• Living separate for 4 years

I am living seperate from my husband with my two children of 10 years of age.I was married in 2004 and since then my husband used to harrasse and threaten me from time to time.finally in 2014 he asked me to go home.now it has been 4 years I am living in my paternal home.my husband does not talk to me.he also does not give any money for me and children.i am managing all expenses from my brother's income.my parents are old and cannot fight tough legal battle.
Kindly advise what remedy I have.
Asked 2 years ago in Family Law from Varanasi, Uttar Pradesh
Religion: Muslim

1) file for divorce on grounds of mental cruelty and desertion

2) husband refusing to stay with wife for continuous period of 2 years amounts to desertion

3) seek maintenance for your self and 2 children

4) contact a local lawyer

Ajay Sethi
Advocate, Mumbai
74626 Answers
4464 Consultations

5.0 on 5.0

You can file a maintenance case against your husband for yourself and your children under section 125 cr.p.c.

Since he has driven you out of the matrimonial home, you may even file a DV case seeking the reliefs of protection, residential rights and maintenance besides compensation.

Since there is no dissolution of marriage so far, you may file a petition seeking restitution of conjugal rights also.

If you do not have any financial support, you may approach the district legal aid services authority for free legal aid through panel advocate for taking up your cases on your behalf which is free of cost.

T Kalaiselvan
Advocate, Vellore
64580 Answers
836 Consultations

5.0 on 5.0

1) You can file case under Special Marriage Act for divorce and alimony and section 125 CrPC for maintenance. You can your own file the case in the family court against your husband.

Ganesh Kadam
Advocate, Pune
9724 Answers
80 Consultations

4.9 on 5.0

Dear Concern,

Please file case under section 498A of the Indian Penal Code and after that file for maintenance.

You will get required reliefs.

Ravi Kumar Singh
Advocate, Patna
52 Answers
2 Consultations

4.0 on 5.0

Immediately file maintenance under 125 crpc to obtain maintenance

Aveek Bose
Advocate, Kolkata
1118 Answers
7 Consultations

4.7 on 5.0

1. You did mistake by not claiming maintenance from your husband for such a long time though you husband was and is still liable for your maintenance.

2. however you can claim such maintenance for yourself and the children even at this point if time by filing a case under PWDV Act .

3, The amount of maintenance would be around 1/3 to 1/4th of income of your husband.

4. if you can can not afford an advocate you can take free legal aid supplied by the government in every court.

Devajyoti Barman
Advocate, Kolkata
19621 Answers
278 Consultations

5.0 on 5.0

hello maam

u need not to worry. you should approach woman commission, and court.

in court u ask for legal aid counsel for free. and file case under 125 crpc for maintenance. u will get maintenance in 2-3 months

Rajesh Kumar Parmar
Advocate, Shimla
34 Answers
1 Consultation

4.0 on 5.0

File an divorce on ground of desertion as husband living seperatly for more than 2 years is desertion and cruelty and ground of divorce under Dissolution of Muslim Marriage Act,1939 also other grounds available are As per the rules, here are the ways in which a Muslim woman in India can divorce under Dissolution of Muslim Marriage Act, 1939 –

When a husband goes missing for a period of 4 months, that is to say, the whereabouts of the husband have not been known for a period of four years. If a woman files for a divorce under this provision on 1.01.2017 and her husband appears within 6 months of pronouncement of the decree, i.e within 30.06.2017 by himself or through his agent and satisfies the court that he is willing to perform his conjugal duties, the court will set aside the divorce.

A divorce can be granted when the husband has neglected or has failed to provide for her maintenance for a period of two years.

When the husband has been sentenced to imprisonment for a period of seven years or upwards. No divorce is to be granted until and unless the sentence is proved by the proper court.

When the husband was impotent at the time of the marriage and continues to be so provided the court will call the husband in this case to justify his stand.

When the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease. (a disease that is contracted and transmitted by sexual contact, or that are transmitted via semen, vaginal secretions, or blood during intercourse)

When woman having been given in marriage by her father or another guardian before she attained the age of fifteen years, recalled the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated (when sexual relationship have not yet been established).

Cruelty toward wife is also a ground for divorce. Cruelty is when the husband does any one of the following-

Habitually assaults her or makes her life miserable by cruelty even if such conduct does not amount to physical ill-treatment.

Associates with women of evil repute or leads an infamous life.

Attempts to force her to lead an immoral life.

Disposes of her property or prevents her exercising her legal rights over it.

Obstructs her in the observance of her religious profession or practice.

If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.

Also you can get maintaince for yourself and children under Crpc 125 and for you special provision under protection of muslim women from divorce act.

Shubham Jhajharia
Advocate, Ahmedabad
24365 Answers
96 Consultations

5.0 on 5.0

Please file for maintenance under section 125 Crpc in jurisdiction court seeking maintenance for yourself and your children in the place you are staying.

Secondly if you do not want live with your husband file for divorce under section 2 (iv) and 2(viii) of dissolution of Muslim marriage act.

Swarnarka Chowdhury
Advocate, Mysore
1864 Answers
5 Consultations

5.0 on 5.0

If want to get justice then please show a little bit toughness in you.

File a civil case for divorce if want to along with the case of maintenance under section 125 of Crpc for you as well as for your children.

Sanjay Baniwal
Advocate, South Delhi
5209 Answers
12 Consultations

5.0 on 5.0

Maintenance cannot be claimed for the period preceding the date of filing the case before court.

If you want to have some relief then you have no option than to fight the legal battle as per law.

You can approach the DLSA within your jurisdictions for free legal assistance for filing all such cases.

T Kalaiselvan
Advocate, Vellore
64580 Answers
836 Consultations

5.0 on 5.0

Maintaince is available from date of filing for maintenance application also you can file a police complaint under 498A and domestic violence against him. Also legal battel takes time but yes you have to fight for your rights anyway.

Shubham Jhajharia
Advocate, Ahmedabad
24365 Answers
96 Consultations

5.0 on 5.0

You can file maintenance application under section 125 of IPC. You can also file domestic voilence case or you can also claim maintenance in divorce petition.

Prashant Nayak
Advocate, Mumbai
18708 Answers
34 Consultations

4.6 on 5.0

First as suggested file case merely writing on paper will not exonerated him from legal liability.

You have option to book consultation, I will guide you how to file and get relief.

Ravi Kumar Singh
Advocate, Patna
52 Answers
2 Consultations

4.0 on 5.0

1) you should reply to legal notice deny all allegations made in the notice

2) you can claim maintenance only form date of filing of application

3) you would not get maintenance for period prior to filing of application

Ajay Sethi
Advocate, Mumbai
74626 Answers
4464 Consultations

5.0 on 5.0

yes maam u can claim maintainance from back date. but u will get immediate relief after filing case.

Rajesh Kumar Parmar
Advocate, Shimla
34 Answers
1 Consultation

4.0 on 5.0

Maintenance will be given from date of filing petition under Section 125 crpc. And court procedure under family courts are not complicated you can file a case immediately through a local advocate from where you.are staying. You need not sign any paper and reply back to legal notice denying all allegations and make counter allegations on him.

Swarnarka Chowdhury
Advocate, Mysore
1864 Answers
5 Consultations

5.0 on 5.0

Dear Querist

immediately file maintenance case against him before the family court of your area and if your parents are unable to bear the expenses for fighting the case and you are unable to maintain herself then you may approach the District Legal Service Authority for free legal service.

1/3 of his income can be granted as maintenance to you and your children but can not claim the maintenance from back date.

you may also file the domestic violence case against him before the magistrate court and claim protection, right to residence, monetary relief, child custody and compensation under section 18,19,20,21 & 22 of the protection of Women From Domestic Violence Act-2005.

in this complaint, you may claim all the expenses which were born by your parents during the period of separation.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5590 Answers
264 Consultations

4.9 on 5.0

Hello,

Immediately file a case of maintenance under section 125 of the crpc. You may claim the same for yourself and for your children.

Anilesh Tewari
Advocate, New Delhi
17615 Answers
288 Consultations

5.0 on 5.0

From back date the same can not be claimed, but it will be given to you from the date of filing the petition.

Regards

Anilesh Tewari
Advocate, New Delhi
17615 Answers
288 Consultations

5.0 on 5.0

Just forget everything file apolice complaint in the Mahila Thana of your residence against your husband and family and a petition in the family court for the maintenance of you and your children under section 125 of CRPC the Mahila Thana will take care of his harassment and domestic problems including any violence physical or emotional and the family court will order the maintenance for yourself and children this will not take much more time even the police can tell him to provide you sufficient money for maintenance before the family court orders actual amount.

In case of delay in the family court youcan file a mandamus writ in the High Court for the maintenance.

Vimlesh Prasad Mishra
Advocate, Lucknow
6380 Answers
20 Consultations

4.9 on 5.0

1) Let him tell anything or make any story you don't worry, you stick to your points for monthly maintenance or one time lumpsum amount for divorce.

Ganesh Kadam
Advocate, Pune
9724 Answers
80 Consultations

4.9 on 5.0

File a petition for restitution of conjugal rights since you have been abandoned and deserted by your husband.

Seek maintenance by approaching the court, both for self and for your children.

Vibhanshu Srivastava
Advocate, New Delhi
8957 Answers
154 Consultations

5.0 on 5.0

Can mantenance be taken from back date?

Ans. Sometimes. Final discretion is that of the Court.

Also how difficult it is to fight the battle alone with my old parents?

Ans. This is not difficult. The laws of your country are sufficient to defend your cause. See an able lawyer for help.

Vibhanshu Srivastava
Advocate, New Delhi
8957 Answers
154 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer