Civil Procedure Code (CPC)

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supriya (home maker)     23 October 2014

Tajobs please answer

Dear Tajobs Sir,

 

Please answer my query, i have read few posts by you in this forum and asking you some of my queries:

If husband and wife living seperately for nearly 3 years, can this be a ground for husband to seek divorce? Will he get the decree? What remedy is available to the wife:

If husband is abroad and he is in touch with his family, wife has landline bills which shows the abroad calls and also facebook posts and pics. But he has deserted his wife and also his parents are denying any connection with him in Police Station and also saying that they dont have any relationship with him. Police is asking the wife to file 498a so that action can be taken and police can find the where abouts of husband.

Wife is not willing to go for criminal cases, and also not interested in taking divorce. What kind of legal notice can she send to her in laws and husband to secure her stand in future if husband files divorce.

What legal remedy is available for a women who is deserted by husband ( he is doing all this becoz of his bl**dy sisters and brother in laws) he is being misguided by them and is not having any contacts with me.

He proposed me and got married and doing such crap things after marriage. I dont want to file RCR or maintainence. Because i dont want his money i want to earn my living.

Please let me know which court should i approach and how?

 

Whenever i approach a advocate they ask me to file 498a DVC and Sec 125. If i say no they ask me to file RCR, police says they will not register a missing case as this person is willingly hiding and asks me to file 498a and DVC,

498a and DVC in the eyes of court is cruelity ..then what i am i supposed to do? What he is doing with me is it not cruelity? I am not saying that i want to hang on to him like a parasite. I will adopt some poor kid and live the rest of my life. I am fed of this bl**dy institution of marriage, i dont trust anyone now. I just want my husband to realise that he cannot play this hide and seek game with me and enjoy his life abroad.

 

Please give me some suggestion.

 

Regards

Harassed Wife



 21 Replies

Satyadarshi Kunal (advocate)     24 October 2014

I may not be the one you are looking for. However, I would like to address your query.

Separation is a ground for divorce. However, separation under the law tends to mental separation. Hence under the circumstances stated by you, a divorce case filed by your husband will not survive in a court of law. Further, you have not deserted your husband but your husband did. Hence even desertion is also not a ground for divorce under the given circumstances.

how can you safeguard your rights and interest:

1. You can claim maintenance from your husband as your right.

2. You can file a petition under section 9 of the hindu marriage Act (By your name, i am presuming that you are a hindu) for restitution of conjugal rights

3. you can visit a marriage counsellor.

 

Regards

Tajobsindia (Senior Partner )     24 October 2014

 

Originally posted by : supriya

 

@ Author, 

Observation:
First I donot like https://www.youtube.com/watch?v=DbMYEcoNGOM 
Reasoning: In this very forum there are (qualified Advocate) ld. brothers who are eager to reply and if you single out only me then they will not get chance to express their opinions. Hence make a habit to ask questions addressed to the forum and not specifically to me.


Now here are my eGyan to your specific questions;


Dear Tajobs Sir,

Please answer my query, i have read few posts by you in this forum and asking you some of my queries:


If husband and wife living seperately for nearly 3 years, can this be a ground for husband to seek divorce? Will he get the decree? What remedy is available to the wife:
Take: Yes, assuming both parties Hindus then invoking desertion clause a divorce suit matter can be filed by him. Party awarded a decree depends on quality of pleading, arguments and reasonable evidences. Remedy is to ‘contest’ his suit matter and deny allegations of alleged desertions OR file suit for RCR.   


If husband is abroad and he is in touch with his family, wife has landline bills which shows the abroad calls and also facebook posts and pics. But he has deserted his wife and also his parents are denying any connection with him in Police Station and also saying that they dont have any relationship with him. Police is asking the wife to file 498a so that action can be taken and police can find the where abouts of husband.
Take: Police may suggest you to travel to Mars as now-a-days Hon'ble PM says the space travel is the cheapest in the world so will you travel book your journey via PMO? Ideally to find whereabouts of husband in instance facts S. 498a IPC is not required. Even with maintenance award in favor of wife any competent Court can direct Police to find whereabouts of husband via RCN after following due course of Law and related procedural laws, so S. 498a IPC is not at all required to be filed for same effect.


Wife is not willing to go for criminal cases, and also not interested in taking divorce. What kind of legal notice can she send to her in laws and husband to secure her stand in future if husband files divorce.
Take: If wife is not interested to file Criminal cases then do not file so and so. If wife is not interested in divorce then wife has three options and those are; ‘contest’ his suit matter and deny allegations of alleged desertions OR file suit for RCR. OR seek 'separation' decree by convincing arguments that husband’s divorce case is fit matter for awarding ‘separation’ decree to parties instead of divorce. Only Legal Notice that can be sent by wife to her husband is for RCR from above three options she has. Only Legal Notice that can be sent by wife to her In-Laws via husband is for RTR (right-to-residence).These two stands by a wife are normally allowed till parties decree in divorce or decree of separation happens.  
 

What legal remedy is available for a women who is deserted by husband (he is doing all this becoz of his bl**dy sisters and brother in laws) he is being misguided by them and is not having any contacts with me.
Take: A very sensitive sub- question this is. Woman has recourse under maintenance laws of the land + recourse is available for RCR + recourse is available for RTR.  


He proposed me and got married and doing such crap things after marriage. I dont want to file RCR or maintainence. Because i dont want his money i want to earn my living.
Take: It is your call, I can just point you to the door, you want to go through it or not is your call. BTW, for marriage a proposal or love happens otherwise no one gets married as in bolt from/ out of the blue; it is thus said so as folklore !


Please let me know which court should i approach and how?
Take: For Civil Family matters a Civil (Family) Court. For Criminal Family matters a Criminal Court. RCR + Maintenance are civil matters of parties. RTR is granted under DV Act so it is adjudicated as a quasi-criminal matter. Search for an advocate found via reference and after due diligence with h/er appoint h/her for your case(s) that you want 'justice' from. 


Whenever i approach a advocate they ask me to file 498a DVC and Sec 125. If i say no they ask me to file RCR, police says they will not register a missing case as this person is willingly hiding and asks me to file 498a and DVC,
Take: RCR and S. 24 HMA can be filed as S. 24 HMA is for maintenance. Police is right as for a missing person report the person should be found to be missing whereas on one of the paras you have proof of ISD calls + regular FB updates and the moment you show these to police how on earth you expect them to raise alarm (i.e. husband is missing and lodge missing person report) answer this yourself?  


498a and DVC in the eyes of court is cruelity .then what i am i supposed to do? What he is doing with me is it not cruelity? I am not saying that i want to hang on to him like a parasite. I will adopt some poor kid and live the rest of my life. I am fed of this bl**dy institution of marriage, i dont trust anyone now. I just want my husband to realise that he cannot play this hide and seek game with me and enjoy his life abroad.
Take: Peoples ‘facts’ make mentioned pleadings sound like ‘cruelty’ and applicable law on cruelty is Civil as well as Criminal and ld. Court sits on respective judgment using respective procedural laws. You are first of all supposed to sit with yourself for a long time to make a call what you want ‘out of this marriage’. If your mind (not heart) says I want RCR then opt for RCR. If your mind (not heart) says I want Divorce then opt for divorce. If your mind (not heart) says I want Maintenance then opt for maintenance. If your mind (not heart) says I want that 'justice' should be done then opt for civil or criminal procedure i.e. 'cruelties' Laws. If your mind (not heart) says I want husband should be your lapdog then that even ld. Court cannot force him to succumb to leave aside my replies ! As far as 'adoption' is concerned, only after decree of divorce you can be allowed to adopt and not before that as Law on adoption is such OR with 'consent' of your husband you can be allowed to adopt, do you think he will give consent :-) . Marriage is a wonderful stage that happens to two genders whose well being both persons nurture for very long and by only one person making all the efforts to kick the marriage alive then either that one person should be selfless or should have divine patience or should be madly in love with other person and that is institution of marriage in Asian cultures all about in short. Since you donot trust anyone now then I doubt these replies should not even be trusted ;-). If you want your husband to realize his alleged games then Civil or Criminal Laws usage are what one opts for and mere saying in frustration and/or helplessness -  exasperations just makes that person ‘keep on searching’ for answers when in the first place the ‘answers’ were right in front of that person. 


Note:
I am aware what actually you meant by your half dozen questions and  some of them self answered by you, unfortunately I cannot force you to opt for one set of Law (civil and/or criminal) all I can advice are directions and if probed further then I can further tell pros. and/or cons. of civil or criminal Family Laws so you need to ask specific questions instead of engaging my time into emotions – sentiments aka sari. sindoor & glycerin , as I am not good in investing time into such aspects of {a prospective clients} PERSONAL (marital) LIFE. Also since you have already consulted – approached an Advocate and Police apart from In-Laws so I pre-assume you just needs hints not chapters, verse, paras, commas, page – by –page replies from me ! ??  I hope you will soon see light shinning at the end of your current predicament and that light according to me is referred to as PEACE with thyself i.e. moving forward in life as what is not meant to be yours should not be tied down till eternity but that also after making few efforts to see if he can be brought back to normal marital lifestyle, otherwise seek finality as in PEACE and move forward in life . Lastly, believe me various Indian adversarial family laws breaks two persons forever and rarely ever joins same two hearts that is said in 21st. Century context rest it is your journey, take a ......................  

 

[Last reply – even. pls. no PM on same facts]

 

 

 

Jimmy (Manager)     24 October 2014

  • Simple emotionally-driven question(s) and the most idiotic set of answers by TajobsIndia.  Not surprising but his answers are getting longer and more nonsensical.
  • Simple analysis: Man has deserted his wife and this woman has the right to file for divorce based upon desertion but not the other way around. Mere separation for more than two years does not imply desertion. The party claiming desertion must show that the separation was not necessitated by circumstances (example, posting of the man in a prolonged war or an overseas assignment where the spouse failed to get  a visa).  If the separation was a result of one party refusing to live with the other party and if proof of this refusal is available, then divorce can be claimed based upon desertion.  Creation of circumstances that makes the other party difficult to reside with the husband/wife is also desertion.  Such circumstances are not necessarily cruelty-based. A husband residing abroad who refuses to provide visa support to his wife to allow her to stay with him is also subject to a claim for divorce based upon desertion. 
  • Rest of the query is an emotional outburst and TajobsIndia has responded with his trademark ramblings, lacking in substance, correctness or precision.

stanley (Freedom)     25 October 2014

@ author .

Its very sensible of you to note that you dont want to file false criminal cases like 498 A and DVA although being forced by some stupid lawyers and police to file these cases as stated in your post . 

 

1. If you dont wont divorce its is upto you not to agree for MCD  . He will not get divorce until he proves what ever false allegations he levies on you in his divorce petition as and when he files it . Also he cannot get divorce on the grounds of desertation as he is the one who has deserted you and you have not deserted him . 

2. It is not necessary to send any legal notice and waste your money on lawyers fees. 

3. its high time you pick up a job and keep your self occupied and self sufficient .

 

There is no recourse to you under law as you state you dont want divorce nor do you seek maintenance . you can file  RCR and it may be passed in your favour but no court can force the two of you to live togather . 

 

The fact that you approched police sent alarm bells ringing into the parents ears and hence they have denied any connection with their own son .

great india (manager)     26 October 2014

Read all posts...esp tajobs thrice.... Your thoughts need action now.... Since you are aware if all laws and yap u already have visited p.s..... Time for action..... Choice is yours

CompelledToLearnLaw (Financial Examiner)     26 October 2014

Originally posted by: Jimmy

“Simple emotionally-driven question(s) and the most idiotic set of answers by TajobsIndia. Not surprising but his answers are getting longer and more nonsensical.”

 

Jimmy, brother, Tajobsindia’s answers are complete, not long. There is no upper limit for legal advice. U might not find his answers entertaining but the querist will find them very helpful. If internet technology did not exist, and if lawyers like Tajobsindia did not provide pro bono advice, the querist would have had to shell out cash for the same answer.

 

His advice, I notice, is up-to-date. To put his advice to practice, one might need to approach higher courts as the lower courts and the police are very ignorant. Even the querist’s future lawyer may be ignorant.  

 

 

Carry on Tajobsindia: aap toh LCI ki jaan hai jaan. Just one politically-incorrect request: pls ignore ladies’ questions. Try ur best to answer queries of falsely implicated men. Do not feel sorry for the ladies. They know how to act and gain sympathy. When their husbands find out they r characterless, then, they start this drama of sati savitri. I mean it’s not like the husband spent lakhs on a wedding only to leave her a few months later so that his family’s honour can be ruined. These ladies will never tell u the truth behind desertion. More often than not, deserted wives, and 498a wives have loose character: after marriage, they keep in touch with their past boyfriends and make new ones. Believe me, even if the husband is as good looking as Salman Khan, and has money, and is very caring, they still do the same. When a husband who has honour, refuses to live with them, then, they file 498a or do this drama of a sati savitri.


(Guest)

Hello, 

i only visit LCI to read tajobsindia reply. He is jaan of LCI. Compelled to learn......we know each other very well as we are in same forum ......got it. I know how big fan you are of tajobs.

Jimmy (Manager)     26 October 2014

  • My comment about TajobsIndia are based not merely on the length of his answers but the clear inaccuracies in them or at least a lack of intellectual substance. On the face they appear to be complete but in reality they lack intellectual substance and can often mislead the inquirer given the score that TajobsIndia has acquired through his prolific participation in this forum. I do however acknowledge that TajobsIndia has good faith intentions in providing answers. When a person acquires a certain score in any professional forum, it brings with it certain responsibilities. This is so because readers tend to lean towards that professional's opinion at times accepting it as the gospel truth. And TajobsIndia's answers in many cases are outright wrong or at the minimum misleading.
  • Here is an example of TajobINdia's inaccurate or at least incomplete answer:
  • If husband and wife living seperately for nearly 3 years, can this be a ground for husband to seek divorce? Will he get the decree? What remedy is available to the wife:
    Take: Yes, assuming both parties Hindus then invoking desertion clause a divorce suit matter can be filed by him. Party awarded a decree depends on quality of pleading, arguments and reasonable evidences. Remedy is to ‘contest’ his suit matter and deny allegations of alleged desertions OR file suit for RCR.  
  • The answer cannot be an unconditional "Yes" as he puts it.  The fact of "Living separately for 3 years" needs to be analyzed and only after that analysis can one answer in the positive or negative. Who is responsible for the separation? Is it in any party's control to bring an end to the separation and live together and if so, what is the basis for that party to continue to live separately.  There is just too much of factual analysis that needs to be done before a firm answer can be provided.  TajobsIndia takes the time to provide lengthy answers and therefore brevity is no excuse for him to give misleading answers with incomplete facts available to him.
  • His answers to the rest of the query is a bloated response to standard issues in matrimonial disputes. Nothing impressive whatsoever. It could have been written in a few sentences.
  • I can give many examples of such misleading, unnecessarily long and sometimes outright wrong answers by TajobsIndia.
  • There are some advocates who are brief and I find their opinions much more accurate and helpful: Adv. Chandrasekhar and Adv. Kalaiselvan, for example. Their opinions have ten times higher quality than Tajob's and I mean this because they participate selectively and only when they are sure of their response.
  • Tajobji, I do not mean to offend you.  Your intentions are commendable but the quality of your answers need to improve significantly.
  • Readers come here to get help on legal matters, improve their knowledge and help others based upon their own experience. This is not a site to develop a fan following, or so I hope.

 

498A-filed (Advisor)     26 October 2014

I agree with CompelledToLearnLaw completely.

supriya (home maker)     26 October 2014

Thank you everyone for replying on my query and giving your valuable suggestions.

Let me ask few very pointed questions:

 

1. Can i file maintaince? i am earning a decent amount and employed in a reputed MNC. Husband's salary is 3 times that of mine.

2. If i file maintaince, he will contest and not give me any mone.. i dont want also..he might not come out of hibernation for this case..as his councel can represent him. Also, if i file maintaince i cannot file 498a later is it true?

3. We use to reside with his parents ...his parents might not accept the notice stating that he doesnt stay with them and also they dont know his whereabouts. Then what is the fate of my case?

4. The complaint for 498a should be comprehensive, do i have to give a concise compaint for maintainence. So the contents of maintainence should also contain allegations and proofs on dowry harassment.

 

If there is any advocate from hyderbad then please let me know. I would like to meet personally and discuss.

 

Regards

hema (law officer)     26 October 2014

@Supriya, now you have taken a wise decision.  Contact hyderabad advocate and get your doubts clarified.  You are a very confused one.  If you do not want mainteance, do not file maintenance case.  If he has committed any wrong under Section 498-A, then you decide your self whether you want to resume marriage life or not.  If you want to give a chance to marriage life then do not give complaint u/s. 498-A.  It will not help you in that direction.  If you think that he should be punished for his matrimonial offence related to dowry, then go for 498-A.  If his wrongs are not offences, but milder in nature, then discuss with your advocate about domestic violence provisions.  About divorce or restitution of conjugal marriage or mutual consent, all can be answered by your advocate.  Wish you luck.

@compelled to learn law

 

Carry on Tajobsindia: aap toh LCI ki jaan hai jaan. Just one politically-incorrect request: pls ignore ladies’ questions. Try ur best to answer queries of falsely implicated men. Do not feel sorry for the ladies. They know how to act and gain sympathy. When their husbands find out they r characterless, then, they start this drama of sati savitri. I mean it’s not like the husband spent lakhs on a wedding only to leave her a few months later so that his family’s honour can be ruined. These ladies will never tell u the truth behind desertion. More often than not, deserted wives, and 498a wives have loose character: after marriage, they keep in touch with their past boyfriends and make new ones. Believe me, even if the husband is as good looking as Salman Khan, and has money, and is very caring, they still do the same. When a husband who has honour, refuses to live with them, then, they file 498a or do this drama of a sati savitri.



I also request Tajobsindia, spread his gyan only to husbands and not to give advice to wives and other women.  Women will be immensely benefitted in the absence of your advice and you spread your gyan about unconstitutionality of Section 498-A and D.V. Act.

(Guest)

Supriyaji,

i am not a lawyer but you post attracts me due to reason tajobs answer the same. But after reading your pist I realised that you are holding 498a weapon to fire on your hubby. It's unlikely as 90 pct women filed 498a case without giving a second thought on it and consequences are beyond control and relations are reap apart. I am sufferer of 498a demon so I can tell you my feeling of facing this case and how much I start hateing my ex wife. Don't get into the trap of police as they will try to force you to file 498 a showing shower of moon and stars on you. As there intention is only to milk your husband as he is NRI as well.

My advice to you is to file civil case on your husband like S 125 etc without putting any false allegation on him and after you get chance of mediation they might be things fall in place. Sooner or later things will improve. I can take my wife back if she don't file 498 a on me but now there is no chance. So think and act at this juncture of time. Don't be in group of metro ladies who use 498a to satisfy there ego.

god bless you and may God help you to reunite with you hubby.

1 Like

supriya (home maker)     26 October 2014

Hemaji,

I am not confused one.. i am not gettng a convincing answer from the advocate i met so i want to take inputs from the experts here.

As far as what you replied my question was not one whether to file the maintaince , i want money or not ...not all those. I want the know the outcome.

Thanks for your advice.

Jimmy (Manager)     26 October 2014

  • Hema's advice is concise and good. To add to it, if you do file for maintenance, you can qualify for it because maintenance is to allow you to have the same living standard as your husband's or that which you were used to while living with him.   Therefore, if he is making three times what you are making, perhaps you do qualify independent of the fact that you are earning sufficiently. You will need a good advocate to argue your case and to draft the application intelligently.  As there are conflicting laws on the issue of "waiver" or "laches" in maintenance, it is important to get your application in.  Otherwise, his advocate can later argue that you never filed for maintenance because you never needed one and that you are thereby bared from filing now.  Section 125 Cr.P.C. is usually the preferred mode for filing maintenance because it has historically been more liberal to wives, both in terms of language of the statute as well in terms of judgments. 
  • As for serving the petition/application on him, there are various ways of getting around this issue and your local advocate can guide you on this. 
  • Maintenance and dowry/498/DV are totally different beasts.  They are not mutually exclusive.  Nothing prevents you from filing all or none or just one of them. Just be consistent in your factual recitation.
  • You sound like a matured person so giving you any advice of not filing any false cases would be childish on my part. 

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