Absconding husband. need urgent help

The querist has been deprived of the correct solution as this thread has deviated and has become a debate.

@Uma, I would strongly advise you against filing a DV case. You need to first decide on what your end-goals are. Clearly, continuation of the marriage under the circumstances described by you would be an unrealistic goal. So, practically speaking, you are going to end up in divorce. Accept this and formulate your strategy accordingly and work towards accomplisthing your objectives without any emotions involved. The advise provided below does not question the allegations made by you - That is for the Courts and the Police Department to decide.

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There is really nothing that DV offers that you cannot get in the Family Court under purely civil Acts. The notion that DV provides fast relief is only on paper. Filing a DV will only duplicate your legal work load, not to mention legal fees.

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If you have complaints against your husband which are criminal in nature, approach the police station and if you have evidence, you will prevail. If you do not prevail, he can use the outcome against you to seek divorce from you easily - mental cruelty been one of them. And thats for starters... defamation suit is also likely. 

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As for seeking an injunction, presuming that you are seeking a temporary one to start, you can most certainly get it provided you are able to justify the legal basis for seeking injunction. Factors include irreparable damage to you if the injunction is not granted... that you are most likely going to prevail in the final ruling... that the "balance of harm" is in your favor... etc.  There is amply material on this subject on the net.

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Even if you do get injunction, it can only be against your husband. The bank cannot be adversely impacted by any dispute between you and your husband. The bank is a non-party in this matter. If EMI is not paid, at some point it will call in a default and seek possession and the Family Court or the Magistrate will be out of jurisdiction to do anything about it - Unless the bank has somehow conspired with your husband and you can prove it.

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For the sake of emphasis, let me repeat: All of the above relief you can get without the need to file a DV case. If a divorce petition has been filed against you and you too want divorce, you can not only oppose his allegations, but you can file a counter-suit to seek divorce based upon allegations against him. All this will be under one title, docket number, etc. It will avoid duplicity of proceedings, save your legal bills, help both of you to focus on the issues and save significant time. The only losers in this approach? Advocates!

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Hope this helps. Good Luck!!! 

 

 

 

 

 

Thanks Samir.

Appreciate your help.

Hi,

  Have few queries:

1. Who is the registered owner of the flat? If it is in joint name, what has been your contribution for EMI?

2. Do you have children?

3. You mentioned that you are a working lady. What is approximate difference in your and your huband's salary?

Answers Inline

1. No joint owner. Its in the name of my husband.

2. No childrens but aborted twice with him :(

3. Yes i am working and do receive 15k less than my husband.

 

The solution lies only in domestic violence case.  In domestic violence case, even if you do not have title on the property, if it is matrimonial home, the court has been empowered to provide you residential rights.  Once granting residential rights, if there is apprehension on the part of the court that the property under question will change the hands by transfer or sale or the motagagee bank will resort its right to take control of the property by attaching it and sell it, the domestic violence court will give the stay against such dispossession by the title holder, even though the distressed wife in the domestic violence case has not a title right on the given property.  While granting such relief, the court will not at the first instance does not see whether the domestic violence has happened or not, because in the given circumstances, prima facie the court has to come to a decision that depriving the wife the right given in the domestic violence instantly, would defeat the ends of justice, it gives such an order to the wife.  From the date of issuance of notice to the husband (if he acccepts it is O.K. otherwise, you should insist for ex-parte order), you get the residential order and also stay against dispossession within six months.  So, file the domestic violence case.  There is no other such provision in any law to give such an instant relief.  Even Section 7 of the Family Court Act also does not talk about residential rights but determination of the title rights of the suit property.  Similar is the situation with HAMA.  Hence, I suggest you to go and get a good advocate and file domestic violence case to solve your problems.  If your husband gets annoyed  and file divorce case as you filed DV case, it is nothing but ruse, quite often husbands adopt.  If he does not want to live with you, he will file divorce sooner or later, but he may use your filing DV as an excuse to file his divorce case.  The ball is in your court.

(LAST REPLY)  

I am writing for the sake of those who may visit this thread to seek an opinion about the scope of the DV Act and to assert my strong opposition to any advice to file DV cases if the couple is married.   

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With respect to the current thread, let me emphasise again that there can be no order in a DV case against a bank, to restrain it from taking possession of a mortgaged property for a default on payment - no matter what the dispute is between the husband and wife. Had that been the case, couples who are late in their monthly payments, will just have the wife file a false DV case (most DV cases get dismissed anyway, so are false) and get an injunction, right away, against the bank from dispossessing her! This would enable every married couple to buy a few years of relief from the bank in the event of a default. Right? So any advice that this is possible is misguided...

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Yes, the bank officers can be summoned to produce documents and evidence. However, that is the extent of the Family or DV Court's jurisdiction over the bank in such cases. Nothing more. The Court can order the husband to make payments to the bank but that is not an order against the bank. The Court can request the bank to delay taking over possesion until so and so date... but that will be just that... a request and the bank will be under no obligation to comply. The Bank and the husband are bound by the agreement they signed. The DV Court cannot interfere with that agreement to the detriment of the bank.  If the DV Court does issue an Order against the bank, for a dispute arising between husband and wife, it will be easily reversed on appeal.  

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Also, the Family Court Act has a specific sub-section on injunctions (Section 7(1)(d)) granting the Family Court jurisdiction over "...a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship." This is very broad in its scope and can most certainly be used to get injunctions in any matter, including right to residence or property matters, arising out of a matrimonial relationship. There are scores of judgments available online on injunctions over property rights and restraints from dispossesion given by Family Courts through non-DV filings. However, the Family Court will still not give you an injunction against any bank. In the highly unlikely case that I am wrong and a DV Court can restrain a bank from dispossession, then so can the Family Court through non-DV filings under the above section. Point is: Do not file a DV case. Whatever you can get in a DV filing, you can get in the Family Court through pure civil filing. Filing DV cases only benefits advocates. Focus on all your filings in the Family Court, preferrably in one petition and then file applications to seek additional relief or amend the petition, if required.  

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TO ALL WOMEN: DV Act is a boon alright - not for women - for advocates! True, as the above advocate says: "The ball is in your Court" right now.  File a DV case and the ball will be in your advocate's Court... for a very long time! If a comparison was possible about the monetary benefits, in total, derived by women versus their advocates in DV filings, since the enactment of the DV Act, I am sure that DV advocates have gained a zillion times more than their women clients.

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In all fields, engineering, medicine, law or whatever, always start you analysis from common sense. The rest is easy to understand. This is a perfect example...

 

 

Whatever you can get in a DV filing, you can get in the Family Court through pure civil filing.

Please elaborate on how and what needs to be filed.

HOW TO DRAFT AND FILE PETITIONS WITHOUT AN ADVOCATE

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First decide what you want from the legal proceeding. Draft your PRAYERS section accordingly even though this is to be placed last. Provide an alternate relief, so that the Court can give you something else if the main relief is not granted. Now that you know your goals, put yourself in the Judge's shoes and draft the rest of the petition with the goals in your mind. 

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Then draft all basic facts, including the history of your marriage upto today, in chronological order. Then list all your allegations, again in chronological order, with specificity, including date and time, if available, and make sure that you can sustain them during cross-examination, through documentary evidence and that the opposing party will not produce contrary evidence.
DO NOT MAKE IRRELEVANT OR FALSE STATEMENTS AND INCREASE THE SIZE OF YOUR PETITION. JUDGES LIKE TO READ PRECISE AND SHORT PETITIONS. FALSE STATEMENTS WILL DILUTE THE TRUTH OF OTHER ALLEGATIONS. Lastly, put the title page with name of the court, names and addresses of parties xxx... petitioner vs. yyyy...
In the title page, do not forget the sections under which you are seeking relief (Section 7 of the Family Court Act which lists jurisdiction basis). You can also resort to CPC Rules which also gives jurisdiction to the Family Court. This is the only part that you may have to consult an advocate if you have just started to learn law.

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After the draft is ready, ask some close friends to read. Iterate over it until you think it is perfect.
Then pay some advocate from High Court to review it. Make sure that you locate someone who has represented parties in Family Court appeals. At this stage, he should charge you nominally to just review the petition especially so because he is not going to be the advocate on record. He will ask for cash payment and that is fine. Make changes as suggested by him if you are convinced by him as to why these changes are to be made. Do not make changes blindly.

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After you have a few copies ready, go to the Registrar or the COurt's office and inquire how you can file your petition. They will give you all the procedural details. Thats it. You are done. You will be submitting something that you know is accurate, complete and is legally/procedurally close to perfect. 

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Please take it forward from here... GOOD LUCK!

you say your husband is absconding but why? is he accused in any crriminal case ?

you say your husband is absconding but why ? is there any criminal case pending against him?

Hey mr stanly u are just misguiding her , although she is working still she can ask for maintainance u dvact , also for deserting her compensation , also residence order , on the base of her complaint c a w cell where councelling went on . And non payment of emi is again economic cruelty . U file dva than get the summon affixed on all three addreses . And also in local 2 news papers . Thats all . Only Till then pay emi . Y divorce ? No this running away is a strong mental torture . I.e. domestic violence .

Hey i m a lawyer too , these people are only demotivating u , u can even hire such lawyers who charge when u get money from husband . Yes dva is a boon if u file it through an expert lawyer dear . Dont worry i ll help u without any intrest .my email id is advocatehoneey@gmail.com

I appreciate adv chandra shekhar and also mr sameer . U both are genuine people . Thx for correct advice dva