• Regarding divorce

My brother got married in April 2017. Immediately after marriage his wife started mentally torturing him. She dont want to come and stay with my borther and still living with her parents . In last 10 months she came max for 8 days to stay with us. Also when my brother asked her many times to her  she came for 3-4 days ( when her parents forced) and attempted suicide here so that no body force her to come  again.She mentioned in that visit that she hate my brother and his family . We have hospital certificates for this Suicide attempt. Now neither she nor her family is replying to any of our calls. We want mutual divorce but she is not ready and not giving any reply . My brother is gone in deep depression in last one year . Please guide what steps we can take and also what counter false cases we may have to face if we file for divorce.
Asked 2 years ago in Family Law from Jabalpur, Madhya Pradesh
Religion: Hindu

first lodge a general diary over speed post, mention all facts without hesitation and submit the same.

get it written by her, that she does not want to stay with the your brother and his family and do get it written over email or whatsapp, there is a higher court judgement which says, if a hindu son is separated from his aged ailing parents then it is a very good ground for divorce, but to file the same on the same ground, you need to have strict evidence, so get your proof ready and then file for divorce.

Aveek Bose
Advocate, Kolkata
1067 Answers
7 Consultations

4.7 on 5.0

1) As they are leaving separately from last one year. You brother can apply for mutual consent divorce and tell court that our wait period is already started by leaving separately an year.

2) If his wife is house wife than you people have to pay alimony. Other wise she is working women than not.

3) the opposite part may ask for marriage expenses, gold purchase at the time of marriage stridhan mangalsutra etc. And alimony depending upon your brother's income and how money people are depends upon him.

If you require any more information can select consultation call.

Ganesh Kadam
Advocate, Pune
9026 Answers
74 Consultations

4.9 on 5.0

Very well said that you will face counter false case but you must initiate a litigation for divorce under section 13(1) Hindu Marriage Act with these documentary evidence having with you. And after all just because of counter case would be there, you cannot dipress yourself. Go ahead and make sure you will be first to knock door of Law as said above to secure FIRST COME FIRST GO RELIEF. Thanks.

Shaikh Pirpasha Ajamoddin
Advocate, Latur
18 Answers
1 Consultation

4.0 on 5.0

Only in exceptional circumstances cantiu file fir divorce before expiry of one year of marriage

2) file for divorce on grounds of mental cruelty

3) wife refusing to stay with husband after marriage amounts to mental cruelty

4) wife constant threats to commit suicide amounts to mental cruelty

5) contact a local Lawyer

Ajay Sethi
Advocate, Mumbai
72059 Answers
4334 Consultations

5.0 on 5.0

Immediately you must file a case under section 9 of HINDU MARRIAGE ACT. The date on which you file this case, will be the first date for calculating two years of desertion.What is ground of Desertion to take divorce, If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

So please file a case under section 9 of HMA and after two years of filing this case you must file a divorce petition. In the meantime, if you both would like to initiate a new life, both the cases may be withdrawn. (Please rate my answer.)

Raj Kumar Mishra
Advocate, Allahabad
64 Answers

4.0 on 5.0

They say marriages are made in heaven. But so is thunder and lightening. Please understand at times, despite our best efforts, life takes a turn for the worst. We may have wanted different things from life, but life’s got its own plan as well. A bad marriage is something which nobody hopes for, but at times, that’s exactly what we are given and forced to face head on. Please understand that there are some incidents that happen in your life and those incidents are so strong that they change your DNA. But there is a solution for every problem in law.

If your brother want to divorce as peacefully as possible, you can end the marriage and get a no-fault divorce without a lawyer using mediation.

A good mediator will:

• Help both of you discuss your future instead of arguing about your past relationship;

• Help to build trust and agreement through an open and transparent good-faith negotiation;

• Empower both you and your spouse to make the decisions that are in your mutual best interests.

But you say that your brother’s wife is not agreeing for mutual divorce. So your brother can file a contested divorce petition.

Please understand that the Supreme Court has held that "mental cruelty," "continuous harassment" and "threat of prosecution" of a husband by his wife would be a ground to grant divorce to the husband. Cruelty can be physical or mental. If from the conduct of his spouse, the same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case.

In an observation with far-reaching implications, the Supreme Court has said that a woman who deserted her husband and the matrimonial home and refused to return despite repeated requests are entitled to maintenance. You brother can also get divorce on the grounds of desertion.

Please understand that Constant suicide threats by wife amounts to cruelty and is a ground for divorce. No husband would ever be comfortable or tolerate such an act by his wife. And if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled in the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. Such torture would adversely affect the life of the husband. You say that you have hospital certificates for this Suicide attempt. So for a precaution your brother can inform local SHO of the police station and inform him through an application stating that his wife is having suicidal tendencies and you should not be held responsible in case such a thing happens. Inform the same to her parents and also to make her attend counseling.

For detailed discussion you can opt for phone consultation.

SHRI GOPAL VERMA

ADVOCATE ON RECORD

SUPREME COURT OF INDIA

Shri Gopal Verma
Advocate, Delhi
211 Answers
2 Consultations

4.0 on 5.0

Hi

If she is not ready for MUTUAL consent divorce then only option left with the you is a contested divorce case. You may have to face a Domestic Violence case and 498A IPC. As you are saying these would be false cases against you then nothing much to worry, police may give you a clearance certificate in investigation.

Thank You

Rahul Jatain
Advocate, Rohtak
1088 Answers
3 Consultations

4.9 on 5.0

Respected sir/mam...

you have option available to file a divorce case under section 13-A of HMA ...you just need to file a petition and mention all facts and circumstances in your case u will easily get divorcee decree from court ....just file petition as soon as possible for u because it will work as a defense when she will fill a number of fake cases against you..just hire a good lawyer who can draft your petition in a good manner...

thank you

Dinesh Sharawat
Advocate, Delhi
971 Answers
6 Consultations

4.9 on 5.0

Hello sir, it is advisable to give a police information regarding her suicide attempt and her mental tendency to commit suicide..if she is not willing to give mutual divorce you can file a contested divorce petition in the grounds of mental cruelty

Hemant Chaudhary
Advocate, Gurgaon
4333 Answers
32 Consultations

4.9 on 5.0

The way is to file RCR under section 9 of Hindu Marriage Act.

Even if after the RCR if she doesn't turn back file a divorce petition in the family court.

Please be prepared to pay the maintenance charges under section 125 CRPC and any alimony under finalization of divorce

Vimlesh Prasad Mishra
Advocate, Lucknow
6203 Answers
19 Consultations

4.9 on 5.0

Dear Query Raiser,

The best possible is to issue a notice to the other party for dissolution of marriage by divorce. In the said notice you may mention filing the application of divorce on the grounds of cruelty.

then if there is any response from there side then you may review the decision as per the situation.

Arun V S
Advocate, Jaipur
55 Answers

4.0 on 5.0

1. Hope you have already collected evidence of her refusing to stay with your brother or telling that she hates your brother and his family members.

2. If you have not yet collected the said evidence then collect it now in the form of audio/video recordings.

3. Thereafter lodge a police complaint alleging that she threatens to commit suicide and once tried to commit suicide if she is asked to join your brother by you or her parents.

4. Now wait for completion of one year of their marriage and then file a divorce suit on the ground of cruelty since threatening and also attempting to commit suicide for asking her to join her husband can be considered a form of cruelty.

5. she might lodge a police complaint u/s498A of IPC falsely alleging dowry harassment for which your police complaint lodged in advance against her will act as a shield in getting the FIR registered against you by the police.

6. She can also file a DV case which you shall have to contest fittingly.

7. Finally, she might get tired and agree to jointly file a MCD petition on agreed terms which will be decided within 6 & 1/2 months from the date of its filing.

Krishna Kishore Ganguly
Advocate, Kolkata
23548 Answers
640 Consultations

5.0 on 5.0

1. Since she is not ready for mutual consent divorce the only remedy in your brother's hands is to file a petition for divorce unilaterally on the ground of cruelty which she can contest.

2. Counter cases she may file are 498A and DV to seek maintenance, monetary compensation and injunction against the properties of your brother.

Ashish Davessar
Advocate, Jaipur
27476 Answers
812 Consultations

5.0 on 5.0

In any case you cannot file a divorce case before completion of one year from the date of marriage

Have you ever tried to find out the actual reason for her hatredness towards your brother and your family?

If her activities are strange and mysterious then either she should be mentally immature or unsound or there should have happened some bitter and undesirable experiences to her at your home.

You may introspect and ascertain the actual reasons for this and if possible try to reconcile the matter and make them rejoin and continue their broken marital voyage.

Otherwise your brother have to wait for one year and then file a divorce case on the grounds of cruelty.

T Kalaiselvan
Advocate, Vellore
61997 Answers
800 Consultations

5.0 on 5.0

1) contested divorce proceedings take 5 years to be disposed of

2) alimony is at discretion of court depends upon husband income , wife income , standard of living

3) wife has no share in property standing in name of in laws

4) if wife files false dowry harassment case apply for and obtain Anticipatory bail from sessions court

Ajay Sethi
Advocate, Mumbai
72059 Answers
4334 Consultations

5.0 on 5.0

How much time could it take for final outcome of divorce case if she is not ready to give. It goes on for several months, however, the legal position is the matter should be adjudicated expeditiously. Therefore, the petitioner's counsel has to press for limited, no and short durations of adjournments.

Also what could be ailmony when she is working with one third of my brother's salary but live in a block lebvel and also have ancestral property while my brother dont own any property - Alimony is mandatory and cannot be avoided. It will be granted based on the economic and social factors of the parties.

y parents own a house so can she claim in that? She cannot.

Rajaganapathy Ganesan
Advocate, Chennai
1671 Answers
8 Consultations

4.9 on 5.0

If you dont find any reason for her hostile attitude, just dont worry digging it.

Your brother should first send her a notice stating that she voluntarily abandoned the matrimonial home on the date..... without any valid reasons.

He should mention that he is ready to condone her past rude and arrogant behaviour and is willing to accept her even now anytime without any condition, hence she may indicate her willingness to rejoin him at the earliest or by a date to be stipulated therein.

He can also mention that if she is not willing to continue the married life with him then let she communicate the same and let she agree for mutual consent divorce after completion of the minimum period for filing one such case.

He must also reiterate that if there is no response for any of the suggestions given, it can be construed that she voluntarily deserted the matrimonial home due to which he suffered mental agony and depression, hence he would file a divorce cse on the grounds of cruelty.

This legal notice will evoke some response.

If she is approaching police with false cse, your brother should first obtain AB and then challenge her false cases in the court properly

The maintenance aspect will be decided by the court based on her proof about his income and your brother proving her income.

She cannot claim any share in his or his parents property as a right.

T Kalaiselvan
Advocate, Vellore
61997 Answers
800 Consultations

5.0 on 5.0

If your sister-in-law and brother is mutually agreed on divorce, then it will take 1 to 6 months depending upon the court. But if your sister-in-law is not agreed for divorce, then you will have to prove your grounds for divorce which will take 2-3 years or more and in the meantime, you must have been paying alimony or interim maintenance to her. If you will have not been proving your grounds for divorce, your Petition may be dismissed. So, before going to file a Divorce Petition, you must work on the grounds of Divorce with the help of a local lawyer.

Raj Kumar Mishra
Advocate, Allahabad
64 Answers

4.0 on 5.0

1) she's working women than she is nit entitled for alimony. And can't claim on your parents house.

Ganesh Kadam
Advocate, Pune
9026 Answers
74 Consultations

4.9 on 5.0

1. Contested divorce suit takes around 3/4 years to be disposed of ordinarily.

2. An amount of 1/3rd to 1/4th of husband's monthly net earning deducted by the gross monthly earning of the wife is generally awarded as maintenance to the wife towards maintenance.

3. In the instant case, her gross monthly earning is more than or equal to his net monthly earning for which she won't be entitled to any maintenance amount from her husband.

4. Wife will have no right on the property of her husband and/or his ancestors during his life time. She can claim maintenance only as per Indian law.

Krishna Kishore Ganguly
Advocate, Kolkata
23548 Answers
640 Consultations

5.0 on 5.0

Hello,

The divorce case will take around 2 to 2.5 years.

Also, note that till the time you are not filing the divorce you may send her communications to resolve the issue, so that you have a stronger case when you approach the court of law.

Anilesh Tewari
Advocate, New Delhi
17403 Answers
280 Consultations

5.0 on 5.0

She cannot claim the paternal home as a matter of right.

Expenditure made by them on marriage along with some amount will have to be given as alimony.

Since she has the capacity to earn therefore less/ no maintenance will have to be given.

If she files case after filing of the Divorce, then challenge the same being an outburst/ afterthought to the divorce case.

Regards

Anilesh Tewari
Advocate, New Delhi
17403 Answers
280 Consultations

5.0 on 5.0

Seek intervention of elders from her family to get this matrimonial dispute resolved.

Contested divorce could take anything between 3-4 years.

The quantum of alimony will be decided taking into the salary, assets and social status of your brother. Qualifying the same is not possible at this juncture.

She can't claim your parents property.

Vibhanshu Srivastava
Advocate, New Delhi
8753 Answers
152 Consultations

5.0 on 5.0

1. If and when she files false cases then obtain anticipatory bail.

2. Divorce case takes around 2 years to complete.

3. She cannot claim any share in the house of her in-laws. Her only right is to claim maintenance from her husband.

Ashish Davessar
Advocate, Jaipur
27476 Answers
812 Consultations

5.0 on 5.0

You can go ahead with filing of divorce in family court. False cases apprehended from wife are 498A IPC, Complaint of Domestic Violence, Cruelty in family court etc. She may also file maintenance application under 125 crpc, domestic voilence provisions and in divorce petition.

Prashant Nayak
Advocate, Mumbai
16701 Answers
30 Consultations

4.6 on 5.0

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