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Sushant   19 March 2016

498a and dv case allegation

Is DV case maintainable after 1.5 years long physical separation? My wife left me with my 01 month old son against my will to her parental house 1.5 years back. She has not returned even upon repeated requests. My parents live separately in their own house 1200 Km away from my place and spent very very little timespan with my wife. My wife has not kept any contact with us and denied all information about well-being of my son. She has neither visited my parents house in this period. 6 months ago she threatened me on phone about lodging false 498A and DV case on the ground of mental torture. We never demanded dowry any time from them and I can prove that. Rather I have sent Rs. 1,20,000 for the expenses of my son and wife staying in her parental house. Please clarify:

(1) Who does bear burden of proof in false 498A, the petitioner/respondent/law agencies??

(2) Who does bear burden of proof in false DV, the petitioner/respondent/law agencies??

(3) Who does bear burden of proof in false 406, the petitioner/respondent/law agencies??

(4) Due to her such nature and constant abuse, I have stopped even telephonic conversation since 5 months. Still can she maintain DV case against me/my family after such a long gap and without any valid proof?? She has not yet lodged FIR as per my knowledge.

(5) Is it possible for her to lodge a complaint to police stn/court in the city of her parental house even without my knowledge/me getting informed?? Is it mandatory for the law agencies to ensure that the respondent is informed about the lodged complaint or can it be manipulated to suppress the summon???

(6) In 498A case, is there any prima facie police enquiry mandatory before any FIR/arrest takes place or police can outright arrest me or my innocent parents staying abroad on anyones fake 498A allegations??

(7) How can I immune myself against any other possible fresh fake allegations by my wife if she happens to agree to co-habitat with me in future?

(8) Is it safe to call her on phone or go to her parental home to meet her and meet my son?? 



Learning

 8 Replies

Laxmi Kant Joshi (Advocate )     19 March 2016

Dv case after a year of incident or seperation is not maintainable in the court until it proves that dv is still going on, 2.for each and every criminal case burden of proof lies upon the complainant 3. Before registering fir in 498a case police will investigate the complaint 4.if she made any police complaint against you then police will call you for investigation, 5 .if she filed any case in the court then you will get the summons from the court. 6.she can file cases against you from her parental place .

saravanan s (legal advisor)     19 March 2016

Dv case after a year of seperation is not maintenable.record her threatening calls and keep it safely.also record whenever you make effort to reconcile which she eventually turns off.if she stays more than two years like this in the parents house then she is considered to have deserted you.based on that you can file contested divorce on grounds of cruelty and desertion.suppose if she returns back to the matrimonial home and you are wary that she might file false case on you file an nc in the police station regarding this.

saravanan s (legal advisor)     19 March 2016

Dv case after a year of seperation is not maintenable.record her threatening calls and keep it safely.also record whenever you make effort to reconcile which she eventually turns off.if she stays more than two years like this in the parents house then she is considered to have deserted you.based on that you can file contested divorce on grounds of cruelty and desertion.suppose if she returns back to the matrimonial home and you are wary that she might file false case on you file an nc in the police station regarding this.but for the sake of the child try to settle the issue amicably.

saravanan s (legal advisor)     19 March 2016

Dv case after a year of seperation is not maintenable.record her threatening calls and keep it safely.also record whenever you make effort to reconcile which she eventually turns off.if she stays more than two years like this in the parents house then she is considered to have deserted you.based on that you can file contested divorce on grounds of cruelty and desertion.suppose if she returns back to the matrimonial home and you are wary that she might file false case on you file an nc in the police station regarding this.but for the sake of the child try to settle the issue amicably.

(Guest)

Either you are plain stupid or ur a emotional fool.  1lac 20 thousand sent to wife? And she is threatening to file 498a.  Better get rid of her asap.  File RCR asking her to come back in a week or two. win RCR, file divorce after 1 year completion after winning RCR.  Right now immune urself and ur family by filing RCR and u wont get arrested if she fiels any stupid cases on u.  

RCR and Divorce are the only cases u can file against her, she can file 498a, 125, 24 hma etc etc etc.

fighting back (exec)     20 March 2016

I differ from others in their opinion on DV maintainability, DV is verymuch maintainable even after a year of seperation. their is no clear cut definition under any law or in any judgement that DV is not maintainable. there are judgements that say that though it is argued that DV is not maintainable, it is very much possible that DV might have happened even during the separation period. hence it is a completely wrong notion that dv is not maintainable after a year. 

yes, the burden of proving the allegation lies with the complainant. 

Sushant   21 March 2016

I contacted a lawyer who is suggesting me to file U/S 9 and 406 immediately against my wife. According to him it will give me legal immunity against false 498A case if lodged by my wife in future. How far it is valid??

I have searched through the website of ecourts.gov.in to locate any pending court complaint against me but found none till date. Do we get up to date details of any complaint lodged in Family/district/sessions/high court of India through this website?? How far it is reliable??

Probably my wife has not yet put any complaint against me. My lawyer is saying that he will just file petition in civil court u/s 9 and 406 and will not inform about it to my wife right now (he wants to suppress the communication to my wife abt the lodged complaint). Though in future if she files any false 498A case against me then we can use it as a shield saying that we are already running this case for long. Is it possible/having any value if we lodge court complaints but do not inform the opposite party right now? My lawyer is apprehending that if she knows about RCR/406 then she may press fake 498A/323/504/506/DV/DP etc against me and my family.

Is there any advantage of lodging a complaint under sec 9 and 406 but keeping the opposite party uninformed about it? Should I follow the suggestion given by my lawyer?

I have stopped telecommunications or personal meet with my wife in fear of getting charged on mental torture by her/her family members. Which is the admissible legal mode of communication I can adopt to communicate my wife with a request to come back to matrimonial house if she desires so?? Speed post/registered post/email/SMS which one is accepted as a valid mode of communication by court?

Sushant   22 March 2016

I contacted a lawyer who is suggesting me to file U/S 9 and 406 immediately against my wife. According to him it will give me legal immunity against false 498A case if lodged by my wife in future. How far it is valid??

I have searched through the website of ecourts.gov.in to locate any pending court complaint against me but found none till date. Do we get up to date details of any complaint lodged in Family/district/sessions/high court of India through this website?? How far it is reliable??

Probably my wife has not yet put any complaint against me. My lawyer is saying that he will just file petition in civil court u/s 9 and 406 and will not inform about it to my wife right now (he wants to suppress the communication to my wife abt the lodged complaint). Though in future if she files any false 498A case against me then we can use it as a shield saying that we are already running this case for long. Is it possible/having any value if we lodge court complaints but do not inform the opposite party right now? My lawyer is apprehending that if she knows about RCR/406 then she may press fake 498A/323/504/506/DV/DP etc against me and my family.

Is there any advantage of lodging a complaint under sec 9 and 406 but keeping the opposite party uninformed about it? Should I follow the suggestion given by my lawyer?

I have stopped telecommunications or personal meet with my wife in fear of getting charged on mental torture by her/her family members. Which is the admissible legal mode of communication I can adopt to communicate my wife with a request to come back to matrimonial house if she desires so?? Speed post/registered post/email/SMS which one is accepted as a valid mode of communication by court?


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