Legal Question in Criminal Law in India

Sirji,

I have been interacting with your good self on the subject of desertion by wife, self earned property, gift deed to a daughter, DV Case and other queries clarified so beautifully. The interim order (1.10.2010) passed by 5th ACMM was fully in our favour (Our first mail queries have been reproduced for your kind reference at the end of this message). We had also brought to your kind notice that she has appealed against it in Addl Sess Judge (Fast Track) which has also been also been clarified by your good self.

Just couple of days ago, the ASJ (Fast Track) had called the R1 (Blind husband), R2 (Sister of R1) for reconciliation / settlement, being their usual first efforts. Day one, we are against any conciliation and wanted to proceed with the case, as her allegations are totally baseless and want the law to take its own course. We also have a detailed IO in our favor dismissing her IR, saying that she has failed to prove even single allegation.

In the course of the conversation informally with Hon Judge, in the current case,

R1 (blind husband) clearly mentioned that he would not go to his wife (15 yrs desertion) as he has lost confidence in her, feels she is a threat to his life and how she is responsible for his present plight and wants to proceed with the case to see its logical conclusion.

Further, the counsel of the appellant made his point saying that the father (no more now) of the blind man purposely/intentionally gifted (2008) the lone house in the name his daughter (R2 here) to avoid it going to the daughter-in-law & grandson, referring the RCR passed in 2007, (interestingly hon. Judge had ordered the husband to join the wife in RCR)

The Hon Judge in the Ses Court has said that he would go through our objections and the documents submitted in our support and would decide on it.

What could/should be our course of argument against this argument pls? We do have a good, young and dynamic high court advocate with great commitment, but your guidance would always be very handy to the young advocate representing us, also, we always feel secured to get your revered opinion at this juncture.

Another important thing is, we are able to catch hold of her earning documents (being a LIC Agent since 1996) with license to do business up to 2014. On an average her earning has been around Rs.11000/- at least for the last 2 yrs. But these details are not certified by LIC, but we have the copies provided by our well-wishers from her Div Office.(Xerox Copies and computer print outs) What could we do to get it certified on our own or will it be done only on the directions of the Hon Court pls. We are also in the process of finding out her other source of income, as we are sure she is running some business. She has been living separately and comfortably with her son.

She has mentioned to the judge, when asked by him, that she has no earnings whatsoever during the informal conversation and has mentioned the same in her petition also, in the current case.

Sirji, I look forward to your kind and revered reply and we remain ever grateful to you for your noble help.

Respectful regards,

Respondents

For your kind reference our chain question mails and your kind answers are reproduced below pls, if you wish to go through pla

QUESTION

Dear Learned People, could you please clarify the following!!!1.

Mr.X has gifted his self-eared lonely house to one of his daughters (R1) and Mr.X has a blind son also. The son (who is visually handicapped, blind) has been deserted by his wife 13 years ago and she has now (2010) filed case under DV Act, making her husband (R 1), his younger sister (R2) and youngest sister (R3). R1 is presently living with R2 as he has no avocation and shelter and being looked after by R2 in her legally (gifted) owned house. The Petitioner (Wife of R1 has a son of 12 years now) has made an application for IO with the judge saying that she may be allowed to stay in that gifted house which has been refused by R2 saying that she has no legal right to live in that house.

Mr.X passed away in end 2009

2. Can the petitioner claim a share through her son in the gifted house. The house has been legally gifted through registered gift deed and the Katha has been transferred. I am told by the advocate that the grand son has got right in that property and can ask for a share at a later time.

I then feel the very purpose of Gifting is defeated! What is remedy for this, if the grand son can claim a share at a later date (may be after he becomes 18)

Please respond.

Thanks for your wonderful help.

Answer

Since Mr. X had gifted the property by way of a registered Gift deed to his daughter R2, the gift is absolute and cannot be challenged. The grand son cannot challenge the gift. A women (here R2) receives the property absolutely under the Women Right to Property Act.

In your question, I am assuming an error of R1 having been used twice with two different persons, first with daughter and then with husband (ought to be blind son of Mr. X). Mere fact that the blind son is staying with his sister in the house gifted to sister by her father, son of deserted wife and blind son cannot claim any share in the grandfather's property. Moreover, under the domestic violence act, the wife of blind son does not have a right of residence in this house because the house does not belong to her husband. Supreme Court in Batra vs Batra in 2007 has categorically laid down that wife may claim a right of residence in those properties in which husband is either the owner or has a share in it. Since the property exclusively belong to sister, deserted wife will have no right in husband property.

Husband, if has decided to break the marriage for any reason, must file the Divorce case on the grounds of desertion and/or cruelty.

Question

Thanks very much for your kind and immediate response. It is a great mental relief and your response encourages us to face/fight the falsehood that some are propogating boldly.

Yes sir, I made a mistake in my question using R1 to two persons.( Actually, Blind Son is R1,Younger sister R2 (house is gifted to her), Youngest sister R3).

I see that we are being misled when our case is reaching an important stage saying that the grandson can claim a share in the grandfather�s property, when it is gifted away through a registered gift deed.

Yes sir, we have decided to file for dissolution of the marriage as there is no point in continuing with this marriage even after 13 years and R1 (Blind husband) shudders with fear even suggesting him to join his wife even though we tell him that no one can force him to live with his wife. In fact, his old parents (both are dead) had filed a case for divorce some years back, but could not contest it as the blind son (R1 now) could answer properly in the cross examination and hence the case was withdrawn. He is actually sick with health problems and is being treated for mental depression and has developed bit of psychic problem. Earlier, the Hon Court issued RCR, saying that husband should join the wife. When he was married to the Petitioner (his wife) he was wel employed in a PSU but was terminated on medical grounds since then he stopped giving maintenance to his wife as he had no source of income and was dependent on this fathers pension. Now that he last his father also coupled by his wife deserting him, he has become a zero in this world. But for the sisters taking care of him he would be in the street. A very sad situation! Over and above this, his so-called wife is harassing him legally.

Secondly, we have decided to change our advocate as we see a lot of indifference in him (we have paid his fees as and when he asked) what precaution should we take before we tell him that we want to look for another advocate and ask back the documents we have given. I know it is very delicate and we are worried that he may play a game with us. Please suggest a way out and how can another lawyer take over this case. (Process)

Infact, the IO would be givenon 1.10.2010 (unless it is postponed by judge again) Will they give us time to appeal to higher court.

It is our sole responsibility to look after R1 being blind and support him in everyway.

Learned people like you should show us the way and help us come out of the clutches of unscrupulous people.

Thanks again,

Regards

Answer

Changing or adding of an advocate is permissible under the rules. You have to communicate to the current Advocate that his services are not required and you settle his account. There after you are free to engage any other advocate of your choice.

Question

Respected Sir,

I have been asking several questions and I am happy to state that I have got most authentic and convincing answers from LawGuru Team / Shri.Vishwa Arayji.

Firstly, I am happy to inform that in a recent IO given by court, it dismissed the application of the daugther in law allowing to stay with her husband (who is staying with his sister in the house gifted by her father through a registered deed).

Many a time I may tend to write / repeat certain queries, sorry about it.

1. In the above case the deserted (13 years back) blind husband had earlier applied for divorce, since could not proceed due to bad health and depression, the case was withdrawn. Can he again apply for divorice and have a gaurdian to depose on his behalf. Now, the wife has put a DV case on his, which is running now.

2. Now that the Judge has read our entire reply, what more evidence we need to prove her wrong, as she deserted her blind husband just 6 months after the marriage and legally trying to implicate her husband and her sisters just to extract money. The blind husband has no earing of his own and is fully dependent on his sisters, He could not pay even the maintenance after he lost his job. Will the hon judge consider this situation and conduct a fair trial?

3. Can we file a defamation case against blind husbands wife for wrongly implicating him and his sisters? What about the costs?

Please enlighten us please

We always remain grateful to the entire group!!!!!!

Answer

Yes, again, you have repeated your question. I had already opined that your brother may file his case for divorce. He may use the case filed by wife as a fresh cause of action for divorce. He may explain that it was his parents who withdrew the case to buy peace and tranquility for son.

Secondly, interim order cannot replace evidence. this is prima facie view of the judge. The evidence still has to be led by both the parties. 13year separation is a very crucial issue, which you will have to clinch by leading evidence.

The hon'ble judge would consider that the husband has no income. The judge surely would consider that the husband, who is blind, is depending upon sister. In fact, if you have slightest idea that wife is working; your brother (blind husband) may file an application for maintenance.

Yes, defamation case may be filed by both husband and his sisters. But, main thing in such case is to prove how the defamation has caused an impact on the reputation/

QUESTION:

Respected sir,

Thanks very much for your kind help! We highly appreciate sharing your finest thoughts in this case showing the right way. We are sorry being repetitive as certain mediocre confuse and misguide us.

Importunately, in the fresh case of divorce we are filing and the DV Case already running, can anyone depose (who can, as guardian) (for cross examination etc.,). The past experience is that he (the blind husband) is not comfortable, as he has hearing problem and feels very uncomfortable. Any amount of training and encouragement is not working so far. He could naturally speak the truth, but he does not at court, which is causing for worry for us.

We are going to work on providing the clinching evidence on her way of life, earning and living. She has destroyed the life of the blind son and his parents.

We have 4 studying daughters to the sisters of the blind person and we comprehend that she might use wrongful means to hurt them. In a way, she may be threat to our family, as she has lot of criminal mind, when things are not favorable to her she might indulge in mischievous activities. What kind of protection can we seek from the court or police?

Please ignore if I have any repeated questions sir.

I highly appreciate your for sparing your valuable time in answering us.

Best Regards,

Answer (1 of 1)

No one can depose on behalf of husband (your blind brother). But, you or other sisters certainly can stand as witness and state whatever brother would have said otherwise. Sister is a very good witness. Especially the sister with whom he is staying is the best witness to depose, as she knows the facts and circumstances of the case.

If you apprehend any physical threat, you may write to the police. But, in my opinion, real protection is to come from the omnipotent, the superman, GOD! Pray for that. There is no legal provision by which the court would depute a police guard with you for your protection.

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