• Contested divorce without filing for alimony/maintenance or DV

Hi,

I am planning to file for contested divorce petition on grounds of mental cruelty against my husband. We have been married for over 5years and its been an emotionally abusive relationship from the start. Also he is involved physically with his colleague and has admitted to it in an email to me.

I am not interested in alimony or maintenance and my lawyer is advising I file for divorce without making asking for alimony/maintenance. He has also advised that I dont go through the domestic violence route as well since it will drag on the process. He says no financial claims divorce will go through faster through the courts. 

Do you think it is wise to file without any claims or should I insist on alimony/maintenance to put pressure on them to settle on MCD? My husband doesnt want a divorce as he feels it will impact his image at work. We have been living separately for 15months now.

Is a divorce without claims move faster through the court as am sure they will try every trick in the book to delay the process?  Also am confident today they will not agree on MCD so wondering how long can they delay the matter in court if no money is involved. I just want my freedom so I can move on with my life.

My only concern is we have jointly bought a property (we both put in equal amounts) so what happens after I get my divorce. Can I sell my 50% stake to a third party assuming they dont agree to buy it from me?

I sincerely thank everyone here for all the help.
Asked 2 years ago in Family Law from New Delhi, Delhi
Religion: Hindu
Hi, if you don't want alimony then don't seek alimony from him.
2. As your advocate rightly said without asking maintenance you may proceed faster in the case.
3. Filling a case under DV act any other provisions of the act is not bring the pressure on the other side but law has to be used as a protective shield and not as a weapon.
4.For the house property you are not able to sell your 50% of share better any one can release your right so one can enjoy the property.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
PLEASE PROCEED WITH DIVORCE PROCEEDINGS. YOU CAN ALWAYS ASK THE COURT TO GRANT YOU A DIVORCE DECREE ON GROUNDS OF CRUELTY AND ADULTERY. 
THE ISSUE OF 50% OF THE PROCEEDS OF THE HOUSE PROPERTY CAN ALSO BE RAISED AS IT IS A VALID POINT.
Tulika Prakash
Advocate, Gurgaon
113 Answers
66 Consultations
5.0 on 5.0
1. In addition to cruelty you can also seek divorce on the ground of cruelty if your husband is 'physically involved with his colleague''. You will require proof of his extra marital affair. The email wherein he has accepted his extra marital affair can prove to be the last nail in the coffin of his defence in divorce proceedings.

2. Divorce and domestic violence are two separate cases which will be decided by two separate cases. So even if you file for alimony or domestic violence it will not impact the progress of the divorce case as these are two substantive proceedings which operate untrammelled within their respective spheres.

3. You can seek alimony only if you have no earnings of your own. If you fulfill the eligibility criteria to claim alimony then you should claim it, more so in view of the fact that he has refused to opt for mutual divorce. It is a flawed legal strategy if one foregoes the right to institute a legal process when the facts and circumstances permit him to institute it.

4. Is the joint property free from an encumbrance? If yes, you as the joint owner can sell it even now to the extent of your share therein and create unimpeachable third party rights.

5. Your husband cannot delay the divorce case till eternity. Expect a decision within 1.5 years if the case is in Delhi.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
1. The pace of divorce suit never depends on claim or no claim of alimony. on the contrary one should always ask for maintenance if she is so eligible.
2. Since there happened occurrences of marital violence, you can initiate action under PWDV Act as well.
3. You continue to be half owner of the house even after divorce and can sell your undivided half share at any point of time.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1) your husband is not willing to agree for mutual consent divorce .

2)under the circumstances you have to file for contested divorce on grounds of mental cruelty . 

3) better claim alimony / maintenance from your husband . 

4) contested divorce take 5 years to be disposed of 

5) if your husband is willing to settle you can always make application for conversion of petition into divorce by mutual consent . at that stage you can give up your claim for alimony/maintenance .

6)you need not file Dv case as it takes over 5 years to be disposed of . 

7)since you are a joint  owner of flat you have 50%share in said flat . you can  s ell your share in flat to your husband or to  third party
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
Hi,
1. file a divorce under cruelty and adultery, once the case is filed see that whether the mediator or the counsellor can make your husband to agree for amicable settlement.As there is no point in dragging the matter.You can also mention in the divorce petition about the joint property so that court will pass an order .

2. Once the divorce granted to you , you can file for a permanent alimony under se.25 of the hindu marriage act, if you wish then.

3. A divorce case normally takes 1 to 2 years unless advocate drag it, and regarding  domestic violence case file it if you really need the reliefs of shared accommodation , residence order or maintenance.

4. The joint property which you have mentioned  can be sold and the amount can be shared equally, for this you can move an application in the divorce court later in the proceedings stage, or at the time of filing the divorce or separately in a civil court,.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
Hello,
1) There are two grounds on which you can apply for divorce in your case. One on grounds of cruelty and another adultery.
2) In my opinion you should ask for alimony and bring about pressure on him to settle for an MCD. Your claims are not going to determine how long the case will take to be disposed of.
Regardless of the claim a contested divorce should take similar time as he would employ delay tactics as he does not want to give you divorce.
3)As far as the property is concerned you have 50% stake in it even after you are divorced. You may sell it any time you wish to do so.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1. It is not at all a fact that No Claim Divorce petition is disposed of faster,

2. The duration of case depends on the load on the court and also how the opposite party is contesting the same,

3. Normally police complaint u/s498A, DV case, maintenance  application etc are filed, inter alia, to put pressure on the husband to agree for MCD,

4. You should file those cases to presurise your husband to agree for MCD,

5. You can sell your share of the joint property after pre-empting i.e. after offering it to be sold to your husband at the same price offered by the third party.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1. When you file for divorce the court will issue him a notice to enable him to contest your case. He can delay the case by not appearing in the court on the date appointed for hearing, but there is a limit to it. The court would not wait for him till eternity. Judicial process cannot be held to ransom.

2. Only a Kolkata based lawyer can tell the average time which the courts in Kolkata take for deciding a divorce case. In Delhi the average time is around 1.5 years. Since you are settled in Delhi you should file the case in Delhi.

3. An e-mail communication is a valid evidence which can be used in the court. Whether the court will accept it or not depends on the contents of the message and the outlook of the judge.

4. You are free to sell your share in the property. Since your parents-in-law and brother-in-law are living in the property you can file a suit for partition of the property to cull out your share therein. After partition you can sell it to any one you desire.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
1)your husband can delay proceedings by not filing his written statement on time , not appearing before  counsellor , seeking adjournments . further depending upon pendency of cases in court  dates are given . 

2)you can file for divorce in kolkata or delhi . since marriage was solemnised in kolkata ou can file it in kolkata also . only local lawyer can tell you time taken for disposal of cases 

3)emails are admissible in evidence 

4) dont try to sell your share in flat now . it will further antagonise your husband and his family .you can  file suit for partition of flat . if you so desire

5) your lawyer can issue legal notice for partition . if husband dosent agree file suit for partition . you dont have to publish any letter in newspapers
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
Hi, email are valid document s in the eye of law you and it will help you to prove your case based on that only you can prove your case.
2. Your husband may use delayed tackties filling one application or the other.
3. Finally it is difficult to say the exahast time to end the litigation  and if you win in trial court your husband will go to High Court and later Supreme Court it is better you settle the matter amicably.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. There are many ways known to the advocates to delay the proceeding. One is to grease the palm of the court officer to fix a very long date. It takes just Rs.50 to get it done. He can also keep on fililing applications for adjournment on the ground of illness of his senior. There is a long list about the do-hows,

2.  You can file the divorce case in Kolkata also. There can not be a general comparison since all the cases are unique in nature & it depends of the contesting side,

3. Your feeling uncomfortable in filing cases to put pressure on your husband can make you unconfortable to find his reluctance to agree for divorce. Emails are treated as valid evidence,

4. You can sell your share of the property if it is dividable. You can send him a lawyer's letter informing about the price you are getting to sell your share of the said property asking him to confirm within 7 days about his willingness to buy the same within 30 days. Send the said letter by speed post and preserve its track record duly collecting it from the site of indiapost. com.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1) it is not a joint family property 

2) the flat was bought by you and your husband out of your income . 

3) the fact that your brother in law is unemployed and his son has learning disability is immaterial 

4) you have been rightly guided by your lawyer
Ajay Sethi
Advocate, Mumbai
23397 Answers
1229 Consultations
5.0 on 5.0
Hello,
1) Rest assured that the property being jointly owned by you, your 50% right in it indefatigable.
2) The fact that your brother in law's son has has no remote impact on it.
3) Their residing in it has nothing to make out a family property. Mere possession doesn't allow ownership.
4) That these things have no bearing on your property right is certainly a right advice from your advocate.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
Hi, all the above factors will not consider at the time of divorce as your advocate has rightly advised it is between you people and in the property you have 50% share and other matter will not consider by the court.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. The property is jointly owned by you and your husband. Your brother-in-law has no share in the property So rest assured the court will not take into consideration the learning disability of your brother-in-law's child.

2. The property will be divided between you and your husband. It is not a joint family property.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
1. Propertiy can not be made to 'look like joint family property',

2. The title deed will specify whether it is a joint family property or in the joint names of you and your husband,

3. Your brother in law and/or his son's physical disability has no role to play in your matter.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
Do you think it is wise to file without any claims or should I insist on alimony/maintenance to put pressure on them to settle on MCD? My husband doesnt want a divorce as he feels it will impact his image at work. We have been living separately for 15months now.
Opinion: First of all try to settle the matter amicably, if not possible then file the divorce before family court u/s 13(1)(ia) & (1A) of Hindu Marriage Act, 1955.
 you may file a maintenance case against him if you are unable to maintain yourself

Is a divorce without claims move faster through the court as am sure they will try every trick in the book to delay the process?  Also am confident today they will not agree on MCD so wondering how long can they delay the matter in court if no money is involved. I just want my freedom so I can move on with my life.
Opinion: There is no difference for divorce case with alimony/maintenance or without.
 

My only concern is we have jointly bought a property (we both put in equal amounts) so what happens after I get my divorce. Can I sell my 50% stake to a third party assuming they dont agree to buy it from me?
Opinion: If the property is in joint name then you are the absolute owner of the property till 50% of Share and you may use as per your wish or sell the same if you think fit.
Nadeem Qureshi
Advocate, New Delhi
3539 Answers
131 Consultations
4.9 on 5.0
1) What could be the ways he can delay the divorce process? 
Opinion: Its depend on him, he may delay to accept the summon, he may manage the post man, he may delay to file the written statement, he may delay in evidence, cross examinations, etc.....

2) I can also file in Kolkata as we got married in the city but are settled in Delhi. Any idea how much time do the courts in Kolkata take? Are Delhi courts faster than Kolkata?
Opinion: Delhi court is more faster then Kolkata, so it will be better to file the case in Delhi.

3) While I have documented evidences to proceed with DV, alimony and maintenance; somehow I don't feel comfortable using those options and want to fight the case on merit.  Will the court accept emails of him apologizing for subjecting me to mental abuses as evidence? 
Opinion: the emails or other digital evidence is accepted as Evidence.

4) Can I go ahead and sell my stake in the property today. There is no loan or any other liabilities on the property but his parents and my brother in law and his wife are also living in this apartment. The parents own their own property in a different city. How do I go about doing a pre-empting offer? Is that a legal letter that my lawyer should send them? Just worried that they will not respond and then claim they didn't get it. Can I publish the letter in a newspaper?
Opinion: you may send a legal notice related to your property and claim the same or demand the money against your share. Newpaper publication will  not be better option
Nadeem Qureshi
Advocate, New Delhi
3539 Answers
131 Consultations
4.9 on 5.0
you can file divorce on the ground of adultery. if he has accepted that he has been in relation with his colleague then place that evidence in support of adultery. MCD is not only option for you. once you file divorce petition on any ground then burden shifts on the opposite party to disprove it, if he fails to do so then petition will be accepted and divorce will be granted. if he wants to linger on the proceeding then you should place that evidence of adultery and enable the court to take decision as ex-parte. but in all case it'll take minimum 2 years to decide. 
after divorce you have right to get your share in the joint property, if property can't be separated then you can get market value of the property. don't leave your right of alimony because it'll decided by the court after giving divorce and it take hardly 1 year and you are not bound to appear in the court on each hearing.
Shivendra Pratap Singh
Advocate, Lucknow
2797 Answers
41 Consultations
4.9 on 5.0

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