498a and divorce?
supabcdefgh
(Querist) 02 May 2012
This query is : Resolved
Assume a case:
Man is ADHD but successful.
She continuously nags and insults him, locks him out of home, throws him out of In-Laws.
This caused physical violence of various degree in him, which was beyond his control.
Despite all these, he is being punished with 498a 3 years imprisonment and fine and loss of Goverment Job.
The main question: (please don't digress)
Before going to jail his plea:
"My violence was beyond my control. After 3 years too, nothing is going to change. After 3 years in jail, please grant me divorce immediately"
Will this be granted? Is there any similar past case with 498a convict where wife does not wish to give divorce?
Raj Kumar Makkad
(Expert) 02 May 2012
The given matter shows that a cruelty has been committed by wife so her husband can very well file petition for decree of divorce on this sole ground but nothing an be commented about its result because it also depends upon various other facts of the matter in dispute.
supabcdefgh
(Querist) 02 May 2012
But still 1 years separate living is necessary, right? can that 3 year be counted?
Advocate M.Bhadra
(Expert) 03 May 2012
In a Divorce suit there is no relation with a case u/sec.498a.except evidence of cruelty.
supabcdefgh
(Querist) 03 May 2012
20 years in marriage, 1 son. people told me divorce is impossible. So you mean even after use of 498a it is impossible, if wife do not consent. Even RCR may not help as she might have valid reason.
But still you do not understand my question:
Divorce requires staying separate physically. Will the 3 years in jail count? Please answer YES or NO.
Raj Kumar Makkad
(Expert) 03 May 2012
Jail period is definitely a separation and the same shall also be duly counted. There is no question of reasoning of jail here.
Devajyoti Barman
(Expert) 03 May 2012
In divorce case you have to separately prove the cruelty of your wife.
If you succeed then only you can get the relief.
supabcdefgh
(Querist) 03 May 2012
At last I got a direct answer to a simple question from both raj Kumar ji and Devajyoti Barman. Thanks.
It would not be difficult to prove cruelty of wife in any way as it would not be difficult to prove my cruelty. Once she went to a counsellor. The counsellor could not believe it. She came back, instigated my violence and recorded it, thinking this is as a proof of my violence. She did not realize it was a proof of her meditated instigation too. About other cruelty, they are verbal cruelty, making me sexless again and again , using sex as a weapon to control me when ever she likes, locking me out at cold winter night with my son, twice throwing me out of Inlaws house, once with child.
She can say, i started first, i can say she started. But both took up cruelty against each other. Difference I am man can be charged with 498a for regular domestic violence (always by instigation) where as ADHD I would loose control (A mater I understood lately and going through counselling) and she cannot be.
She doesnot want to give divorce, does not respond to counselling. Her demand, she was instrumental in my PhD decision and hence I should give up my job..
I am trying last attempt.
Should I try filing divorce? Will she file 498a? can I plea insanity based on ADHD?
Any way, i have now realized that if 498a comes, I should not be afraid but file for divorce.
I am asking a small final advice:
a) Should I move out of my home , (keep providing expenses) if all counselling attempt fail?
b) After moving out, should I wait or immediately file for divorce?
Thanks. Please keep Final answer short and as I do not want a discussion.
supabcdefgh
(Querist) 03 May 2012
One more question: (following the rule not to change thread)
I have lot of document on AHDH that would help my wife if she reads. She denies to read or take counselling.
Is there a way to legally document and send a letter to her parents, all these ADHD documents asking them to read themselves, intervene, persuade wife to go through counselling or else I will have no other way of helping myself but filing for divorce? (alimony and child custody are not issue that worry me as Child is in Hostel).
In other countries, Neither I nor she are qualified in any human criteria to take care of him - told our lady counsellor.
Shonee Kapoor
(Expert) 04 May 2012
The conviction in 498a means that wife was dealt with cruelty.
However, if the husband can show that wife has been cruel to him too, he can get divorce.
Based on the ground that he is not in control on himself, is no ground for seeking divorce as the husband would be trying to take advantage of his wrongs.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
supabcdefgh
(Querist) 04 May 2012
Sirji...
No control of himself is not ground for divorce. It is insanity clause sec 84, IPC is a plea to either waive of punishment of 498a or at least be lenient. ADHD condition can be medically proved though this possibly has never been used till date as I have not yet found a reference yet.
supabcdefgh
(Querist) 04 May 2012
To all the experts, My sincere thanks for educating me. I am under extreme suffering, so is my wife.
Any way life is not easy, I will proceed with my journey.
Assume my points are resumed. If you wish to be in touch with me or help me, contact me at supratic@yahoo.com. I won't ask for free service, but I am a strange person, crazy person, beyond my control, sorry, be warned.
