• Making the first move for filing for divorce from wife

Hello,
My wife is harassing my mother and me everyday.  She picks up fights on small matters.  She also has taken the help of the local Mahila Mandal , politicians and police to threaten and intimidate us.   She has warned us  of adverse consequences if we file for divorce and that she will bring the Mahila Mandal people, police and politicians again and will "show us who she is".  The Mahila Mandal lady also warned of bringing TV channels to our residence if we try to divorce.  We are planning to file for divorce.

1.  Is it advisable for us to make the first move for divorce?
2. My wife is still living in our home.  What will happen if she gets the divorce petition when she is still in our house?
3. My wife is not working and is therefore in the house all day.  My elderly mother who also is at home,  stays in fear all day of her.  What can I do to safeguard my mother? 
4. Can the Mahila Mandal people still threaten us once we file our petition in the court?
5.  We have not demanded or taken dowry.  What can we do to protect ourselves from false cases?
6.  My sisters who live abroad call my mother and me to enquire about our welfare and how we are faring in this situation.  My wife is therefore claiming that my sisters are interfering in our married life.  Can she name my sisters in false complaints?  What should be sisters do in such a case?  Will they be able to travel to India?
Asked 2 years ago in Family Law from United States
Religion: Hindu
1. The mahila mandal people do not have any authority of law to take any action against you, but they really have a nuisance value. By calling the media persons they can defame you and your family by portraying your wife as a hapless victim. The media people will also come calling and give an extensive coverage to the story knowing that such stories generate a lot of TRP. You have lots of remedies under the legal framework of the country to redress the harassment meted out to you. Firstly, you can seek a stay order from the court against your wife and mahila mandal to restrain them from making any attempt to defame you. This apart, your mother, if she or your father is the owner of the house wherein your wife is currently residing, can file a case for domestic violence against your wife to seek protection for herself.  

2. In the circumstances narrated by you, it will be appropriate on your part to go ahead and file for divorce. Your wife will get an opportunity to contest your divorce petition on merits.

3. You cannot remove your wife from the house even after you file for divorce. The marital tie comes to an end only when the court grants divorce, and not on the filing of divorce. So she can stay therein even during the pendency of the divorce case.

4. Mahila mandal people have no authority under the law to interfere in the dispute between you and your wife, If they threaten you in any manner then lodge a police complaint against them.

5. In the event that your wife files a false case for dowry harassment against you and your family members then apply immediately for bail. Delay in filing for bail can result in arrest.

6. The practice in such cases is to enmesh in the rigours of law as many members of the husband's family as one can. So your wife may also swim with the current. However, your sisters can then seek quashing of the case after seeking bail from the Indian court. They will be able to travel to India.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
Hello,
1) It is advisable to make the first move for divorce under circumferences. You don't need to be living in fear caused by the intimidation your wife has exerted using the influence of the mahila mandal, politicians etc. As such legally they have no say in your domestic dispute and you are at liberty to seek assistance from law enforcing agencies to reign them in one you have filed for divorce.
2) There is no harm in filing for divorce while your wife is living with you. She will receive the summons at the same address and contest the divorce. You have no option to dispossess her of her accommodation while the divorce proceedings are in progress.
3) If your wife files cases making your sisters as well accused  it's advisable to apply for anticipatory bail immediately to avoid arrest . This applies to you and your mother as well.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
Namashkar
1.No legal right to mahila mandal. They have only right to conduct compelling .
2.you have to issue legal  notice  to your wife by saying her cruelty against your mother and you
3.U can file divorce petition but only thing is that you have prove your  wifes cruelty for that  u can record her voice when she is harassing your mother.and give a complaint in the police station saying her cruelty.
4. she can demand for maintenance by way filing maintenance case  that is mandatory even that also according to your financial conditions.
Namavarapu Rajeshwar Rao
Advocate, Hyderabad
13 Answers
0 Consultations
3.7 on 5.0
1. Yes, very much. At lest you can state these tortures in a  court of law vde a divorce petition. Applying for divorce is a legal right of a spouse and there is negativity in this.

2. Nothing. She can choose either to continue her stay therein or to move therefrom.
3.If there is any specific instances of tortures then you can apply for injunction against those activities.
4.Yes. complaint can be lodged against any person or public authority if they indulge in illegal activities.
5. There is no sword , you can only shield yourself if any case is lodged by way of applying for bail.
6. Since your sisters stay abroad complaint is unlikely to be lodged against them and even if it is done it will have no merit.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1) the best option is for you to file for divorce . you cannot bow down to constant harassment by your wife . fie for divorce on grounds of mental cruelty . 

2) your wife can continue to stay in your house even after you file for divorce. you cant evict her from your house during pendency of divorce proceedings 

3) record her threats .it will help you in long legal battle ahead .  your mother can also file complaint of criminal intimidation against your wife . 

4) your mother can also file DV complaint against your wife and seek protection order 

5) in case any false cases are filed by your wife against you and your family members under section 498A obtain AB 

6) mahila mandal people cannot threaten you if you fie for divorce . better install CCTV cameras around your house . the video footage will help you in apprehending any culprits that threaten you and your family members
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
Hi
1. As per the recent Delhi high court ruling  the mother-in-law can seek a protection against daughter -in-law under protection of women from domestic violence act 2005, so I strongly advise you to use this option if the house is not in  your and  your wife' names.
2. Regarding the apprehension of criminal actions Under IPC 498A, you should not worry as the supreme court has come down heavily on the misuse of  498A and specified guidelines. getting anticipatory bail or bail is not any troublesome affair as there is always an apprehension that a wife come up with 498A as  a weapon to fight against the divorce filed by the husband on cruelty grounds.
3. Your wife can get maintenance as she is not earning, saving this there is no hurdles to obtain a divorce under the given circumstances.
4. You should initiate legal steps to file for divorce, engage an advocate and discuss the best way to proceed considering your job and family's convenience.
5. once you send a legal notice or summons from the court , or even tll them that you have already filed  petition , they will stop their pressure tactics and advise your wife to take the help of an advocate.
6. She can stay in your house unless there is a refraining order from the court, till her appeal and final order in divorce.
7. Do you have kids, how many years since you are married?  you will get a chance  in the court for mediation and settlement once the divorce proceedings starts,then you  see whether there is a chance of mutual consent divorce and finish the matter .
8. Your mother can get a restraining order under civil law as well as criminal law, also will be considered her status as a senior citizen, such a situation, you can agree to offer for  a rental accommodation to your wife till the final order of the divorce.
9. In case of a FIR under 498A, your sisters can get bail and obtain exemption from appearance as they are working and living with their respective family in abroad.There is less chance the police include them and file FIR against them.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. Whom does the house, where you and your wife are presently staying, belongs to? Does it belong to your mother?

2. Let your mother file a DV case against your wife,

3. Collect evidence of all her cruel activities and threats through audio/video recordings,

4. File Divorce case against her on the ground of cruelty based on the evidence collected by you,

5. Also file a police complaint against your wife under copy to S.P. and file a petition u/s156(3) of Cr.P.C. praying for direction upon the police to investigate and act based on your complaint,

6. Contest all the cases filed by your wife on their merits.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
before initiating any legal proceeding let your wife know that in case she continues to misbehave with you or your mother you shall leave your house and reside elsewhere and she can live in peace alone. that ways either she will stop creating nuisance or you may be in a position to create ground for divorce. you may initiate this move in the presence of a few family members and friends who may testify on your behalf in court later on. 
till the time you are with her, create as much evidence as possible of her improper and cruel behavior and get and NCR lodged in the local thana regarding her criminal intimidation and abusive language and conduct  towards you and your mother. 
rest of the advice is personalized and can be given to you in detail via email
Tulika Prakash
Advocate, Gurgaon
113 Answers
66 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under

Is it advisable for us to make the first move for divorce?
Yes you should file the case against her before court under section 13 ( 1 ) of Hindu Marriage Act. If she filed any false cases under section 498A / 406 of ipc against you or your family members then it may be presume as counter blast case against you.

2. My wife is still living in our home.  What will happen if she gets the divorce petition when she is still in our house?
Opinion : yes it is possible.

3. My wife is not working and is therefore in the house all day.  My elderly mother who also is at home,  stays in fear all day of her.  What can I do to safeguard my mother? 
Opinion : your mother may file a complaint under section 12 of domestic violence act read with section 18 / of the domestic violence act before magistrate in your area and pray for protection. 

4. Can the Mahila Mandal people still threaten us once we file our petition in the court?
Opinion :- no they can not. If they threatened then file a complaint against them before court or police. 

5.  We have not demanded or taken dowry.  What can we do to protect ourselves from false cases?
Opinion : if she filed any false cases against you and your family members then fight the case on merit. 

6.  My sisters who live abroad call my mother and me to enquire about our welfare and how we are faring in this situation.  My wife is therefore claiming that my sisters are interfering in our married life.  Can she name my sisters in false complaints?  What should be sisters do in such a case?  
Opinion : if she filed any false cases against her then file a quashing petition before hc. Or apply for anticipatory bail. 
Fight the case on merit and try to prove your innocence before the court. 
Will t
Nadeem Qureshi
Advocate, New Delhi
3539 Answers
131 Consultations
4.9 on 5.0
1) if restraining order is passed against you also then you wont be able to stay in same house with your mother 

2)once restraining order is passed your wife has to comply with said order . 

3)once your wife is not staying in same flat as your mother she cannot terrorise your mother 

4) you have to offer her alternative accommodation since she is still your legally wedded wife . your wife cannot insist that she will stay in house owned by your mother against your mother wishes . 

5) you are at liberty to stay with her . you cant be forced to stay with your wife
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
1. The restraining order will be an order restraining your wife & the said mahila Mandal to threat you and creat any further nuisance,

2. You can file an application alongwith your mother praying for the said restrain order. It won't aftfect you adversely,

3. A copy of the restai8ning order will be served on police and if your wife fails to restrain herself, police will take action against her,

4. Yes, the restrain order will legally restrain her to act the way she acted against you illegally,

5. You should take up a new house on rent and your mother should file an eviction suit against her.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1. The retraining order can be sought by you against your wife and mahila mandal to prevent them from acting in collusion to harass and/or defame you. Both of them shall have to abide by the court order, failing which they can be sent to jail for contempt of court.

2. She can also seek a restraining order against you to stop further violence as she would claim in her petition that she is the victim of domestic violence. 

3. She can refuse to shift in the alternative accommodation which you will have to provide if the court mandates you to do so. The court will specify the nature of the accommodation.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0

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