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Tejaswini (TA)     30 May 2012

Husband filed petition for divorce - please help !

Dear Sir,

Ours was an arranged marriage. My husband and I lived together in a country outside India since Marriage in May 2009. We were not getting along each other because my mother-in-law started cribbing to his son about the jewels quantity and the seethana (articles) I bought which was not to her expectation. She took all the jewels and put it in a locker which could be operated by her and me. He started hating me and abused which has even led to physical abuse for which I had to run to doctor to get treated. This surfaced for over an year. So my parents gave me additional jewels. But the bitterness still lingered b/w us. Over and above he used to torture me suspecting my fidelity. I was working in India prior to marriage and resigned it to settle with him.

Early 2011, we came back to India and we started looking for a job. I got a job in Chennai for which I need to travel abroad for training for 3 months. As he was also willing to come with me, I processed Visitor Visa for him. Exactly two days before my travel, he completed his Visa Interview and left me and went back to home town (another city in Tamilnadu) because of the quarrel he had with me. I had no other choice but to travel. There were several instances where he had left me and threatened he will not take me along with him. All those times, I have to go back to his hometown and beg his parents & him. They lay several conditions and after I agree, I can walk inside the house.

Upon my return in August 2011, (which he knows) there is no communication from his side. In Dec 2011, he sent me a legal notice from the legal aid division of the high court calling for the marriage dispute counseling. I attended it but it did not go the right way because meanwhile he started calling my office staff and bad mouthed about me. I had to give a written complaint regarding that to them on that day and the counseling was called off.

In Feb 2012, I received a petition for divorce from him (which was submitted by him in Nov 2011 in the high court Chennai). He claims he wants divorce based on mental cruelty and dissertation (which is untrue as you read above).  As of today, 2 counseling sessions was over. I asked for reunion but he says he wants divorce clearly.

He has not found any job for the last 1.5 yrs but he has good amount of earning & property of him as well his parents. Apart from that he has all my jewels, articles etc...His lawyer is very stubborn that I cannot expect any penny from him as he is not earning but trying to convince for a mutual divorce.

 I have questions 1) He has no proofs to prove that I gave him mental cruelty. How will court look at that? 2) now, that he doesn’t want reunion, I need him to pay me permanent alimony to safeguard my future though I am working now. 3) Can his parents get him married while divorce is still in the court?

Experts, please help me how to proceed with this case.



Learning

 13 Replies

SSB (HR)     30 May 2012

Dear Viji,

Same is happening to me and i dont know where to go even i have one daughter. Dont know about the law but you are thru' with your begging. Yes, as per my lawyer you can ask for permanent alimony and share in his ancestral property. As per Hindu law he cannot re-marry until and unless court set you two apart.

All the best.

Anjuru Chandra Sekhar (Advocate )     30 May 2012

Dear querier,

 

1) You can recover seethanam (your jewels, articles) by filing for Sec.406 of IPC along with Sec.357 Cr.PC.

 

2) You can file for Restitution of Conjugal rights under Sec.9 of Hindu Marriage Act, through which court orders that he takes you back into his society or alternately you can file for Residence orders under DV Act, which will help you to have shelter in matrimonial home. 

 

3) You better apply for Compensation under Sec.22 of DV Act, rather than seeking permanent alimony under HMA because it is claimed that he has not been working now and moreover you are a working woman yourself.

 

4) You can also file Sec.498A for dowry harrassment if you have proof of their demanding more jewellery from you.

 

His parents cannot remarry him while divorce petition is pending in court, if they do so, it amounts to Bigamy a criminal offense under 494 of IPC.  Till the competent court grants decree of divorce, he cannot remarry. And if there is no proof of cruelty he is not likely to get a favorable verdict in his divorce petition.  You need not file a separate petition for Restitution of Conjugal rights, you can, as part of written statement in reply to his divorce petition seek the relief of Restitution of Conjugal rights.

MADURAI LAWYER (LEGAL CONSULTANT)     30 May 2012

Dear Madam,

I am really sorry for your unhappy married life. If you really want to lead a peaceful married life with your husband, kindly approach the elders from both  sides with an open heart to settle the difference of opinion amicably before seeking for legal advice. I don't deny the fact you have got ample remedies under the Indian Law. However, kindly keep in your mind that no law can grant you a peaceful and happy matrimonial life unless the parties to the marriage adopt the policy of give and take  without allowing suspicion, ego, selfishness, etc. to deprive them of their happy matrimonial life.

 

www.jeevaganadvocate.com


(Guest)
U both r greedy women n saying what the law is..? Wake up now. It seems that ur relation was very poor. U r working n still want alimony. This is too much. U failed the counselng. Give respect n get respect.

Adv. Chandrasekhar (Advocate)     30 May 2012

Ms. Viji,

 1) He has no proofs to prove that I gave him mental cruelty. How will court look at that?

If he fails to prove mental cruelty against you, his divorce petition will be dismissed.

2) now, that he doesn’t want reunion, I need him to pay me permanent alimony to safeguard my future though I am working now.

Permanent alimony is a legal term, which is used that only after divorce, the needy spouse will get it.  Without divorce there is no permanent alimony.  But a wife, who is not in a position to survive can claim maintenance under Section 125 Cr.P.C. without seeking divorce.  This will be a monthly payment to the deserving wife, who is unable to maintain herself.

3) Can his parents get him married while divorce is still in the court?

No. During the subsistence of earlier marriage, the parties cannot go for another marriage and if he does so, it amounts to bigamy, which is a criminal offence under Section 494 IPC and attracts 7 years imprisonment.

REGARDING RECOVERY OF STRI-DHAN:

You can recover them by filing a complaint under Section 406 IPC in the police station.  In this case you have to prove two facts beyond reasonable doubt that at the time of marriage, those articles were given / presented to you and your in-laws retained with them and are refusing to return them despite your request.  Section 357  IPC is not applicable as it relates to "Assault or use of criminal force in attempt wrongfully to confine a person".

Stri-dhan also can be recovered by easy process by filing appropriate application under Section 12 of Domestic Violence Act before the Magistrate.  It is easier process and I suggest it.

Do not make mistake to file RCR.  Several advocates will recommend it without appreciating its adverse affects on the wife, who is not willing to give divorce to her husband.  If you file RCR, at the end you will be playing in husband's hands.  Further, by filing RCR, the law infers that you condoned all the cruelties perpetrated by your husband against your body and soul.  You will not be entitled to raise the ground of cruelty once you file RCR.  So, be cautious about RCR. 

Tejaswini (TA)     30 May 2012

Dear Sir,

1) In one of the counselling session he agreed that he could return back the jewels & stri-dhan.But not sure I would receive anything in full.

2)  We have spent all the money over engagement, Marriage, reception etc. is there any way we could get it back?

3) What I meant as permanent alimony is the compensation for the mental & physical tortures.  Please throw some light on that.

4) The lawyer are trying to convince me that I had to visit the court often, so its better to go for a mutual consent divorce is he does not agree for settlement. I am confused, please help. I have not other back-up and I have to earn for my own living and I dont have any idea of remarriage.

manish (cdsdfasd sdf)     30 May 2012

go for mutual consent divorce but ensure that they will give all the articles back plus money as you want. Running around courts will ruin both of your lives. Look in the mirror and work out if the faults were onoly from one side.

Try to get a good mediator in between who will work on settlement between the two i.e seperation. Its good that you dont have a child stuck in between. There are many laws in this country but they are only good for thieves and dacoits and murderers - the judges are mostly inept and inefficient and they dont care what happens to you or the boys side. So go for negotiated settlement - if you get into the sweet talk of lawyers then you will be stuck in court cases for ages specially if the boys family is also stubborn. take your call

randeep singh (proprietor)     30 May 2012

Hello Darlings of the Divorce dynasty!

section 298 will save your souls and make your in laws crawl to your feet asking for forgiveness. within 7 years of marriage he and his family have to look after you like a newborn baby. Just ask any lawyer...about section 298. Anti dowry is what u shud be chasing....they'll all be jailed. Get your jewelry back from them and tell the court that they create a ruckus if you do not bring in more jewelry.

Plus , after you get away from him....post your profile in bharat matrimony etc...it isn't a crime to be divorced from a hating , hitting husband. It is a 2nd lease of life from God.

have fun punishing him thru the courts.

sheela subbarao (Advocate)     30 May 2012

There are so many opnions about your case. First of all you need to be clear whether you want to live with him or divorce. If you decide you cannot continue to live with him as because there is no mutual love and affection, respect, trust etc., which are basic minimum to lead marital life. If so, if you are capable of earning and make your livelihood. You can just file a petition for divorce on mutual consent. Once the decree of divorce is got you can lead you life freely.  

Anjuru Chandra Sekhar (Advocate )     30 May 2012

:)Chandu saab!  It is not S.357 IPC, I suggested S.357 Cr.PC.

Adv. Chandrasekhar (Advocate)     30 May 2012

Originally posted by :viji
"


Dear Sir,

1) In one of the counselling session he agreed that he could return back the jewels & stri-dhan.But not sure I would receive anything in full.

Take whatever he is giving by acknowledging the articles you receive but reserving the right to claim the remaining articles.

2)  We have spent all the money over engagement, Marriage, reception etc. is there any way we could get it back?

I do not think the amount on those heads can be recoverable.

3) What I meant as permanent alimony is the compensation for the mental & physical tortures.  Please throw some light on that.

Yes. Mental and physical torture and compensation got a place in domestic violence Act.  If you can quantify in terms of money by giving proper justification for the mental and physical torture you met in his or his relatives hands, you are entitled for the same.  The procedure in domestic violence Act is simple.  File an application (prescribed one) under Section 12 of the Domestic violence Act to get those reliefs.

4) The lawyer are trying to convince me that I had to visit the court often, so its better to go for a mutual consent divorce is he does not agree for settlement. I am confused, please help. I have not other back-up and I have to earn for my own living and I dont have any idea of remarriage.

This particular question can be answered by you and by you only and none else.  It is a fact that litigations including matrimonial litigations take years together and suck the blood, sweat and peace of the litigants.  But if you are not intended to remarry and if you want to get justice for the injustices you met in matrimonial home, you can go for maintenance and domestic violence cases.  Regarding court appearances, you have to appear at the time of mediations and after that at the time of tendering your evidence. 

"

Tejaswini (TA)     30 May 2012

Dear Sheela,

I did not go for any legal procedure till date upon so much of torture for the only reason that i want to somhow make the marriage work. That is what i said during mediation also. But upon committing sll the crimes, if he can file divorce petition against me and as you mentioned if i agree for a mutula consent, where is the justice here ? Ok if he is not willing to reunite then let him atleast compensate monetarily for all the ruining he has done to me. I am the sufferer of the whole story because divorcee is still a social stigma for ladies but he will get married the very next month to another poor girl because of his wealth and richness. Do you think someone just like that marry and walk off just submitting mental cruelty is right ?

Anjuru Chandra Sekhar (Advocate )     31 May 2012

@Viji. Check your Email.


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