Yes divorce can be filed even when she is living with you in the same house, for a complete understanding on how to protect yourself read :-
How to fight a false 498A ? A common husband’s guide.
“For men in India marriage is a lottery but you can’t tear up your ticket even if you lose…” and it’s not just you who would have to live with the lost lottery but your entire family may have to suffer at the hands of a system so grossly skewed in favour of women.
Marriages may fall apart for a lot of reasons, temperamental issues, compatibility problems, but does that make you an offender in the eyes of law? Yes it does, your estranged wife in order to have her way in arm-twisting you may implicate you and your family in end number of false cases, 498A being the foremost.
498A penalizes cruelty for dowry, almost always comes alongwith S.406 Allegations which basically penalize the criminal breach of trust, when your wife’s articles are entrusted to you and you fail to return them back – misappropriate them or convert them to own use – you are criminally liable !. By aid of S.34 of the Indian Penal Code – your family/relatives can be held liable for the same if they share the common intention with you.
Now if you think that you have a wife who can potentially do this for money or the kicks that her ego gets out of the same or pure vengeance then you are my friend in a vulnerable situation, but there is a silver lining to this, there are legal strategies that may help minimize, if not completely rule out, the damage or mischief that may occur to you.
Being a Supreme Court Advocate and a Mens Rights Activist I speak from experience, the following things may(if done correctly) help in a lot of cases :-
1. Insist on a dowry-less marriage - Preparing of list of articles received at the time of marriage, countersigned by both the families, would help rule out exaggerated claims later !
2. Digging the well before the fire starts; when trouble starts at home you apprise all concerned of the problems that you are facing, not for the purposes of any action but information;
If you see things going awry in near future, then it would be good idea to seperate from parents to a rented house with sufficient public notices;
3. As per the prevailing law atleast here in Delhi, if your wife approaches a Police Station with her complaint, she is to be forwarded CAW CELL instituted to try and reconcile and investigate and act as buffers so that penal actions are not inititated right away. Once the matter goes to CAW Cell – apply for an anticipatory bail , you are sure to get notice bail atleast – this would help in two ways :-
a) Give you greater confidence, level playing field in the CAW Cell talks;
b) Prevent any hasty arrest on failure of conciliation;
All in all nothing to lose in this and in this step 1. Would help a great deal.
4. Seek a copy of complaint via RTI ASAP, since they deny at the first instance you’d have to appeal therefrom which may take some time. There are CIC Decisions that would help you here.
5. In the event of an FIR being registered apply for AB again, and quashing of FIR (not always depends on the kind of allegations leveled)
6. Filing Restitution of Conjugal Rights (case that you want her back) may help in some cases, but not in all. Sometimes it helps in defending maintenance cases, and showing your bona fides.
7. Keep a check on your wife’s finances. Would come handy defending maintenance cases.
8. Prosecution (S.340 CrpC) for perjury in cases of false & exaggerated claims in maintenance petitions.
9. Tax Evasion Petitions once you get the List of Istridhan may also help put pressure.
10. Dowry Prohibition Act – penalizes giving of dowry so in case there is a clear admission of DOWRY (not Istridhan) then in that case your in laws are also liable to be prosecuted. Think on these lines !
11. With a marital property law on the anvil, don't buy property in your name, much less jointly with spouse.
The above may go a great deal helping you defend correctly, my advise would be to stand your ground, don’t give in to their extortionate tactics, once you’d get an AB the worst would already be over and after that the judicial system with it’s endemic delays won’t treat your wife differently, sooner or later she would realize that frivolous litigation doesn’t pay !
The Author is a Supreme Court Advocate, and a Mens Rights Activist and can be reached at firstname.lastname@example.org, Tel : 9810553252.