Summon in dv act can be challange @not chargesheeted in 498a
amarsaxena
(Querist) 08 April 2015
This query is : Resolved
Hi fellow members, needs your advice and some judgements to fight DV and 498A case
brief fact:
Marrieed in 2006, wife qualified as CA and MBA finance working in PSU at managerial level, after birth of child wife went to stay with their parents in 2011, not ready to join matrimonial home after many efforts.
In June 2013 sent mail with draft application of mutual divorce which i refused to entertain for sake of child's welfare. later there family sent sms to my parents for dire consequences (sms preserved) for not signing divorce. and in sep 2013 wife filed divorce case in my city got summon in feb 2014.
March 2014 she filed complaint before CAW in her city i appeared in CAW proceeding and objected to continue proceeding in CAW since by that time mediation was going on in family court in divorce case and difference was only on the ground of custody of child and visitation right where mediator inclined to give me visiting rights twice in months against my demand of four times.
on the advice of police wife withdrawn divorce case and CAW complaint culminated into FIR u/s 498A and 406 against me and my parents, myself taken regular bail and after investigation charge sheet filed only against me, no chargesheet against parents so only charge framed against me and matter post for evidence.
i filed suit for divorce on the ground of cruelty and desertion
have plan to (1) file girl child 3+ yrs custody and interim visitation and (2) defamation against all the family members in my city
after that wife filed application before protection officer under DV act in sep 2014, both appeared she wanted to join me on condition that i shift to her city which i refused and said i want divorce since she filed false 498A
April 2015 received summon in DV act in the name of all the parties mentioned in 498A 406. allegation are same in 498A and DV act case, no supporting proof and Domestic Incident Report annexed with application.
my query
should I, how and where, i can challange summon issued against my parents on similar allegation where police already investigated the said allegation and choosen not to file chargesheet in 498A 406 case.
is there any judgement on this ?
whether any limitation applied for filing dv complaint after 3 years of sepration, where suggestion came from wife for mutual divorce, then divorce petition later withdrawn with liberty to file in her city, false 498 A case and when failed to extarct anything filed dv case
thanks and regards
Devajyoti Barman
(Expert) 08 April 2015
1. Since both DV and 498A proceedings are different mere similarity of facts or pending investigation in 498A case is no ground for challenging the summoning order. You can do so but unlikely to meet with success.
2.There is no limitation to file DV case. it is a continuing wrong and can be filed at any point of time.
amarsaxena
(Querist) 08 April 2015
yes Dev, proceedings are different but my point is
first in 498A police already investigated the allegation and found no merit and not filed chaegesheet against parents
once allegation investigated in 498A and found baseless by the police how on same allegation same court subsequently issue summon in DV act to parents,
the DV case has been filed after filing chargesheet and framing of chrge only against me
Rajendra K Goyal
(Expert) 08 April 2015
Summons can be issued as it is separate case.
ajay sethi
(Expert) 08 April 2015
agree with Mr barman
Devajyoti Barman
(Expert) 08 April 2015
Both the cases can continue. There is no difficulty.
You are running after a merit less topic.
Dr J C Vashista
(Expert) 09 April 2015
@Amar,
Both are different governed by different acts and both shall be adjudicated/ prosecuted separately, there is no legal infirmity.
Addressing an expert by first half name, whatsoever you may (which you have not disclosed in your profile)when you are seeking his/her advise and guidance, is unethical and not acceptable.
SAINATH DEVALLA
(Expert) 09 April 2015
Despite arguing continuously how to respect the experts and how to address them, some adamant querists tend to behave in a very bad manner.This has too be stopped by the admin LCI.
T. Kalaiselvan, Advocate
(Expert) 11 April 2015
Agreed with the views of experts. She can file a DV case by including all those who have been excluded i t 498a case, that is natural, you cannot change the mentality of these people because they have decided o take revenge at any cost and by foisting cases with all possible false allegations. Since you have concrete evidences in your side including the withdrawal of previous cases, this DV case can be properly challenged in the same court during trial.
