Legal Question in Family Law in India
Sir/s,
The woman to whom I was married in good faith and not knowing that she was married earlier, took divorce by mutual consent from her first husband (in Dec 2002) 6 months after her marriage with me. I came to know of this in the hospital when a child was born after one year (in Dec.2003). Because I enquired about this, she has not come back to my house on the advise of her parents and I was forced to file a case for nullity of marriage. After a full dressed trial, the family court decreed the marriage as null and void giving child visiting rights to the father (in Feb 2007). I have paid interim maintenance during the family court proceedings of Rs.4000/- p.m till the date of judgement. Humanitarian coniderations and financial constraints prevented me from filing a cheating and bigamy case against her.
She is keeping the child with her and not allowing me to even see it since birth. Whenever I ask for visiting the child, they use abusive language and ill treat me and say that the child cannot be seen. As the child will be affected if I take any action, and in good faith that the child should not be separated from mother, I have not made further attempts to see the child nor taken any legal or police action to enforce the visiting rights.
Thereafter in order to harass me and extract money, she filed a false case during july 2007 misusing the newly enacted Domestic Violence act, 2007 which came into force from Oct.2006, through the local women�s commission, making false allegations and claiming exhorbitant maintenance for her and the child invoking all the sections in the act- economic abuse, right to shared accommodation, etc eventhough we have not co-habited since 2003. The magistrate court without any trial simply awarded maintenance of Rs.8000/- p.m and thereafter I had to go to the high court which then directed me to refer to the sessions court. The case is now being heard in the sessions court where I have prayed for setting aside the false case filed by her. Then I was employed as Bank officer and last year I have taken VRS and am now jobless, living with my pension. I have not informed the court about not being in the job. Neither does she know about it.
The DV act is biased and there is no law to protect men from the atrocities women commit on men and therefore, I am totally shattered. Please advise me how the sessions court is likely to view the case. Whether I should file a case for custody of the child (now 6 years). But I feel then I may be asked to pay interim maintenance for the child and since I have not seen the child or befriended the child by visiting it, the custody may not be given to me though the father is the natural guardian. Pl. offer your valuable advise Sir/s.
3 Answers from Attorneys
once your marriage was nullified on the grounds of her committing bigamy, you should have filed the case. you may file the same even now as there is no limitation in criminal cases. moreover, you can take this plea in defending yourself in DV case. you may even challenge her DV case and on the same ground that she committed bigamy, you may approach the high court and get the complaint quashed.
DVA may not be applcable in your case since you had no legal relationship with her at the time the Act came into force. .
yours is a good case, your marriage is declared as Null and Void then no case of DVA is maintenable. Now you can reply on two grounds; one marriage is null and void therefore DVA is not mainteneable,
other; you are not in a job so that court will relax you from earlier amount, but you have to pay atleast for your child. Plz send the copy of DVA application and your reply, then we will guide you in a better way,
Regards
KAMAL GROVER,
Advocate (Chandigarh, India)
M:+919814110005
e-mail: [email protected]
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Good luck
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