Sarita Kumari 04 June 2022

Contested Divorce & maintenance

Request for an expert opinion and suggeation on the below:

My friend, who is married from past 12 years and have 10 years old male child now want's to go for mutual divorce, but, her husband is not willing for it as he is aware that she would be asking for property and maintenance. She was subjected to mental and physical cruelty (not physical torture but mental and s*xual abuse) post marriage by her husband and the samenwas supported by her in-laws. Many times he had asked for dowry as well but she has no proof of the same. She wrote a complaint to the Commissioner of Police about the cruelty she was facing and also sent a legal notice seeking mutual consent divorce, but, no response from the husband. Husband earns 4-5 times more than the wife. Now, what course of action should be followed so that she gets a property to stay and maintenance as well for herself and the child.?

1. As the legal notice was sent first and then the complaint to the CP, so now, is it legally fine if she files an FIR for DV or 498-A?

2. What cases can be initiated against him in parallel?

3. Any other suggestion.

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2 Replies

Rachna 10 June 2022

For expert suggestions on matters relating to contested divorce and maintenance, you can contact Siddhartha Shah and Associates in Santacruz West, Mumbai. With an experience of 20 years, they can provide you the best legal advice.

Yashvardhan Gullapalli 11 June 2022

Given the situation it seems that the husband is directly in denial of providing maintenance to the wife so, if the wife goes for a mutual divorce under section 13B(1) of the Hindu Marriage Act, there will be pressure from the husband on her to surrender her claims to alimony or any kind of maintenance under section 125 of the CRPC and if she does that then she wont be able to claim maintenance as stated under Section 127 (3) (c) of the CRPC as seen in the case of Sri. Subhankar Majumder v. Banani Majumder, which reads “the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.”

The wife can file for interim maintenance before the presiding magistrate to support her until the end of the trial. The magistrate can issue a direct order to the respondent’s employer or debtor to channel the maintenance amount to the wife before making payment to the respondent.

There are also many other monetary reliefs for a woman under the Domestic Violence act 2005, she can claim damages for harm done to her by the physical, s*xual, emotional, or mental abuse suffered in course of marriage. Interim maintenance is originally a concept of The Hindu Marriage Act, 1955 as seen in section 24. There also exists a chance that the court might reject an appeal for interim maintenance as seen in the case of Pradeep Kumar Saini Vs. Seema & Ors (2009).