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Utpal Baruah (X)     10 May 2013

Suggestion on divorce

 

I have been married for 4 years now and have a 18 months old daughter. We stay with my parents. We are having daily fights in the family among us with wife on one side, my parents on the other side and I am in the middle of it. 

As a result, it is affecting my work and all other spheres of life. As a result of this, I am now thinking of getting separated from the family. What I want to do is not only divorce, but also want to move away from my parents. 

I want to know, if it is possible to do so legally and if yes how. 

I also want a few clarifications

 Alimony 

I worked as a software professional for 8 years both in India as well as in abroad. But I left my job in November 2011 and now working on a start up. So, although I had a decent salary, while I was working, now I am not earning much and there is no guarantee of a secured income in the future as well. 

Also, I own a few properties (apartments and plot of lands) but all these are in the name of my parents. 

So, in such a situation, how would the court decide on the alimony, as I don't have any fixed income?

 

Domestic violence

Although there is frequent altercation in the family, there had never been any physical violence on my wife. So, how do I protect myself, if she brings charges of domestic violence. 

 

Dowry

No dowry had been demanded or given in our marriage. In fact, my Father in Law wanted to give us some furnitures at the time of marriage, which we refused. So, there can't be possibly any case of dowry. Still how do I protect me, if dowry charges are brought on. 

 

Child custody

I understand that since my daughter is just 18 months old, the court will in all probability will give the custody to my wife. However, is it possible to get the custody of my daughter after a certain age?

Moreover, I want that all the incomes (rental and otherwise) from our properties goes to my daughter. But since she is a minor now, I want the money to accumulate somewhere and want to hand it over to her when she becomes 20 or 25. But I don't want my wife to touch this money. Is it possible?

Thanks in advance for your suggestions.



Learning

 5 Replies


(Guest)

 

What amounts to cruelty against husband? Though it is the duty of the court to decide the case based on facts and circumstances but what amounts to cruelty is an important aspect as misuse of Laws by the wife against husband in society is growing day by day and most apparently some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives and there are certain grounds on which cruelty against husband can be proved:-

• Misuse of Dowry Laws, Domestic Violence Act and ‘Sec: 498-A’ of IPC by wife against husband and in-laws of husband through lodging false complaints.

• Desertion by wife which means wife deliberately intending for separation and to bring cohabitation permanently to an end.

• Adultery by the wife means wife having s*xual relationship with some other person during the lifetime of marriage and there must be strict law to punish wife who has committed adultery.

• Wife opting out for second marriage without applying for the divorce proceedings.

• Threatening to leave husband’s home and threat to commit suicide by the wife.

• Cruel behavior of wife where wife tearing the shirt of the husband, refusing to cook food properly or on time and breaking of the mangalsutra in the presence of husband’s relatives.

• Abusing and accusing husband by way of insulting in presence of in-laws and in some cases wife abusing husband in front of office staff members.

• Wife refusing to have s*x with husband without any sufficient reasons which can be considered as a ground of cruelty and husband can file a divorce petition.

• Lowering reputation of the husband by using derogatory words in presence of family members and elders.

• Lodging FIR against husband and in-laws which has later proved as false report.

• Conduct and misbehavior of the wife against husband i.e. pressuring husband to leave his home, insisting for the separate residence, mentally torture and disrespectful behavior towards husband and in-laws as well.

• Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, Impotency of wife, illicit relationship of wife with some other person and Wife suffering from the filarial.

• Extra-marital affairs of wife can also be a ground of cruelty against the husband.

• Initiating criminal proceedings against husband and in-laws of husband with mala-fide intention by the wife.

CASE LAWS: situations in Hindu marriage where a wife was held as ‘cruel’ to the husband and the Hindu divorce law was applied by the Supreme Court:

I. Mrs. Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16)

In this case petitioner/wife filed a false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as false in a court of law so it can be considered as cruelty against husband.

II. Anil Bharadwaj v Nimlesh Bharadwaj (AIR 1987 Del 111)

According to this case a wife who refuses to have s*xual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband.

III. Kalpana v. Surendranath (AIR 1985 All 253)

According to this case it has been observed that where a wife who refuses to prepare tea for the husband’s friends was declared by the court as cruelty to husband.

Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. A strict law need to be passed by the parliament for saving the institution of marriage and to punish those women who are trying to misguide the court by filing false reports just to make the life of men miserable and ‘justice should not only be done but manifestly and undoubtedly be seen to be done’.

Anjuru Chandra Sekhar (Advocate )     10 May 2013

You cannot learn swimming sitting on the bank of a river.  You have to dive into water.  Read Section 13 of Hindu Marriage Act and judge yourself whether your story fits into any of the sub-sections therein.  Apply for divorce.  When summons are served on her you are in water.  However my opinion is your wife did not desert you yet. Generally wife goes away from home and settles at parents place.  As there is no separation yet, I feel there is still possibility of reconciliation.  Why don't you think of partitioning the house if it is owned house and keep parents in one portion and wife in another portion?

Tajobsindia (Senior Partner )     10 May 2013

 

1.    If ultimate thought line is towards separation from wife and parents then why not try separation from parent first for few months and see if there is any change in wife’s daily behavior. If it works bringing back harmony in your matrimony then one should think on such lines.

2.    If above trial-error way of life fails then option is to hire an advocate found via reference and opt for appropriate civil / criminal remedies in a Court of Law.

3.    All your rest of the questions are speculative as with brief facts not much can come forward as advice. However let me try making some sense out of them for you;
Alimony is decided based on status of spouse, reasonable needs, education / qualification of spouse, minor(s) in status quo custody of custodial parent, capacity to earn of spouse,  and re-marriage capabilities of parting gender.
Dowry charges people say will never fall as everybody claims 'I never took dowry' for the same one has to meet once wife r/w in-laws in Courts to know how easy it is to admit a dowry case and then sisghtseeing of courts starts for proving once innocence strating from few furnitures to complete household goods given for next 7 enerations allegations:-) 
DV cases are dream violence based, you being husband may be having certain dreams and parallel your wife shall have her set of dreams  and Court readily accepts her set of dreams so wait and discover them to interpret as and when she translates her dreams into template complaint paras and then journey starts to prove they were bald allegations and actually dreams not domestic violence as I fed her well, gave her daily even my last drop of protein, took her to all malls in town and whole world blah blah.....
Properties in name of parents is good way to alienate spouse from claiming such rights till certain law comes into force and like you mention in your facts is what you have already done I feel it was right way to do given to understand contentious acrimony between spouses..
Custody one can apply before 18 years which is not major issue in reference to your brief. But before that you are always eligible atleast to apply for visitation if you want her to remember who her father is instead of at her certain age telling her I am your father.
Financial security for child thinking is nice and one can create such corpse funds from now on making her nominee opening a U/G Bank Account and while the deposits touch certain lower figure automatic conversion into F/D can be instructed to Bankers with encashing facility limit set at certain age (systematic investment – withdrawal plan can also be incorporated into it) and for all these wizardry sit with a finance consultant / CA and act accordingly. 

Adv k . mahesh (advocate)     10 May 2013

1. at this age you are thinking of taking divorce and separting from parents but you need there properties

2. talk to your wife and what she want plan accordingly and also to your parents who supported you throughtout your life and now you are keeping them away 

3. decide this is your child who is 18 months and it is your duty to give her a better life as a parent 

R K........ (Analyst)     11 May 2013

dont break any relation and just shift to some other place with your wife

But if you have decided so cant live with your wife, then dont say it, let your wife say this thing otherwise she can ask for any unreasonable amount as alimony

Although there is no such rule for alimony and it depends upon the negotiations but generally in mutualy agreed divorce initiated by wife, thealimony ranges from 1 year salary of man + half year salary for daughter also in your case

e.g. if your income is 10Lakh per annum, then one time permanent settlement alimony can be between 10-5 lakhs

 

Note: i am not a lawyer but have seen many such cases of settlement

 


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