Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Fiona (home maker)     29 May 2012

Divorce

I was married in  2002 in a church.I was working before my marriage but my husband wanted me to quit and stay at home and be there for him which I agreed to. Unfortunately, my marriage was not an easy one with most of the days turning violent..he was physically and emotionally abusive.I still stayed in the marriage because by then I was pregnant and my son was born in 2003. He left to the UK to persue his studies.and i joined him when my son was 5 months. The situations still were the same. His abusive nature got worse every day ..turning to weeks.I  got so used of being in that stae that i literally forgot what marriage was anymore. I had the fear of leaving him since I had no job and family pressure kept me stay in the marriage.His outbursts  and violence would last for hours together..until he realises that I cannot take it anymore. When it was a lot to take up I informed the cops who took him. I was asked to leave him and join my In laws in Doha until matters cool down. My husband was released without any arrest made.

I thought if I give him time and probably if he attends some kind of counseling things might chage. I came down to India and he visited us every year for a week.The moment he returns back to the UK there would be no contacts apart from few mails.It's been 5 years since i've come down to India..and he never let me work saying our son would need me. He keeps sending me monthly allowance.Apart from sending me that. we had no other contacts and he hardly speaks to my son. Now he wants a divorce. This year June will be my 10 years in this marriage. I'm turning 36 years and have any job experience. What are my chances in case I agree for the divorce in norms of alimony . Moreover my son has no bonding with his father since and my husband has no interest in taking him as well.

I would be grateful if someone would help me get a clarity of things. Thank you.



Learning

 5 Replies

Anjuru Chandra Sekhar (Advocate )     29 May 2012

Divorce has nothing to do with maintenance.  You and your child are eligible for maintenance from husband till you remarry or if you don't remarry till your death.  Maintenance does not mean not mere payment for subsistence, courts in India have ruled that the wife is eligible for maintenance at par with the social and financial status of the husband.  So whatever standard of living that you and your son would have been eligible for, if you had been part of his home, you are eligible to enjoy that standard of living till you remarry or till your death whichever is earlier.  You can contest divorce by rejecting his allegations or you can accept divorce and demand permanent alimony as part of Mutual Consent Divorce.  Here you will get a lumpsum amount as full and final settlement. 

 

You are eligible for permanent alimony under Sec.25 of HMA. You can file application for permanent alimony in reply to his Divorce petition.  But this maintenance you will get at the time of passing of decree by the court.  You should also file for pendente lite maintenance under Sec.24 of HMA which makes you eligible for maintenance during the pendency of litigation. 

 

You are also eligible to file for maintenance under Sec.125 Cr.PC. and Sec.20 of DV Act. 

 

Apart from this, you are eligible for compensation or damages for domestic violence (deserting you for so many years amounts to mental cruelty which is domestic violence according to DV Act), under Sec.22 of DV Act. 

 

My advise is apply for permanent alimony under Sec.25 of HMA and also for Pendente lite maintenance under Sec. 24 of HMA along with filing for maintenance and Compensation under Sec.20 and 22 of DV Act.  The maintenance under DV Act is in addition to what you may get under other legislations. 

1 Like

Fiona (home maker)     29 May 2012

Thank you Sir. I needed one more clarification, Since it's going to be 10 years I'm married and seperated for 5 years in that..how long will the divorce proceedings take? 

In case I remarry, what happens to my son? Will he still be eligible for child support from his father?

Can I still meet his parents so my son can get time to spend with his grandparents? They have been extremely nice to me and supported me throughout ..


Thank you once again.

Adv. Chandrasekhar (Advocate)     29 May 2012

If you are intended to remarry and keep the custody of the child, it is better for you to take divorce on mutual consent, which takes six months period.  In this, you put proposal of lumpsum amount as alimony for the damages/compensation and also future expenses of your son till he becomes self sufficient and also permanent custody of the child.  When you remarry, first get clarification about the future of your child with your would be.  Having good relations with your in-laws and keeping your child in their contact has nothing to do with your divorce case.  If grand parents would like to keep the child for some days and if you have no objection, then no one can object it except your future husband.

Adv. Chandrasekhar (Advocate)     29 May 2012

If you are intended to remarry and keep the custody of the child, it is better for you to take divorce on mutual consent, which takes six months period.  In this, you put proposal of lumpsum amount as alimony for the damages/compensation and also future expenses of your son till he becomes self sufficient and also permanent custody of the child.  When you remarry, first get clarification about the future of your child with your would be.  Having good relations with your in-laws and keeping your child in their contact has nothing to do with your divorce case.  If grand parents would like to keep the child for some days and if you have no objection, then no one can object it except your future husband.

The alimony/one time settlement amount will depend on the following factors:

1.  Your loss of job opportunity and loss of earning.

2.  His financial status.

3.  Yours and your child's future expenses, especially your child's medical and educational and sustenance expenses.  Similarly your expenses on these three counts, supposing you are not going to be married.

Anjuru Chandra Sekhar (Advocate )     31 May 2012

@Fiona.  I am sorry for giving you wrong advise.  You are a Christian and so HMA is not applicable for you.  You have to go under Indian Divorce Act for seeking Divorce and Permanent alimony and Pendente lite Alimony.  You can file for pendente lite alimony under Section 29 of Indian Divorce Act, and permanent alimony under Section 30 of Indian Divorce Act. For divorce you should go under Sec.10 of Divorce Act, 1869. Two years desertion by husband is sufficient to file for divorce as per amendment made to Indian Divorce Act, 1869 in the year 2001.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Related Threads


Loading