Due to wife
Querist :
Anonymous
(Querist) 20 April 2020
This query is : Resolved
Sir,
My sister's gold ornaments taken by her husband and sold it 10 years ago.now he going to sell his own property also.my sister want compensation from husband on gold.can she recover his property before selling.but she don't want divorce, because of children's future.so can she get his property instead of gold by civil suite? husband can't refuse the truth that he was taken gold
Raj Kumar Makkad
(Expert) 20 April 2020
You sister can get stay oder against the proposed sale of the properties of her husband by filing a petition under 12 of Domestic Violance Act only. She shall not only be entitled for the grant of maintenance for herself and children residing with her but also rent of the similarly situated house, if she wants to stay separately with stay order of sale as already told to you. Engage a local lawyer for this purpose.
Suhail suhail
(Expert) 21 April 2020
She has to prove that her husband took away her golden ornaments; must have stroong evidance by way of witnesses.
Rajendra K Goyal
(Expert) 21 April 2020
In case of any claim through court your sister may have to prove the source of ownership of the gold ornaments and also has to prove that her husband took these and sold. Why any action was not taken for such a long time?
Rajendra K Goyal
(Expert) 21 April 2020
You have not mentioned whether both are living together or separately. If living separately, since when?
Whether any other property was taken by him which constituted the Stri Dhan of your sister?
How many children your sister is having?
How the property was acquired by her husband, whether it was self-acquired or ancestral?
Rajendra K Goyal
(Expert) 21 April 2020
However, on the basis of given facts, your sister may try to take a stay from court against the sale. She should claim maintenance and residence from her husband through court.
Contact some local lawyer and discuss in detail.
KISHAN DUTT KALASKAR
(Expert) 21 April 2020
Dear Sir,
You must be direct in approach. Just get file maintenance suit by wife and children and get a stay from selling the property saying they will be on streets in property is sold. They entitled for maintenance and charge will be created on such property.
P. Venu
(Expert) 21 April 2020
I am afraid you are demanding boiling ice-cream for your sister. How can your sister approach a court of law against her husband without straining their matrimonial relationship?
Guest
(Expert) 21 April 2020
Sure, your sister can raise dispute against her husband intending to sell his property, but only if your sister want to buy thorns for her whole life, but with no certainty to get even an inch of the property during the life of her husband, even if if taken stay against sale of property. Even stay to sell property may also not be assured by her lawyer.
By the way, what was the value of the gold ornaments of your sister 10 years before?
Also, does your sister want to live separate from her husband?
Still further, has she some earning source to afford the cost of litigation against her husband?
Guest
(Expert) 21 April 2020
Very Right word by Mr.P.S.Dhingra . Wife could only. create a dispute by claiming a share in husband's property. Legally she could only claim Maintenance Or Alimony and not a share in husband's property whether self acquired or ancestral by him.
Raj Kumar Makkad
(Expert) 21 April 2020
under Section 19(1) (b) of Domestic Violence Act order can be passed directing the Respondent to remove himself from the shared household. Thus, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household.
In this case, the Bombay High Court held that no matter that a man may alone own a particular house, he has no right to be violent against his wife or the woman he lives with and if the Court sees any violence he must be restrained from entering upon the residence essentially to secure the wife and children against further violence and similar disputes.
Object behind enactment of Section 19 of Domestic Violence Act – In Sabita Mark Burges case, the Bombay High Court very succinctly explained the object behind residence order as-
It is common observance that the applications for grant of injunction in respect of the residence and possession of the respondent is essentially seen by Courts upon the proprietary rights of the parties. Since in most cases wives do not own matrimonial homes, they are statutorily given rights therein which were not given to them by Courts under the principles of common law so that they have a right to peaceful enjoyment of their matrimonial home. Section 19 of Domestic Violence Act came to be enacted in the first place granting essentially the wives/women peace against domestic violence in their residence, their title notwithstanding. This statutory grant is upon the sublime principle of human rights prevailing over proprietory rights. It may bear repetition to state that both are equally entitled to the said flat unless one of them is violent.
Guest
(Expert) 22 April 2020
Domestic Violence can not create any Lien over the Self acquired or ancestral property of the husband Legally as narrated by Mr.Makkad
Guest
(Expert) 22 April 2020
Any claim of Jewels after a lapse of 10 years will not have any legally valid claim. A Good Advocate of the husband could defend it easily
Guest
(Expert) 22 April 2020
The second para of the Makkad in his last post is not applicable here and totally misguiding and misleading the Querist.. No such word of Violence is posted by the Querist and imaginations of makkad carries No Legal Value and any Learned and Ethical Advocate will not do this please.' Makkad is in the habit of posting unwanted things in his filthy competition with RajendraK Goual please.
Guest
(Expert) 22 April 2020
Amicably sorting out would be the Right way of doing it.
Dr J C Vashista
(Expert) 22 April 2020
Very well explained and obliged by experts Mr. Raj Kumar Makkad and Mr. Dhingra PS, which I fully agree and appreciate.
Gold (Stridhan) owned by your sister was stated to have been sold 10 years ago, presumably with the consent of your sister, to meet domestic expenses, which may not have any evidence, isn't it? Even otherwise there is no scope of compensation for sold ornaments.
Can the issues between your sister and her husband be sorted out amicably? If so, the approach (let some elderly/ relatives be roped in) shall be best option to maintain peace in their life in comparison to restoring to legal remedy, which I would advise (or suggest) as last choice.
If your sister can not settle the issue amicably she should engage a local prudent lawyer for filing a case of maintenance as advised by expert Sh. Raj Kumar Makkad.
P. Venu
(Expert) 22 April 2020
I am afraid the suggestions are going too far.
It is the case of the author that his/her sister's husband has sold the said sister's gold ornaments and whether the wife could sue her husband on this account. Admittedly, the couple are married for over a decade and staying with the children and there is not even a whisper of domestic violence or strained matrimonial relationship or even a disturbed household.
Moreover, there is no suggestion at all from the author that husband has been reckless in disposing of the wife's ornaments and that the wife is peeved over the alleged deprivation of ornaments. It is a common incidence in married life that wife's ornaments could be made use in tiding over difficult situations or for acquiring house or property of their own.
Unequivocal as the facts are, it is preposterous to suggest the provisions of Domestic Violence Act to oust the husband from the shared household or to seek maintenance and crowing it all, to engage a prudent lawyer for filing a case.
In the light of the facts stated by the author the only meaningful advice that could be made to the overenthusiastic sibling is not to create troubles in his/her sister's married bliss.
Raj Kumar Makkad
(Expert) 22 April 2020
@P. Venu Sir! Kindly again read the query of the author containing more facts that the husband of her sister is also going to sell now his own property and further that her sister wants to save that property. You have read only one half portion and have advised accordingly. The portion referred above is missing in your reply.
There is no limitation in DV Act. Even if the sister of the author had not raised any matrimonial dispute earlier even then she is not precluded to raise now. The author is here to ask legal remedy and we are meant for that purpose. A wife cannot seek stay order to sell the individual/self acquired property against her husband except under the provisions of DV Act clubbed with her right to maintenance and this is the only Act which contains such provision. The reply already offered to the author is based upon that line.
Raj Kumar Makkad
(Expert) 22 April 2020
In Vimalben Ajitbhai Patel and Ors. vs Vatslabeen Ashokbhai Patel and Ors. (decided on 14th March, 2008) AIR 2008 SC 2675, the Supreme Court considered a petition filed by the in-laws where it noticed that both the in-laws were very old and the daughter in law was permitted to pursue her remedies against her husband. The Court held as under:
"24.The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also there under acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.
Raj Kumar Makkad
(Expert) 22 April 2020
Refer to section 3 (d) (iv) of Domestic Violance act, 2005:
(iv) “economic abuse” includes—
(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.
Guest
(Expert) 22 April 2020
Citations mentioned by Makkad is in no way applicable to the Query please. Mr.P.Venu is Right.
Rajendra K Goyal
(Expert) 22 April 2020
A woman can proceed for a stay against the sale of matrimonial home.
Guest
(Expert) 22 April 2020
Can proceed for a stay and winning a stay order are two entirely different elements of an issue. Getting a stay order in disposal of husband's personal property by a wife is not a child's play. If not a divorce case, the wife is supposed to live with the husband, wherever he lives himself, in own property or in rented a property. Don't try to misguide the querist.
Guest
(Expert) 23 April 2020
Obviously some people are becoming number one in totally misguiding and misleading the innocent Querist
