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Kavitha Menon (Others)     13 August 2012

My first step for divorce - will it work?

Dear Law Gurus:

My marriage has reached an irretrieveable stage. Hence, I need to get a divorce. I'm a Hindu Keralite married to a Sikh for past five years. I've a 12 month old son.

My divorce lawyer has asked me to file a domestic violence under criminal offence against my husband in order to get him out of the house. My dad and I've bought the current apartment where we live. My husband's contribution toward the apartment is only the partial Home Loan EMI contribution every month. I'm the main applicant; however, since my husband refuses to move out of the house and divorce me, my lawyer has adviced the above.

However, I've the following concerns:

1. What if my husband takes an objection on this charge and demands a legal enquiry into the domestic violence charge?

2. Can he also get a stay on me staying in the house.

Please advice.

Thank you,

Regards,

Kavita



Learning

 20 Replies

Rajan Bhasin (Law Student)     13 August 2012

He is asking you to file 498a. DV is not criminal. Use 498a brahmatra wisely and only if required.

Tajobs has adviced you correctly a month back.

 

https://www.lawyersclubindia.com/forum/details.asp?mod_id=61151&offset=1#.UCkMllYgfSg

Kavitha Menon (Others)     13 August 2012

Hello Mr. Rajan Bhasin:

Thank you for a prompt reply. I highly appreciate it.

Yes, I agree and I had read the reply to my post. I wish to know if my lawyer is genuinely doing his job or taking me more deeper into a mess. Also, could you please tell me what happens if my husband proceeds in either of the below mentioned way:

1. What if my husband takes an objection on this charge and demands a legal enquiry into the domestic violence charge?

2. Can he also get a stay on me staying in the house?

Awaiting your response.

Regards,

Kavita

Tajobsindia (Senior Partner )     13 August 2012

Abalas forget @ Rajan
Here are memory recall in new short / alleged to be sweet wordings!


1.
For alleged IrBM one seeks CIVIL remedies under civil divorce family laws and not under quasi-criminal (alleged to be civil) DV Act complaints !
2. Ask him his thoughts on MCD by paying him back “partial EMI’ that he paid till date as his investment is also legally visible. Though the property is registered in your name but legally his contribution is also there as per Law if he can prove that he partially paid for EMIs’ he can recover it. Contract act does not apply as in it could not be said to be stridhan of wife ! As per law, even husband can claim maintenance if he is not in a situation to maintain himself and wife is in a strong position. The Law applies to both husband and wife. Now the appropriate Court of Law shall decide who did the mischief to the other and that the husband is in a position to seek the EMI in question or not. He is also eligiable for custody / visitation rights of child. Think about that too.
3. Under DV Act though he is respondent but if you are ready for providing him “alternate residence” then your application for injunction / debarring him from “shared household” is tenable under DV Act is my view. By simply alleging IrBM in DV Act Complaint (if so) I reserve my suggestion (reply) rights.
4. Your advocate forgot about S. 406 IPC as Keralites have tradition of giving “huge stridhanask your advocate to file that along with S. 498a IPC and GWA Act custody petition or include the same under DV Act it will make your husband run to nearest Gurudwara by tomorrow night!
5. He can always use S. 91 CrPC in DV complaint of yours for any kind of 'enquiry" (means respondent / husband has such rights under quasi - criminal Laws)!
6. I respect wisdom of all my fellow ld. brothers including Lordship Chandu of D Trial Court read with D HC as he has special sympathy to women's issues and I learned a lot from his (under) statements here hence cannot comment who is on a roller coaster ride right now as it is too early a wide open eyes balcony ticket entry to family law saga. I'm leaving recent published statistics of Maharshtra and Kerala States from respective State's Police HQ's which says these two States abalas (oops married ladies) are leading in filing criminal Complaints under various Family laws.

Remedy:
File Divorce and prove IrBM which is not yet grounds for divorce under family Law. No harm trying permutation / combinations now that some matter is in Court
J
Create civil partition of the flat.  Let divorce decree be passed then only he can be asked to leave "shared household".

-----
IrBM - Irretrievable breakdown of Marriage
MCD - Mutual Consent Divorce
EMI - Electro Marriage Interference (reference to query as in hand)

2 Like

Kavitha Menon (Others)     13 August 2012

Hi Rajan:

I read your reply; however, I understand that the mother gets the child custody until age of 5.

How can he be given partial share in the property when everything is my money? Every single item in the house

is bought by me! My bank statements can prove that!  Can't the partial EMI return be adjusted in the alimony!

Please advice.

Thank you.

Regards,

Kavita

Rajan Bhasin (Law Student)     13 August 2012

 

Kavita,

Your understanding on child custody is also not correct. Although in maximum cases this is fact but child custody is awarded keeping best interest of the minor.

Regarding partial share it can be monetary compensation. Let’s suppose if he has contributed X amount and you give him back that!

Problem here is that you are mixing lot of things. I.e
1. Child custody
2. Property
3. Alimony
4. Divorce

Best solution keeping current situation in mind to have mutual divorce with agreement with your spouse on all these conditions in MoU.

Regards

Rajan Bhasin

+91-9910571733

Kavitha Menon (Others)     14 August 2012

Hi Rajan:

Thank you for the reply.

About Child Custody: My husband has never been father figure to my son yet. He has not even bought a diaper for my son. Right from my pregnancy till date, I'm the one bearing all the expenses and care for my son. I had to repeatedly ask him to to even take my son for his vaccinations and hospital visits. Even then he has accompanied us unwillingly. He never used to spend time with us. Only after I had pointed it oit to him, he started spending some time with my son, not with me yet. Even then the time he spends is like it's a formality. He is not doing it genuinely. My family members including my sisters' husbands, have witnessed it. Also, he has extremely poor hygiene and live in very unhealthy and messy ways. He only thinks of making money in all possible crooked ways. What values is my son going to learn from him? So, I do not understand as to how the court can see that it's in the best interest of my son to be with his father.

About Mutual Consent Divorce: I too want that we go for a mutual consent divorce but he's not going to agree - "I'm the hen that lays golden eggs." - so, why would he? When I told him I want a divorce he told me that he's not going to sign the papers and asked me to proceed the way I want to! He's adamant on it! Off lately, he asked my father to get out of the house and treated him with bitter disrespect. My father has looked after him as his own son. He used to even get bed tea, make his lunch box, etc. for my husband. Also, my father had paid 15 lacs to buy this apartment after selling his house. Rest all, is my hard-earned money.

About Property: When I can  prove that I've pitched in all the money, how can he have any share in the property. All that he has contributed so far for the past two years in terms of the property is the partial EMI.

About Alimony: I understand that I would need to settle his EMI contributions. Can't this be adjusted with the Alimony amount? I mean whatever he agress to pay, I could deduct his EMI contribution from it and accept the remaining alimony amount.

I am sure I'll have to fight this a hard and nasty way because I don't have a choice unless he agrees for Mutual Consent Divorce. I'm just trying to ensure that I don't do anything that might weaken my case.

So, please guide me again.

Regards,

Kavita

Rajan Bhasin (Law Student)     14 August 2012

File for contested divorce if this is the case. All your queries will mature with time. No need to be worried.

Fight the cases on merit. you will not need to give property if proofs are there.


(Guest)

First try to save matrimonial life If feel there is no chance to live with your Husband than take step.

you have to take your parents advice regarding this matter what the say. Than decide.

Never take any action so fast.

Kavitha Menon (Others)     16 August 2012

Hello Mr. R.K. Prajapati:

I've been married to him for more than 5 years now. I've tried everything possible to make him understand the challenges of being married, the essence of mutual understanding, co-operation, adjustments, compromises, each of the partner's need to make. However, he seems to be adamant that I sacrifice and I do all that is necessary to keep the marriage goin but not him. He doesn't discuss things when they go wrong. Even if we sit to discuss things out he walks away if he finds no answers to my questions, or is out of points to make;and never returns to discuss it again. I've reached the end of my tether.

I can't help it now. His parents and brothers are the main cause of the tension between us; so, how can I expect our separation matters to them? His family isn't bothered as long they get their son and grandson. I had lost my mother unexpectedly to a massive heart attack in 2006. My father has always given us the freedom to make our own decisions. Even after have looked after and cared for as his own son, my husband has misbehaved and brutally direspected him.

Certainly, my father is not happy that this is to happen; however, for me it's not about what I want but what I must do.

Regards,

Kavita

 

Nidhi malhotra (proprieter)     19 August 2012

dnt use 498a if they hv nt taken dowry....becaz the consequences of 498a r severe and can ruin ur life along with his

Kavitha Menon (Others)     20 August 2012

Hi Nidhi:

Thank you for the tip.

He or his parents have not asked for dowry; however, they'ven't said no either. Right from the furniture that I got at my marriage to the money given by my father to buy a house, my husband has willingly accepted it. They've been playing it smart enough. Would such an intention be treated as dowry.

Awaiting your reply. Thank you.

Also, I'm due to meet the marriage counsellor with my highly manipulative husband a day after. I would be grateful if you could help me with any tips/advices for the session in the family court? I'm scared that he'll outnumber me & I might lose the house or my son to him.

With much thanks,

Regards,

Kavita


(Guest)

there is no provision for demand legal enquary in DV act. On the basic of evedence matter decided.

Your husband has right to said house if he paid EMI of loan. On this basic he can get stay. If it is.

Contested Divorce takes long time.

Kavitha Menon (Others)     20 August 2012

But I've been paying the EMI too. And I've pitched in my own fund & my father's. I cud prove it with the cehques signed from by bank a/c.

Kavitha Menon (Others)     21 August 2012

Hello Law Gurus:

Please advice on how can I have my house back without filing a 498a on my husband.

Could mental tortute be considered as Domestice Violence?

Thank you.

Regards,

Kavita


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