed with trial or at the instance of hearing of case, and such grounds shall not prevent "A" in proceeding woth D.V.Case. 3) D.V.Procedings will not be stayed in such circumstances.
s.subramanian
(Expert) 21 August 2010
Yes. I agree with Mr.Srinath.
sibasish pattanayak
(Expert) 22 August 2010
yes i agree with mr srinath ji.moreover i wd like to say if u file a case u/s 340 cr p.c. in that event ur defence wl expose in the earlier stage of evidence which may injurious to ur case.The complainant "A" HAVE TO PROVE HER CASE.JUST proceed with the case with efficacy. u wl win.
regards,
sibasish pattanayak
Advocate.
09874854594/09477090999.
Querist :
Anonymous
(Querist) 23 August 2010
Dear Sirs
Let me tell you the details of the case:
1."A" ( deceased) and "B" ( A's wife ) bought a Flat in Delhi. At the time of purcahse of this both were running short of money and entered into agreement with " D" daughter -in-law of A& B and wife of "C". The agreement was that "D" will make Rs. 13 lakh out of total consideration of Rs. 45 lakh to one of the vendors of the said Deal.
2. " C" is the only son of A &B and they have three all were married at the time of Purchase of the Flat.
3.Both "A" & "B" made oral agreement that after sometime this Flat would transferred in the name of C &D. However, a wriiten agreement was made beetween Ist Party ( A&B) and second Party "D" that i) "D" will have right to reside in this flat alongwith her family till her life and also ii) No third party interest shall be created in the said property without the consent of each party.
4.Later of one daughters "E"of both A&B left her husband in other city and started living the the said Flat along with A,B,C,D , "E" Exparty divorce from husband by providing false adress of he husband from the court. Since "E" was very quarlsome that why her husband never asked "E" to comeback neither he shown any interest in continuing any relation with "C"
5. In December 2009 "A" expired. Since then "E" was pressuring "B" either to transfer this flat to "E" or Sell in order to alienate C&D.
6. In May 2010 "D" filed a civil suit against "B" for Permanant and Mandatory Injuction for craeting any third paty interest in the property. "D" got stay from the court and the matter is under trial.
7. In reaction of this at the instigated by of "A" filed a Criminal Complaint U/S 125 for maintenance to Rs 10,000.00 against "C" ( Son) and also U/S 18,19,20,22 against both "C" and " D" for i) a further maintenace of Rs. 10,000/- ii) Rent of Rs. 7,000/- and iii) 5,00,000/- compensation for mental torture.
8. In all he petions she maintains that she doesn't have any source of Income while she has been getting A Family Pension of Approx Rs. 8,000 from one of the public coroprartion s of Govt. of India,under Ministry of Power.
9. "C" passed LL.B. in 2010 and got himself enrolled as an "Advocate" and as per recent Notification of Bar Council of India "No Advocate passed LL.B. in the year 2010 can practise in any court withou passing the All India Bar Exam which scheduled to be held on 5/1/1020.
That means "C" doesn't have any Income presently.
10. All the claims made by "B" in her 125 and DV Act cases are filed on false affidavit reafrding her Income and her son's (C) income.
