sunil (cs) 06 July 2012

Divorce and maintainance

Dear Friends,

I need your valuable advise,

Facts of the matters are that

My friends, she is married in July 2008 with love cum arrange marriage (inter cast but both Hindu) at Bhopal. Both are residing at Pune and both working at Pune in IT companies. By this marriage one daughter 2 years old. Husband family is in Bhopal.

Husband filed divorce case at Bhopal family court, pending for disposal, no counseling is provided till now

Husband left for US in May 2012 after deserting the wife and daughter without informing wife and not ready to mainain the family. Now he is not making any contract to wife and daughter and also not perusing divorce petition filed by him

Wife wants to dismiss divorce petition and want to stay with husband to save her marriage, but husband is not ready

Questions arose for answering before this forum

1. Will divorce petition be dismissed because husband is not perusing his petition and wife is not interested in the Divorce ?

2. Can divorce petition be transferred from Bhopal to Pune for easy perusal by wife?

3. Can the maintenance petition be filed in Pune, instead of place of Divorce petition pending at Bhopal court, because Wife is in Pune and pursuing at Bhopal is difficult?

4. Can domestic violence be filed against Husband and their family at Pune for mental harassment, deserting the family as well as physical abuse done to wife and daughter before husband leaving the country?

Kindly provide your valuable advice, it would be great help to her.

Sunil

Reply Follow

9 Replies

Never Give Up (Fighter) 06 July 2012

There are laws using which you can force spouses to live together, however There are no laws which can force spouses to live as husband & wife (read with trust,love and affection).

Better settle the matter amicably and part ways peacefully.

H. S. Thukral (Lawyer) 06 July 2012

1. If husband is not following up the matter, the case would be dismissed.

2. The wife has to approach the SC but it can be done.

3. The maintenance applications can be filed at Pune except under section 24 of HMA which is to be filed in divorce petition. But under DV Act, Criminal procedure, Adoption and Maintenance Act can be filed at Pune

4. DV Act complaint can be filed at Pune.

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 06 July 2012

Dear Querist,

Instead of seeking a transfer it is much better to get the case first transferred to Pune, and then seeking a transfer on the ground of non prosecution/dismissal in default. Once case is transferred you can seek maintenance in that very case, and also file maintenance cases in other provisions of law, Domestic Violence can also be filed at Pune, in civil and criminal actions.

Feel free to talk !

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 06 July 2012

Dear Querist,

Feel free to talk !

sunil (cs) 06 July 2012

Thank you very much for your valuable inputs provided in the matter.

It will great held to the wife.

Regards,

Sunil

Tajobsindia (Senior Partner ) 06 July 2012

Originally posted by :sunil
"	Observations: It is not known if wife from Bhopal and or Pune? Second it is not known from facts before us if family of Husband did domestic violence upon her or not It is not known essence of physical abuse of husband upon wife/daughter. It is not known status of divorce case other than it is not being persued. It is not known if divorce case filed before Family Court or ordinary District Civil Court. Well, these besides the point right now here are the takes on your minor questions; Questions arose for answering before this forum 1. Will divorce petition be dismissed because husband is not perusing his petition and wife is not interested in the Divorce ? Take: If he has appointed a pleader then process of Court will take its own course. His presence is required only during Evidence stage. 2. Can divorce petition be transferred from Bhopal to Pune for easy perusal by wife? Take: Yes via TP (C) before Hon'ble SC it can be requested to transfer to Pune. 3. Can the maintenance petition be filed in Pune, instead of place of Divorce petition pending at Bhopal court, because Wife is in Pune and pursuing at Bhopal is difficult? Take: Meanwhile she can file under S. 125 CrPC on her / child behalf maintenance case. If she is shown to be working then she will not get it. Child will get it as it is co-extensive. Once Divorce case is transferred she has a choice either to peruse her S. 125 CrPC or withdraw it and file S. 24 HMA in divorce case. The advantage of keepign S. 125 CrPC is that it covers both during and post divorce maintenance to wife/child. The disadvantage of S. 24 HMA maintenance case filign after withdrawal of S. 125 CrPC is that maintenance awarded is only during the pendency of his divorce case. However both S. 125 CrPC as well as S. 24 HMA for maintenance can also be run simultaneously as ther eis no such bar that they cannot run. Once a award for maint. under civil laws (HMA) is awarded the award if given under S. 125 CrPC then one is set-off. 4. Can domestic violence be filed against Husband and their family at Pune for mental harassment, deserting the family as well as physical abuse done to wife and daughter before husband leaving the country? Take: two ways to reply to this que. based on re-reading observations stated above; ONE - if she is not from Pune and somehow living via working in Pune along with crèche based child then less cases the better upon her / by her. TWO - If she has her natal family as local support available in Pune itself and factual domestic violence incidences happened upon her / child then yes she can file a complaint case under DV Act and multiply cases against husband if she can manage multiplicity of cases / depends upon her purse too!. Otherwise if she is interested in saving her marriage then S. 125 CrPC along with transferring Divorce case from Bhopal to Pune is itself self sufficient why make her visit courts instead of looking after child and furthering her career! Ask her to think in introspection and then act accordingly if saving her matrimony is priority as you on her behalf ask before us. Addendum observation: Seems case of a career minded husband who to build his career and incompability with wife left for USA for furthering his career which in turn could be proved / un-proved as desertion whatever !	"

Adv. Chandrasekhar (Advocate) 06 July 2012

1. Will divorce petition be dismissed because husband is not perusing his petition and wife is not interested in the Divorce ?

The first act on the part of the court in divorce petition is to initiate conicliation / mediation. As the husband has left without performing this duty, you can ask the court to give direction to the husband to personally present. After his two consequent non-appearances, ask the court to dismiss the divorce petition for non-prosecution.

2. Can divorce petition be transferred from Bhopal to Pune for easy perusal by wife?

It can be done only by S.C. As it involves huge costs, I suggest the advice mentioned in point 1 above.

3. Can the maintenance petition be filed in Pune, instead of place of Divorce petition pending at Bhopal court, because Wife is in Pune and pursuing at Bhopal is difficult?

You can file Section 125 Cr.P.C. petition from pune, which is better in several respects than Section 24 interim application you can file in divorce petition. So go for Section 125 cr.p.c. petition by filing it from Pune.

If husband has done any physical, verbal, mental and economic abuse in respect of you and your daughter, you can file Domestic violence case from Pune. If any one of his relatives have perpetrated the same, then you are entitled to add them parties in the same domestic violence case.