125 cr.pc case filed at family court for maintenance

Hi,

Please find question wise answers to each of your questions.  Please note that the answers are basis the limited facts given by you and under the assumption that your marriage was solemnised under the Hindu Marriage Act, 1955 (HMA).  

1. I received the intimation letter stating hearing is on 17th December, if do not go first time on 17th any issue? Can I send my brother to appear in place of me. 
   
   You will have to appear before the court on the scheduled date either in person or through your authorized representative.  Not appearing before the court can be detrimental to your case and the court may also pass an ex-parte order.  Hence, it is recommended that you appear on the scheduled date or hire a junior lawyer to appear on your behalf.

2. We want to file a Child custody case at Bangalore and also for Divorce under cruelty as a reason? Since the Maintenance case if filed at Hyderabad, Can I file child custody and divorce case at Bangalore?
   
   Jurisdiction of divorce petition

   If your marriage was solemnized under the Hindu Marriage act, 1955 (HMA), then as per section 19, the jurisdiction of filing the divorce petition shall be with the District Court within the local limits of whose ordinary original civil jurisdiction:

   -          The marriage was solemnized, or

   -          The respondent at the time of the presentation of the petition resides, or (please note if you’re filing for the divorce, your wife will be the respondent here)

   -          The parties to the marriage last resided together, or

   -          In case wife is the petitioner, where she is residing on the date of presentation of the suit, or

   -          Residence of the petitioner in case the respondent, at the time of filing the petition, stayed out the territory of India or has not been heard of as being alive for a period of 7 years or more

   You can file for divorce in Bangalore only upon satisfaction of any of the aforementioned conditions.
   
   Custody of Child

   Only the place of child’s residence shall be considered as the jurisdiction for contesting custody battles.  This bar on jurisdiction has been created under Section 9 of the Guardians and Ward Act, 1890.  Accordingly, the custody case will have to filed at Hyderabad only.  

   However, since your child is under 5 years of age, the custody shall ordinarily remain with the mother

3. There is a complaint files by me and mother during 2019 at Women Cell, Jammu for domestic voilence created by wife. Currently the case is not active but the complaint is registered two years back. Can my mother initiate the Domestic Voilence case on my wife? Wife thrown out of me and mother and stayed in my flat where I was paying the rent. Also wife defamed my name creating verbal fights at my workplace and slapped infront of my colleagues. Also she behaves very cruelly with my son, he gets scared with her behaviour. 
   
   As per Section 2(a) of the Protection of Women from Domestic Violence Act, 2005 (DVA), an aggrieved person refers to ‘any woman’ subjected to domestic violence with whom she shares a domestic relationship with.  However, section 2(q) concerned with the definition of respondent defines the term in a very narrow sense.  It refers to ‘any adult male person’ who has been in a domestic relationship with a woman as the respondent.
   
   However, the Supreme Court (SC), while deciding a matter in the case of Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors has clearly declared that the words adult male in section 2(q) of the DVA would stand deleted as they’re inconsistent with Article 14 of the constitution. Accordingly, your mother can file a case a case of domestic violence against your wife.
   
   Now coming to the time limit for filing a complaint, there are conflicting views on whether filing of a complaint under section 12 of DVA is subject to the limitation provided under section 468 of the Code of Civil Procedure, 1973 (CrPC).   The Allahabad High Court recently in the case of Trilochan Singh vs Manpreet Kaur categorically said that neither section 468 of CrPC nor the limitation can cast any period of limitation for the purposes of filing a case under section 12 of the Act. 
   
   However, SC in the case of Inderjit Singh Grewal versus State of Punjab and in the case of Krishna Bhattacharjee versus Sarathi Choudhury and Anr has opined in the contrary.  This maybe become a point of contention by the respondent as your case progress and the court within whose jurisdiction the case is filed may become of relevance.  Given this, it is strongly recommended to communicate with your lawyer and decide the territorial jurisdiction before filing complaint.  
   
   With regard to your claim of defamation by the wife, you may consider filingg a case of criminal defamation against her under section 499 of the Indian Penal Code, 1806 (IPC) and substantiate your claim with necessary evidence in support of the same.
   
   Finally with regards to cruelty meted out to your son, you can file a case against the abuser under section 75 of The Juvenile Justice (Care andProtection of Children Act), 2005 and also report the incident to Child Welfare Commission.

4. Wife recently purchased house in Andhra Pradesh without my knowledge and just informed me one before registration she bought a house. She has own house and gets rental income. Also she has 40 lakhs fixed deposits in the bank which generates monthly interest for her survival. She also qualified woman with 8 years worked as financial executive at Hyderabad and Kuwait, Qatar. Kindly suggest me what are chances for me to pay the maintenance for a qualified woman having sufficient income.
   
   As per HMA, either of the spouse are entitled to claim maintenance, but the lawin this regard favours the women more and hence you cannot be absolved from the obligation of paying maintenance to wife on the grounds that she can maintain herself or has higher income/ bank balance than you.
   
   This stand has been time and again taken by various courts across the country.  Howver, the quantum of payment can be significatly lesser if you are able to prove your wife's economic well being and a steady source of income before the court.  
   
   The litmus test here would be if the money the wife is earning is sufficient to maintain and support herself as opined by the Hon'ble Supreme Court in the case of Chaturbhuj v Sitabhai. 

5. Have verbal recording, where she was fighting with mom and abusing her asking her to die. Similarly in the recent visit to matrimonial home, she behaved similar manner, infront of landlord she mentioned she is praying god for my sudden death (either by accident or by organ failures due to diabetic). Suggest me how to deal the issue? What case I should file on my wife, so that it is not affecting me and my government job.
   
   Please refer to criminal defamation under iPC mentioned above.  

Best regards,
Megha