Bigamy/ domestic violence
Geetanjali
(Querist) 06 March 2012
This query is : Resolved
Dear Sir/Madam...I was married in 1994 and in dec 1994 i gave birth to a son. I was living with my husband and in-laws in the house which was a self acquired property of my father-in-law. In 2000, father-in-law turned me, my son and my husband out of the house and disowned my husband and also made a registered will passing on his entire moveable and immoveable property in the name of his daughter, my husband's sister. My husband got agitated and frustrated after this and used to blame me for this. As a result, our relationship deteriorated and he filed a separation case against me in 2001 . We were staying in the rented house then. After the separation case, my husband left me and my son and went to live in another rented accommodation. I could not afford to pay the rent and so I had to move out to my Parents house along with my son. In 2003, my husband converted the petition of judicial separation into petition of divorce on grounds of cruelty. In the mean time, in 2006, my father-in-law expired and my husband being the only son moved into the palatial house to look after his mother. My husband continued to pay me maintenance of a paltry amount of 1400 every month since the time we separated. In 2008, the trial court granted divorce to my husband and I filed the appeal against the judgment and also filed a petition disabling my husband to marry again in the high court. My husband now has remarried and is staying with his second wife and her daughter in his mothers home. I have failed to gather any proof of his second marriage as I learn that he married this lady in some temple and has not left any proof. I want your advice on whether:
1. Can my son claim anything from my husband or my inlaws. My son is going to be a major next month. ( My husband has shown no income in the returns and has shown himself unemployed and surviving on income of my mother-in-law and also he has no property in his name). However, my in-laws have huge properties and lands in crores. My husband , as directed by high court, is paying me 1900 every month which is inadequate for me and my son as I have to incur many expenses for our survival and for his education
2. How can I get my husband punished in bigamy in absence of any proof of his second marriage. Is living with this lady not a proof of his second marriage.
3. Can I take shelter in my husband's home( now my sister-in-law's) home under domestic violence act .
Please advice
Regards
Sanjana
Adv.R.P.Chugh
(Expert) 06 March 2012
Ms.Sanjana,
First of all - your father in law could not have deprived your child by means of a will, it is a wrong perception that if it is his self acquired property he can - as soon as a grand-child was born to him - it turned into an ancestral property in the hands of your child. And a definite share vested in your child as an equal coparcenor. He can file a suit for partition (since he is a minor you can as his next friend) or if he is turning major you can file afterwards - till he is 21. and get his share culled out. The will does not take effect insofar as it deprives your child of his legitimate interest.
2) I am at a loss to understand how could he remarry, a person cannot remarry after atleast the time limit for an appeal runs out - and in this he got married after appeal was entertained this is impermissible - I am not sure why court did not entertain your prayer for a stay. As soon as appeal is admitted.
3) Bigamy charges are difficult to prove but not altogether impossible.
Feel free to ask for any clarifications !
Bharat
Geetanjali
(Querist) 06 March 2012
dear Mr Bharat..Thanks for the reply...The property now belongs to my sister-in-law..She is the owner of this property as my father-in-law had written a WILL and registered it in the magistrate's court. It was his self acquired property. Are you sure my son can claim his share from my sister in law thereby nullifying his will? The court did entertain my petition for putting a stay on his marriage but he has still married leaving no proof...how can i prove?
Adv.R.P.Chugh
(Expert) 06 March 2012
I am surprised you did not know his - but your child did acquire a birth right - a share equal to your husband in the property, which can be culled out via partition. You seem to be suggesting that will has been probated- that is carried into effect and property in name of your sister-in-law. It can't be and if it has been done - the same is against the law. At the time of probate all legal heirs are to be sent summons to entertain objections (if any) you (the child) have not been served with the same it seems. As I said earlier you can seek to get the will set aside insofar as it concerns child's share by instituting a suit for partition/declaration to will being inoperative pro tanto.
Geetanjali
(Querist) 06 March 2012
Thanks Mr Bharat...But in the registered WILL, my father-in-law has written that due to misbehaviour of my son and his family, i disown my son and his family from all my moveavle and immoveable property. After my death, all my property goes to my daughter and my son, my grandson and my daughter-in-law has ho right to claim. Also, my wife till she is alive will stay in this property and after her death, my daughter can do what ever she can of theis property. The Will is registered in sub registrar's office and signed by 2 witness..Now, if my husband is disowned can my son still claim the share. If my son can claim the share, can my husband also claim the share legally?
Geetanjali
(Querist) 06 March 2012
Mr Bharat,my son through me has filed a petition in the court claiming 1/6th share in the property. Because my lawyer adviced me that the property is to be equally divided in 3 shares( my husband, my mother-in-law and my sister-in-law) and out of 1/3rd share my husband gets, my son can claim half of that. that is 1/6th share. We did not knew about the Will when we filed the case . So the summon were sent to all the 3 legal heirs. But now, my sister-in-law has produced the registered WILL in the court. The case is pending for the evidence of my son. I am not very satisfied with my Lawyer's version as he suggests that as the fatherinlaw has mentioned in the registered WILL about disowning my husband and his family, we will not get any share. I am confused.
Deepak Nair
(Expert) 06 March 2012
Dear Ms. Gitanjali,
Whatever Mr.Bharat has advised are absolutely right.
You asked another query titled as REMARRIAGE some times before with respect to your husband's attitude.
Now, what I have to suggest is to take necessary action immediately. Contact a lawyer in your locality who is conversant with property related matter and take necessary steps.
Geetanjali
(Querist) 06 March 2012
Thanks Mr Deepak.I have already filed a case for my son's share in the property of my father-in-law. But acccording to my lawyer, we do not stand any chances to get any share from the self acquired property of my father-in-law as he has mentioned clearly in his registered WILL that after his death, everything goes to his daughter as his son(my husband) has been living separately and always misbehaved with him and his wife and so his son and son's faMILY has no right in the property
Adv.R.P.Chugh
(Expert) 06 March 2012
Allright - The fact that he disowned your husband, you and your child is OF NO CONSEQUENCE. He (your FIL) under the law was holding the property alongwith your child in equal respects. He could have freely willed half of the property. He could not give the entire property by way of a will or by any other means - for a person cannot dispose of what is not his own.
The way your partition suit has been framed is absolutely misconceived on the very face of it. Your child takes directly from the grandfather. The fact that will is registered is of no consequence again. It won't stand the test of judicial scrutiny.
But again whatever I've advised above is, at best, provisional - a thread-bare examination of your pleadings is indispensable so as to reach a informed conclusion.
R.K Nanda
(Expert) 06 March 2012
Repeated query.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 06 March 2012
Mr Chugh otherwise your inputs are detailed and studied but I disagree on the point of right of grandson for self earned property.
The concept of HUF will come in operation only if the father in law expired without any will. But once he has disposed his property by will , other heirs have no right.
Bigamy is difficult to prove.
adv. rajeev ( rajoo )
(Expert) 06 March 2012
When the property is self acquired property of your FIL then he can dispose/ execute /transfer to any body. No body has right to question this. AFter the birth of your son it does not become ancestral property. If there was no will or nothing and without making any arrangements of the property the owner of the person dies then his legal heirs or his grand sons can claim.
Tajobsindia
(Expert) 06 March 2012
I disagree to Mr. Chug's bald advice. It is settled law when a property has been purchased by self means by a person it is called "self acquired property" and he can dispose same to person(s) of his choice during his lifetime and or via Will and this Will can be a Registered Will too here.
On the other hand when a property which comes to a person in share from family's property then it is called "ancestral property". A grandson ref. to this query before us has share only in such properties.
However the self acquired property can be disposed off by the persons as he wishes whereas the ancestral property cannot be in ref to this query.
In presented brief grandfather left behind a registered will and disposed his self acquired property in name of his daughter(s). The 'disowning' of his son was probably foresight move during his life time and has no legal bearing in suit matter. Currently the 'son i.e. your husband' returning back to live in reference property is all bze of 'mercy' of his sister(s) on whose name registered will is equated and again this allegation has no bearing to suit matter. The 'grandson' irrespective he is currently 'minor' or 'major' will not get any share at all from his grandfather's self acquired property having registered will in favor of his paternal aunts as per ref. matter of this brief.
As far as "he was not supposed to remarry" doubt / question / advice are concerned law cannot put a full stop and or comma on any ex husband not to get married the next hour as soon as a decree of divorce is signed and announced in open Court by ld. PO. Only thing law mentions in statute books is about Appeal period of a decree / order which is off course 30 days. However as soon as a decree in divorce proceedings is signed and announced on open Court no injunction could be taken then and there by a loosing party nor the loosing party can say "how can he remarry when appeal period is 30 days?" So the meaning of "one should wait 30 days' is bald thought line here.
The second woman is his servant is all that he has to say in open Court as well as this second woman under Oath will also say the same and Law does not put any bar not to have a female servant in reference brief. Bigamy case is very difficult to prove and is a fishing exercise.
However what are the alleged grounds in Appeal matter against the decree (divorce) asked as you say in above brief "after decree he moved back and then second woman came with her daughter to ‘that house in que.’ ?"
Geetanjali
(Querist) 06 March 2012
Mr rajeev/Mr jsdn...i agree with you..this is precisely what i have known...Mr chug i too do not agree with your opinion as even i think that grandson has no right on the self acquired property of grandfather in case of a registered will
Geetanjali
(Querist) 06 March 2012
Mr Tajobs..you have a great knowledge on the subject...Though, the law does not favour me or my son but i am really thankful to you for guiding and advising me correctly. He got a divorce in the trial court and the grounds were cruelity. there was no evidence of the cruelity and probably he got the judgement in his favour by some unfair means. Though we've been separated for 11 years and he is paying me maintanance since all these years but i dont think he will win in the higher courts as "irretrievable breakdown of marriage as ground has still not applicable. What you think? Anyways, yes. He shifted to his father's house in 2006 after the death of his father to stay with his mom and in 2008, we got divorced. I filed for appeal in the high court within a week after the divorce decree and he married last year though i do not have any proof. My question to you is that can i cohabitate with him under domestic violence act as i have not the sufficient means to stay at my parents house due to financial problems.
Tajobsindia
(Expert) 06 March 2012
ha ha (sniggering is not on your reply to me but on such social unfortunate facts we have to deal in/out).
1. Thank you I understand the grounds for Appeal now. But I have not seen HC reversing trial Courts granted decree on mental cruelties (seperation of now 11 years) when no further allegations mentioned in your further reply (means one need to study the decree sheet to understand trail court perception on why they arrived at and awarded in his favor and your adv. is best bet here to decipher the same). Least in my too early an opinion they (HC) will direct trail Court to re-appreciate evidences and make the matter time bound if your side agitates / presses for the same. However one can hope that and why not loose sight of hope in such social maladies!
2. IrBM is no ground till date (below SC level is what I mean here) but suppose mediation happens on direction of HC then I can see lots of ray of hope to your unfortunate brief (in terms of revised maint. / alimony) But then there are too many sips between cup and a lip. Let us keep our biasness crossed till then.
3. No. DV does not stand a chance at such belated stage (decree was awarded in 2008 and today is 2012) as your ex will use recent case ref. Grewal's case (of SC) and throw in CrPC limitation act towel to the ring and there goes the hope to cohabit with an unwilling spouse and anyhow it is next to impossible in presented briefs (registered will etal) facts before us.
From all these emergence why donot you file for Alimony (s. 25 HMA) and or change of circumstances even if the matter is under stay in your favor. You will get 'interim relief' if last line relief is what is worrisome now-a-days. Also if your son (who is turning major) is planning for some professional course / higher education then yes maint. for sustaining higher education on his behalf can be asked (irrespective if he just turned major) you being his natural guardian. Catena of very recent decisions are in your favor to the extent interpreting last line above.
Adv.R.P.Chugh
(Expert) 06 March 2012
Learned Mr.JSDN, Adv. Raju, Ms.Geetanjali & Mr.Tajobs - Please excuse me for the error - With all humility I stand corrected.
Shonee Kapoor
(Expert) 06 March 2012
Repeated query.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Raj Kumar Makkad
(Expert) 07 March 2012
The detailed reply of tejobsindia is legal and correct in the light of the fact so the case.
Deepak Nair
(Expert) 07 March 2012
Thanks a lot for correcting me too.
V R SHROFF
(Expert) 08 March 2012
Geetanjali, did u troubled your in laws?
y u failed to win their love?
self acquired property of my father-in-law was given away, so no right of yours or your son , nor the house owned by your x husband, so no right.
if ur h earn more, u can beg for more money, and court may grant you.
y u want to live with a man who and his family disliked u. , thrown u out of their house.
Mr Chugh , I too disagree on the point of right of grandson for self earned property already give long back to d.
Geetanjali, with smiling face, u only think negative, it don't work. Try to keep others happy, they will please you, after few years.
