Residence order in dv

Girija..She is ur brother's wife..how u come here to say u don't want her as she has put a false case against u..Even u r women like her..So think in her place..If she has lived fr 5 days or 5 months.She has all the right to get a residential order...

 

Your brother had tied her 3 knots in max of 5min...to live with her fr life time....Being a women try to sit and speak to both of them with elders and sort out the probelms.... being a sister ..YOu have no right to interfere in ur brother's family-husband and wife matters..

@ QUERIST,

According to DVA 2005  sec 17 & 19 are following:-

 

17. Right to reside in a shared household.—

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

 (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

 

19. Residence orders.—

(1) While disposing of an application under sub‑section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order—

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

 (b) directing the respondent to remove himself from the shared household;

 (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

 (d) restraining the respondent from alienating or disposing of the shared household or encumbering the same;

 (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

 (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

 Provided that no order under clause (b) shall be passed against any person who is a woman.

(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.

 (3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.

 (4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.

 (5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer-in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.

 (6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.

 (7) The Magistrate may direct the officer-in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.

 (8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.

 

So, what ever her false allegation lies and doesn't  have any base,better counter her allegations by denying them,collect proofs against her false statements and go for quash(if you have solid proof against her). But right to residence in share household can't be ignored even though Megisterates have discretionery power in DV cases.They can give such orders if they think so.

@Smita, Totally agree to what you said, indeed one should not get involved in breaking a marriage. Moreover, how can the in laws drive the wife out, just because she is self dependent? If it's this easy, then remove this social program called "marriage" from the society.

My mother had lodged a police complaint against  soon after she left our home stating that she had slapped my brother and verbally abused my mother ..we have her message admitting she slapped ..then she lodged  498a against my family 2months back ..she has a own CA firm..how do we get her income proof?we don't want her in our home as she can file another false complaint ..we dont have any proof that she left our house on her own..how can we prevent her from getting residence order 

Court checks only paper proofs. Until and unless you show paper proof of her income like bank statements, IT returns, your brother liable to pay maintenance and residence to her. However it also depends on Kids and duration of marriage while calculating the same.

Also note, even if DV is dismissed later, it is not a ground for divorce. Only Criminal cases like 498a is ground for divorce and also depends on merits.

At this point, use mediators and settle the matter. Still if you feel you are right, then fight the case on merits.

 

 

@girija....dont worry, such type of accusations are common nowadays, even the judges know that, but to prove that accusations are wrong, the burden lies on her, once she cannot prove that the accusations are true, then your brother can easily get divorce on the grounds of mental cruelty.

being a CA, she will have to submit her income tax returns, you should get a copy of her IT returns, this will show as her income proof, also get proof of her education qualification, and submit all the documents you have in your defence. dont worry, you will come out clean

the moot point here is: All this is going for extortion money purpose, finally the things will get settledown for one time lumpsum payment which she will demand.

regarding residence order: she has to prove that she was driven out of your home forcefully and hence she was on the street, only then the judge on being satisfied, will give residence order, also if the property is on your mother/fathers name, then she cannot enter there forcefully, she can only enter that house, where her husband resides, so if the property is in your brothers name, then she can very well enter into that house, telll you brother to transfer all his properties to your parents name, so that she cannot forcefully enter into any of those properties. 

@girijija...dont  listen to the crap about some feminists here giving moral teachings here....because only the person suffering knows what he or she is undergoing. preachings are very easy to give but i want to tell those people like fightingfalsecase and smita...to get into the shoes of girija and then think and give the moral preachings.................

The house is on my brothers name ..he has drawn a loan and is paying the emi for the house ..our lawyer has asked us to do a gift deed ...we consulted another lawyer  who said that it would be  of no use doing it after she has filed dv ,ur money will be wasted..she has stayed only for 5days ,so how can she claim for residence?another problem is that during counselling at women's  grievance cell my brother has given a written statement that we don't wish to take her back..will this go against us ..my brother is very tensed as our  lawyer said that this can  go against us ..is this true ?

for dowry demand material or documentary are required and proof of burden is on wife for her false allegations

Girija,

You need to understand one thing, in DV your brother is liable for maintenance and residential share to his wife.

However calculation depends on duration of marriage and Kids etc. Even if she stayed 1 day after marriage, your brother is liable. This is gender biased law in India.

Gift deed is irreversible, however she can tell that after filing DV, your brother transferred on your mother's name or any relative which doesn't stand strong on you.

She cannot directly claim your brother's property, she can only ask to stay in the flat.

But remember, court doesn't force your brother to take her or give residential share in your house.

If it is not possible for you to share your flat, you need to pay money for her residence at some other place.

Your brother  can always decline her, even before Judge also but you need to justify that. For example, you can say that she did mental torture by dragging me and my family to police station by loding 498a, which is criminal case and need to explain circumstances through lawyer.

So don't worry on that, fight case on merits.

Also remember, if you don't prove her qualification and source of income your brother is liable to pay her maintenance.

Let me know if you have any questions.

 

 

 

 

 

try to get income tax details from  IT depatment

@girija.........yes, your brother shouldnt have given that statement, it will help her in her case, to say that. " see , he never wanted to live with me, and therefore he drove me out of the house" so that statment can have a reverse effect in your case, you can do a gift deed, before the court restrains your brother from doing any kind of transaction in his property, before the court passes any interim order, he better gift it away, anyway gift deed is irreversible, hence in the end he might have to pay the rent for her stay. so collect her income proofs, that is the main point here

@fightingfalsecase and Smita,

Who has given rights to wife's parents to intefere in their duaghter's life? Is that genuine? if not, then why are you questioning to Girrija? Instead of pointing fingures to someone else, look into the reality, why they reached to a conclusion not to bring her back....What might have happened? Being a lady / women (Girijia) her self thinks that the wife of his brother should not come back. Why??????? Girija's family might have suffered a lot becuase of her brother's wife.

 

Why can't both you ladies do not want to look into the other side of coin?

@Girija,

Do not worry, this false DV lady will not be able to prove her allegations, if she tries to file false allegations. Fight on merits and show her heels bl**dy.