DVact-Property locked?
Prashant Kolte
(Querist) 26 November 2009
This query is : Resolved
Sir,I am Prashant,after 12 years of marriage,my wife has filed Domestic voilence petition against me in may 2009.To avoid future arguments with wife, from that day, I left my home & staying in rental place(same city) with my mom-dad..She demanded 3 things in petition...first 2000 rs monthly for my 2 kids(age 11 & 8 yrs).2nd 10000 rs monthly for her expenses..3rd permanent order from court to me that I will not sale my flat(where she is staying now with 2kids) in future...Trial is going on..But court gave intrim order 1st..2000 rs mnthly for kids...2nd order-till the result of this case,I can not sale my flat in which she is staying with my 2kids..3rd-do not remove her from my flat..All other demands of her has been rejected by court.Sir,I did B.E & MBA.Presently I dont have any job or not doing any business bcz for business I dont have funds.Also I took loans from various sources like personal loans,credit cards,car loan,amount from friends & relatives before this case..For paying all loans amount 14 lac Rs & to do business,I wanted to sell my flat(approx cost 20lac Rs) but wife did not agree with me.She need security right now & dont want to support me for selling my flat.She asked me to take money from your father who is capable but I can not do this.This is the main cause for her to file DV petition.I am the single owner of flat not jointly holding with wife.But she demanded to court the order that i will not sell flat in future.She also submitted papers showing various property in the name of my father & mother.But I have no option to sell flat & have cash for paying loans & also for livelihood expenses of me & my family.
My query is Can court at the time of final result give me order that I can not sell my flat (in which she is staying with my 2kids) for long life?Is it possible that I will arrange rental accommodation for her,rent will be paid by me & sell the flat?What are the remedy available for me?Bcz I need to sell my flat to pay loans & livelihood expenses.There is no option for me except to make suicide.Can any law of India grant me permission to die?
Please advice me in this regard.I would be greatfull to you .Eagerly waiting for your opinion.
Regards,
PRASHANT K.
25.11.2009
A V Vishal
(Expert) 26 November 2009
Unfortunately, Yes, you cannot alienate the property if the court passes an order to that effect, refer the following provision under the DV ACT:
Section 23 (Chapter 23) Residence orders.
19. Residence orders.-
(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order -
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.
Prashant Kolte
(Querist) 26 November 2009
Thanks for ur reply.But Vishal sir,presently I dont have any source of income to pay the loans & for livelihood expenses.Even I am not able to pay 2000 Rs maintainance monthly.I will not get job.I have to do business to generate income.I have submitted all loans papers to court.In this case also,court will give order not to sell flat.Pl advice me.
Kiran Kumar
(Expert) 26 November 2009
Prashant to maintain your wife and children is ur legal as well as moral duty.
my advice in your case is to ensure amicable settlement, talk to her and her parents on this issue. In courts you may end up in losing end. Better will be if you both husband and wife make some mutual understanding on such issues.
I know it will be tough nut to crack but the court proceedings will rather increase the differences.
adv. rajeev ( rajoo )
(Expert) 26 November 2009
Go for settlement, otherwise unnessary mental tension, harrashment and all these affects on ur work.
Raj Kumar Makkad
(Expert) 26 November 2009
I do agree with the detailed opinion of Vishal. It is better to make a compromise with your wife and accordingly take future course of action. It is also not bad to pray for help to parents at the bad times. Your parents are also residing with you and if you are at the verge of sell of your flat then on what day their blessings shall work?
Ashok Yadav
(Expert) 26 November 2009
Mr. Prashant after reding your query i am of the opinion that you are trying to make fool of the experts......emotionally..... you are saying that u r residing with ur parents and that is the reason of quarrel ...and on the other hand u r saying ur parents have a lot of money & some Flats also......so ur parents can help u to repay the loan.....if u loves ur parents .... to love your wife and your 2 kids is also ur duty..... u never ask for the custody of ur kids???.....it shows u want to get rid off your wife and kids.....
Try to reach an amicable settlement with ur wife ..... no one can help u...only u can help you and u know this......
James Arun
(Expert) 26 November 2009
I agree with my brother Advocates.
Mr Prashanth, I advise you not to look at your wife or her alleged wrong doings. Look at your two children instead. Don't they deserve a decent life? If you give up this ego fight, you can focus on your work and start earning more in a peaceful state of mind.
If your relationship with your wife has broken beyond repair, instead of dragging this matter in courts, take charge of your life and settle the matter amicably, not for your wife, but for you and your kids.apply for divorce and discuss shared parenting options.
From the legal angle, you cannot escape maintaining your wife and kids.
Keep one mantra in your life and you will not regret it - "I am doing this for my kids". Even if they do not understand now, they will when they grow up and bless you.
James
Arvind Singh Chauhan
(Expert) 26 November 2009
I think Kiran sir and James Sir suggested you the right and pious path.
Prashant Kolte
(Querist) 27 November 2009
Resp Sirs,Thanks to u all.I also wants settlement with my wife for my kids future.Bcz its my duty.But after taking money from my father for paying loans & do the business,she does not want to live with my parents.I am only son of them.How can they live remaining life alone at native place.It is my duty to take care of them.She wants me,my flat & monthly expenses 12000/Rs(excluding rent) in her hand.Besides that I should manage expenses for kids fees,hotelling,vacation tour,clothes etc whether I am earning or not.U know,in business there r ups n downs.She do not want to adjust in my bad period and she will never bcz she knows,my father having properties,they will give.Thats why she opted out for flat order.How can i ask my parents that u give money & go to native place..After court result,I obviously maintain wife & 2 kids whether court give negative result.Bcz i love them very much but wife do not understand my problem.I am ready to give her maintainance & rent.Also I want to stay with her but I need to sell flat.I think I should solve my financial crisis on my own property rather than fathers properties.This is the main cause for my wife.I told her that my parents will give their property later on,why r u worrying?But she never understood this fact..I would like to ask you sir that HAVE U HEARD ANY JUDGEMENT restraining the respondent to sell his property even if it is for future life of family to generate income.Also last Q:me & my wife r jobless now.In such scenario,HOW MUCH MAINTAINANCE Court will give in final order for me.?
Please give me your expert opinion.Waiting for reply.
Prashant Kolte
(Querist) 27 November 2009
Resp sirs,thanks to u all for your valuable expert opinion & time given for my query-DVact-property locked? Expect the same in future.
Regards
Prashant Kolte.
