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498a, Dowry charges along with 125

Page no : 2

Parth Chandra (none)     23 February 2010

Just ot update you all on proceedings....My wife has filed for my daughter's custody....My lawyer says that we would have to give her as she is only 3 years only...The hearing is going to be in next week

My questions are...

1) My wife along with her parents left my daughter at my fathers home (deserted her) before 1.5 months....now how can they claim custody?

2) She might be doing it to get higher compensation under 125 (which she has thrown at me)....what amount I will have to pay to her extra for my daughter.

3) Would the court ask the child for her like or dislike and can I do something to teach her so that the court can give her custody to me?

Please help this is urgent.

Parth Chandra (none)     23 February 2010

Someone .... Please advice ...

Hardik Mehta (Family Counsellor)     24 February 2010

PC,

Where did she file the custody? If she has filed the custody at her home town, then you can apply for the dismissal. Otherwise, you need to counter the custody of the child and ask for the status quo to be maintained, meaning that the custody of the child should not be disturbed till the case is over. Then the welfare of the child is seeing into consideration. Dont teach anything to the child, but say that she is under your care and the welfare is good with you. There is no rule that the child custody is given to mother, but most of the times the mother gets the custody. IN your case, since the mother has abandon the child to yoru place, you will get the preference for the custody. Maintaining the status quo is important. She can claim custody at any time. My initial post suggested you to file the custody immediately, now the time has not gone, counter file with the child custody case.

For maintenance, she may not get the amount if the initial facts you show that she was living in adultery and has deserted the house. THe court will also see her conduct in the case.

1 Like

Hardik Mehta (Family Counsellor)     24 February 2010

1) As we both used to live together in Navi Mumbai and only my father used to visit us for a month or so once or twice in a year......How can I collect evidence that neither me nor my father / brother (who have never been at my house) have torchur her?

Ask her to prove. Sometimes you senial of the statement is enough and also since you are staying separately, the reasonable doubt is not caused for torture. Occational visits is not the torture.

2) they are claiming that we have been demanding dowry from them...how can I collect evidence to prove them wrong as my father used to call at my home almost every day to talk to my daughter?

They have to prove the claim first. Inform the court that this is the fact which she has trying to hide the adultery, most common tool used by the women to shift the focus and file false cases. You dont have to collect evidence of such claims. Mere verbal statements for the demand of dowry is not cruelty of the level of 498a.

3) They have also put some other section like we were threating her of killing...how can I  collect evidence against it?

Which sections, IPC 506? Ask her to prove first and you simply have to deny. She has to tell the date, time and the place where the threat was given. If this is not given, then simply deny the allegation. Many times simple denial of the allegations puts the opponent in acward position if s/he does not have the proof. You dont have to prove everything. She has made the allegations and she has to prove the facts of the allegations made are true and that too beyond the reasonable doubt.

4) They are saying that they have given x, y, z along with 28 tolas of gold....from which x,y,z are correct but 28 tolas is wrong...how can I collect evidence against them? Moreover what if they provide a false list of jwellery or list which they have kept in their loker and never gave to me or my parents? ... How can I collect evidence against them?

This is her lawyers brain and along with the list of jewellary they have to give the receipts of the purchase with design reference. If the jewellary is anchesteral, then some photograph has to be shown. Most important is that they have to prove that the jewellary is given to you and your family as the entrustment. Without the same, you cannot be charged.

5) What if their relatives, friends becomes their false witnesses....and says that we have demanded or done something in front of them or on phone ...then how can I collect evidence against them.

Whose relatives and friends? If it is her relatives and friends, then they are the intrested witnesses and not the independent withnesses. There should be the independent withness. All that needs to be proved beyond the reasonable doubt for conviction.

6) they have alleged me that I asked my wife to abort my daughter when she was preganant.....how can I collect evidence against it?

They can say anything, but their conduct by leaving the daughter with you shows that she herself was not intrested in the child and if you could have ever said this (taking on the face value) then she could have easily aborted the child. The proof that the child is born shows that you are innocent.

Hardik Mehta (Family Counsellor)     24 February 2010

Harsh,

I would suggest you to advice the persons in this forum rather than in person so that everyone will be able to know your views. Take the story as prima facie and give your suggestions. If you have any doubt or something is not clear, let us also know so that others can also benefit.

Parth Chandra (none)     24 February 2010

Thanks Hardik, They have filed for custody at my native (where they left the child at my father's house)..

I just want to ask .... Should I file a separate case to counter the custody to maintain the status quo or I can counter her custody in the second hearing (of custody case filed by her)

Secondly ... though she has confessed her adultery .. and I know the names of some of his boy friends...but I may not be knowing the address or telephone as they have changed them...moreover I don't think her boyfriend will come and be my witness against her...in that case how can I prove her adultery and avoid the maintanace.

Thirdly ... as I mentioned in this forum earlier...my salary is around 55000 and the take home is around 45000 after tax...from which I am paying 22600 as EMI since August 2008 (well before this case)...6000 as rent (which will not be there once I get into my new flat sometimes next month)....I am also a heart patient and need to go to various medication worth around 2000 p.m ... this all leaves around 14000 with me p.m from which I need to maintain my food electicity etc....(If child's custody remains with me then her fees, food etc)....now what would be the tentative maintainance court could give to her i) with ii) without my child's custody (assuming that I would not be able to prove her adultery)

I would really be awaiting replies on this as the next hearing date for custody is in first week of March, 468a is second week of march & 125 is third week of march....

Hardik Mehta (Family Counsellor)     25 February 2010

PC,

Yes, you should file the separate case. If your parents come to your place with the child, then you can file the case from where she resides. This will give them to run the case. 

You also need to be very careful in proving adultery. This can backfire you and the telephone or mobile bills can prove your stand. You need to get those bills or numbers from the mobile provider through the court. 

For maintenance, all your expenses will be considered, including the house loan. From the balance you need to give her some amount if she is not working as the interim maintenance. 

1 Like

Parth Chandra (none)     25 February 2010

Thanks Hardik,

1) Sorry for the confusion...but I came to know that they have not filed for custody but have filed under some section 97 (saying that we have prohibited the child and restricted her access)....This is at my father's city (This is evident that her lawyer is smart enough to understand that if they file it in there place then it would be quashed)...now my lawyer at my native is going to object that saying that the child is with her father and hence there is not question of restricting her access...and custody can't be granted under this section ... they should go for custody case instead of section 97 to get the child....is it appropriate?

2) Moreover .... She has always used pre-paid mobiles...and I came to know that no one can give prepaid numbers call details as no service provided maintain it...is this correct or there is some other mean from where I can get these details?

3) My wife is not working and even if she is working ... she would not give the details (as she is a b.com and has experience as receptionist / complaint call support) in godrej and electolux service centers....Would the family court (in 125 hearing) would ask me to show details of my salary and expenses or the onus of prooving my salary is on to her?....what should be my stand?

4) Can I ask the family court to grant some time so that we both can have a discussion in the first hearing it-self.....I mean how would the initial hearing proceed.

5) I initally thought of filing an RCR...but my lawyer told that she may seek transffer of RCR to her place as our marraige happened in her city...Moreover she may ask the court that she is not having money to fight RCR and would appear only if granted money for this case....Is my lawyer's take appropriate?

Hardik Mehta (Family Counsellor)     26 February 2010

PC,

Go for the child custody, as this would benefit you in long run. Then you can also give the visitation rights to your wife atleast once a month and so your case u/s 97 will be dismissed.

2. It is the wrong belief that the call details are not available with the mobile service provider. Whenever the call is made, the money is deducted from the pre-paid list and this is set off in their internal system. So the call list has to be given. Moreover, use RTI to find out the details, and if not then get the same using CrPC 91 from the mobile provider.

3. IF you are able to show that she is capable of working and was working earlier, then this would reduce the maintenance to the great extent, sometimes zero. You just need to show that she has come with unclean hands. The court will not ask the salary details till they do not press for the same. In that case you should ask to go the case on merits and first decide if the maintenance should be given to her or not? In this case, you will not have to give the salary details till then end of the case. Do not give unless asked and let your lawyer handle the same.

4. Dont ask for the time. File the counter and let her file the counter. Then after 2-3 dates ask for meditation.

5. She can seek transfer - Yes, but if she does not have enough money, then she can apply for legal aid. If she has the money for transfer, then she will fight the RCR.


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