Time frame to file dv case after physical separation

DV case is not maintainable after 1 year of no cohabitation. You may refer apex court judgement in Inder kumar grewal case delivered in Aug 2011.

regards ASHOK

Yes dv case isnot maintainable after one year 

https://www.lawyersclubindia.com/experts/Maintainability-of-dv-after-1-2-years-separation-desertion-257341.asp#.UZ88C9Knxpw

as already such issue was disscussed in our expert forum 

@k mahesh, and ashoksrivastava....thank you for your valuable opinion, hence does it mean i can request the court for a dismissal of the case due to the period bbeing above one year? citing the Inder kumar grewal case delivered in Aug 2011.

thanks

1.    I differ to opinions of @ Ashok Srivastava and @ K Mahesh citing a particular (Grewal's) SC ref. applicable in your brief.

2.    I say in given facts as in this query DV is maintainable as parties divorce has not taken place if a particular (Grewal's) SC ref. even if is quoted.

3.    But I  add to above and say in given facts DV is not maintainable on jurisdiction grounds as all alleged to be incidences are that of matrimonial home which is in different State. No domestic violence took place there ! Did you go there to talk to your wife? Did you even make social media contact in her home State? Did you write her a Indian postal serviced Letter? if no then how her State has jurisdiction ask the Court? SC and various HC's in India throws out DV complaints of Wives when she leaves her home which is in US or Europe or outside India and after comign back in Indian soils they file and Court at the time of throwing such Complaints says it should be filed in that Country and not here in India, same logic applies here with our desi abalas, why should it not I say! Violence as envisaged under domestic violence Law is never conceived to be ‘continuous violence’ nature in reference to this query and also refer to definition of 'violence' as envisaged in IPC. I mean violence is violence it is not apple and oranges when it comes to IPC and under quasi criminal laws. A slap is a slap for meaning  - interpretation of violence, it cannot change color when IPC used and when CrPC used.  Now, here is a case for some reasons a weaker spouse leaves her matrimonial home which is in other State of India and the left out spouse has made no contact instead filed divorce first and serviced the Notice of Divorce and after that a complaint under DV is filed with hint of RCR – now for any prudent person even per se careless inerpretation of chain of litigations can it be said that violence allegations which happened in a domestic relationship nature are continuous? I simply say NO. If someone here say YES  then bring across table how citing each Sections of prayers that this queriest placed in his opennign thread in reference to only this query atleast instead of giving faulty generic gyan.
Some half a dozen months back I have already analysed DV Section by Section refer to such multi page discussions and make notes accordingly.
If she has to file DV Complaint case she has to use your State’s jurisdiction. Why? Suppose she succeeds in right –to- residence ask MP Court will local Court send local Police to different State to secure such Protection orders which is never heard of atleast in a DV case?.

4.    RCR case can be dismissed citing certified copy of DV showing ‘scheming spouse’; one side she wants to stay and in same breadth asking protection Orders under different heads which is not harmonious to matrimonial cases such as quasi criminal DV and civil RCR case.

5.    It is not clear from this thread where she files RCR + S. 125 CrPC?

6.    It is also not clear from this thread where you have filed Divorce suit matter?

7.    It is strange that she has not transferred Divorce case to her State if I assume RCR + S. 125 CrPC + DV are filed in her State?

8.    As far her education is concerned MP State High Court itself has said highly educated spouse is disentitled for maintenance which every other State spouse takes reference of to dismiss her claims so use the same.

9.    Further ref. to your meager salary is concerned vis-à-vis her dream monitory claims you have to strategise how and when and where to use what and all these comes if you seriously make notes of reading all similar discussions in past in same Forum among various members instead of daily asking more or less same questions with little twist here and there. Yours is not a unique situation as demanding separate replies as same has been undergone by several queriest in say past 2 years here in public forum and all such queries were well discussed.

Hence read one by one past discussions – make notes or bookmark those discussions for future reference and if you feel you have unique question then ask we will satisfy your query with correct legal provisions.  

My View is that the DV case is not maintainable on grounds of jurisidiction and hence ought to be dismissed irrespective of the fact wether Divorce has been granted or not .  

There is also another judgement by Roshni Dalvi of the Mumbai high court but i dont think so those facts and your facts go hand in hand in order to stress on it . Here is the judgement .

Further to state a Judge can grant an order or dimiss the petition based on his fancies . And they would have to than go in for an appeal in a higher court .

Bombay HC: Relief under DV Act only if wife in domestic relationship & hence it has to be filed in reasonable time.

Section 23, where ex-parte orders can be issued, that makes it a circus company.

It has to be noted that:

@helping hand, TAjobs, stanley, and others,

Thank you all for your valuable advice. appreciate your cooperation....

@Helping hand,

Sir, with regard to the reference you gave of section 27 about the jurisdiction, does it mean she can also file it in her place of residence that is MP, even after a year has passed and  no kind of voilence ever took place in her hometown jurisdiction ?  as TAJobs advised that the jurisdication has to be the place where the alleged voilence took place.  got a bit confused about this section 27 about the jurisdiction issue.

Thanks, appreciate your advice. 

Originally posted by : no pain no gain....
	@helping hand, TAjobs, stanley, and others, Thank you all for your valuable advice. appreciate your cooperation.... @Helping hand, Sir, with regard to the reference you gave of section 27 about the jurisdiction, does it mean she can also file it in her place of residence that is MP, even after a year has passed and  no kind of voilence ever took place in her hometown jurisdiction ?  as TAJobs advised that the jurisdication has to be the place where the alleged voilence took place.  got a bit confused about this section 27 about the jurisdiction issue. Thanks, appreciate your advice.

Read again Section 27.

It clearly states what is jurisdiction and where and when DV complaint can be filed.

That's No.1

Second is giving citations, I have also given you one such citation, where husband is telling the court that Delhi was not the place of wife's residence, she is just residing in sister's place and has filed DV case to harrass the husband.

For that to be proved, that she has filed one complaint which is not sustainable in the eyes of law will take time.  Remember all citations are of HC and above HC ie SC.  Just try to imagine how much time it would have taken for the parties to get such n such order.

No doubt when you are not residing together how can domestic violence can take place.  She is in MP and you ar in Poona, how can domestic violence take place.  But one is forgetting, that  such case can be filed for what happnd while you both were living together.  Bottomline is it takes a lot of time to prove it, that too with Section 23 in place which is also included in the DV case it makes it rather tough for you to prove, judge will pass any order for residence with protection, and tell you can go for appeal, as DV case should be finished within 60 days, he will try to wash his hands of the case like this.  And your are not in some forin country to have jurisdiction issues, you both live in India only.

Read Bhanot judgment........no 1 yr time limit

Originally posted by : Tajobsindia
	3.    But I  add to above and say in given facts DV is not maintainable on jurisdiction grounds as all alleged to be incidences are that of matrimonial home which is in different State. No domestic violence took place there ! Did you go there to talk to your wife? Did you even make social media contact in her home State? Did you write her a Indian postal serviced Letter? if no then how her State has jurisdiction ask the Court?

Tajobs Sir,

My wife has been living separately since 14 months but during this period I have constantly sent Emails  to her and she has replied NONE.

1) Can she use those emails against me to avoid this 14 months benefits :-) ? Will her DV be mantainable now?

I am planning to file divorce and want to understand what all cases will I have to defend ?

Google this judgment:

SPECIAL LEAVE PETITION (Crl.) NO. 3916 OF 2010
V.D. BHANOT … PETITIONER
Vs.
SAVITA BHANOT … RESPONDENT
by
ALTAMAS KABIR

It has put an end to ur stand that "Dv can not be filed after 1 yr of separation"

Rest "what she can use & how"...........cannot be generically answered. See her petition & discuss allegations which she has put

Dear Tajobsindia,

In DV act it has been mentioned that a wife can file DV case even from a place at which she temporarily resides. As such she can comfotable use her Paternal home as temporary home & file case there even if no cause of action has taken place there.

Pls enlighten on this point.

-mycent

@nopain no gain

In Bhanot's case case magistrate had taken cognizance after 1 year 4 months (" and till 4th July, 2005, they lived together. Thereafter, for whatever reason, there were misunderstandings between the parties, as a result whereof, on 29th November, 2006 wife filed domestic violence case"). Strangely the husband didn't raise the plea of time limitation under crpc 468. It may be noted here that Inderjit singh grewal's judgement was delivered in aug2011. Notwith standing all this there is another draconian section in DV act viz subsection 2 of section28 giving wide powers to court to lay down its own procedure.

" Section 28 of the Domestic Violence Act 28. Procedure.-- (1) Save as otherwise provides in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 , 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). 5 Cri. WP 310/2012 (2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under sub-section (2) of Section 23."

Bombay HC in Shaikh Ishaq Budhanbhai vs (Original on 8 August, 2012 (Bench: U. D. Salvi) case didn't considerSC observations about time limitation in Grewal's case to be binding due to powers conferred by section 28(2).

On the other hand Rajasthan HC has accepted SC's observations in Grewal's case about time limit of 1 year in Nishant Hussain vs Seema Saddique & Anr on 21 September, 2012 case.So I think this matter of time limit of filing DV is still not settled. If case is filed in RAJASTHAN the magistrate will lay down procedure(if required) in conformity with HC judgement. In other states it might be discretion of court if in place of considering crpc468 court for some reasons want to lay down its own procedure. To sum up as per the bareact, section28(1)makes crpc468 and time limit of 1year applicable but simultaneously section 28(2) gives discretionary powers to court making this time limit non binding. Ultimately HUSBANDS ARE AT THE MERCY OF COURTS. Regards ASHOK