Pavan Sandur (Management Professional) 05 August 2012

How to stop wife(498a) from grabbing property.

My 498(a) wife has got a ex parte decree from court for my property to be divided by meets and bounds(dont know what that means) on behalf of my minor son (10 yrs) stating that I am spend thrift and drunkard.

Unofficial enquires regarding the decree shows that the decree was passed as the summons to me/my mom/brother were intensionally returned. Address for delivery of summons is for a house which was vacated sometime ago and the summons to my brother could not be rejected by him as he lives abroad and he was not in India on the dates mentioned.

The lawyer I plan to hire and have consulted advises me not to act on it now as after 30 days FDP process will be initiated and summons will be sent again (FDP-final decree process) then we can take up the issue and have the case reopened, any action from us now will raise a question regarding knowledge of decree and no knowledge of court summons.

Property in question is ancestral and we (myself and my family do not deny nor have ever denied the right of my son his legal share of the property)

None of my family lives in the town where the property is located or the case is on. It's partly commercial and partly residential with rental income.

My RCR/IA for child custody case(Dec 2009) aganist my wife is in arguements stage, expecting decree by end of september.

498a case(Jan 2011) by wife, has completed 18 out of 22 witnessess examination/cross exam, only 3 police constables/officers and one Investigation officer deposition/cross exam left.

1. Is this a safe procedure?( waiting till final decree process starts)

2. What timelines will I get between the order and actions to be initiated by 498 wife? is it mandatory that this will be advertised in local papers before any action is taken, if so at what point of time will this happen?

3. Will the 498 wife be allowed to enter the property on behalf of minor son and allowed to manage the property on his behalf?

4. Can a registered WILL from me and approvals through affidavits by my mom and brother that we donot dispute my son's share in the property suffice to mitigate any action from the court?

5. What bearing will the RCR/IA for child custody have if its decreed in my favour? ( asking wife to join me and making me legal gaurdian of child)

6. How can I mitigate this from becoming a full blown case?

Please advise, I'd be much indebted to you all for this.

thanks!!!!

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4 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 05 August 2012

Now since the court has passed the preliminary decree ex parte - the respective share of your son is declared, now your wife would file an application before the court seeking appointment of local commissioner who would partition the property physically (that is called metes and bounds) and passing a final decree. I would advise you to keep a check on the proceedings - court would again summon in my view. It is not without it's hazards - keep a close check.

2. Which State ?

3. Yes, your wife is the legal guardian of the child, and can take care of the property on his behalf.

4. No - It won't - The matter may be sent to mediation for a settlement, in all probability the court has alraedy stayed the property. If it is a dwelling house the court has to give you the option of buying out the child's share, if they seek to sell.

5. RCR won't have a direct effect on this, if your wife is stripped of her legal guardianship - then (3) goes for a toss.

6. See the child has an indefeasible right which you can't deny - the matter can be settled amicably through mediation to prevent it from cutting the property out/

Pavan Sandur (Management Professional) 05 August 2012

Thanks for the detailed reply!

The case is in Karnataka.

I want to delay the proceedings, without any risks as to further escaltion of the issue, till I have a decree in the RCR/IA proceedings. Where I am sure to get gaurdianship/custody of child (Physical or otherwise)-the optimisim is due to various factors which I cannot disclose in a public forum.

My strategy is to bring out the truth behind this venture by my dear wify:

1) bifurcate the issue into (a) legal right of my son (b) intension to own the property through gaurdianship means by wify.

2) by ensureing on record that my son's rights are protected and I am seized of his legal rights and I shall not take any action otherwise and my family is also agreable to this. This needs to be on paper for the courts to consider--will this make the court stop and think twice before giving the rights to the wify?

3) If wify still has issues despite these assurances let her fight it out-- but by then I will have the RCR/IA and 498(a) documentation to prove that all her allegations are a load of bull sh*t and her accusations are motivated to harrass me and my family, and I will be able to support my claims as to her intensions.

Frankly I am not sure if the my current legal counsel(RCR/IA/498) and my wify's legal counsel are hand in glove. Property in question is substantial.Their actions have thrown up more questions than answers.

I have decided to hire another lawyer who is unrealated to this equation to understand how the current setup works and who has which finger in what pie, sureshot my wify or my inlaws donot have the brains or means to think up these strategic moves on their own and suspecting only the opponent counsel is somehow not completing the equation...2+2 is not adding up to 4...so need to bring out the other significant part in the equation.

So what should be my next move....appologies this question is rhetorical...just thinking out loud hoping for a solution to this mess.

Any advise/suggestion would be most welcome.

Sunny (Other) 05 August 2012

Why the hell did you build property of your own?? You should have let your wife do it, this is the mistake men make. Don't you know that shameful one sided laws in this country are against Hindu men?

I would say sell off the property and give her some token amount, don't forget to tell her that you're the giver and she's the beggar.