• My wife doesn't want to live with me nor she wants to divorce me

I got married on July 2009, that time I was working in Pune. We were blessed with a baby boy on Sep 2012. In the year 2014 owing to some differences my wife came back to her parents at another city Raipur. Being lonely and frustrated in Pune, I decided to come back to my hometown (another city called Bemetara, about 70 kms from Raipur). I started working as a freelancer along with local business which by the God's grace succeeded.

In the year 2016, I decided to let bygones be bygones and talked to my wife and she agreed to live with me but not on my ancestral home instead on a rented place. Her intention obviously was not to live with my parents but I thought its OK. 

While living together she asked me to extend the family but I didn't wanted to add another member so I refused. She got pregnant probably on Oct 2017 which she didn't inform me until second trimester. But I thought its OK if we are getting another family member.

On 14 Feb 2018, she accused me of bigamy and has moved to her parents home again with my son who now is five and half years old. I called her and she said that she can't live at my hometown, she will stay with her parents until the new baby is an year old and after that she will think whether she want to continue living with her parents or to Pune. And if I want to stay with her and my children then I should also move to her parents. I went to her parents home, there her father abused me and they called the police and started accusing me of 'domestic violence' and 'multiple abortion without her consent' to the police. Later on they filed a police complaint against me for domestic violence.

I filed a PIL under Section 9 of The Hindu Marriage Act, her stand is that she doesn't want to live in my hometown and also doesn't want to give me divorce or any child.

I obviously can't move to my in laws house for both personal and professional reasons.

What options do I have now ?
Asked 4 years ago in Family Law
Religion: Hindu

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19 Answers

Ask the family court to refer matter to mediation if she refuses in mediation to accompany you to matrimonial home then you can file for divorce on ground of cruelty.

With respect to police case filed if police has registered FIR better take anticipatory bail if offence made in chargesheet are non bailable in nature.

Lastly if you want to visit your child file an application for visitation rights.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

File for divorce on grounds of mental cruelty

2) wife refusing to stay with husband amounts to mental cruelty

3) wife falsely accusing husband of remarrying during subsistence of earlier marriage amounts to mental cruelty

4) wife forcing husband to stay with her parents amounts to mental cruelty

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

Hello,

How can they file dv case while in her parental home?

However you should get back in your home and pursue the sec 9 for restitution.

You should also apply for AB .

Hope this helps.

Regards

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

1. You have no option except to make your wife agree to your proposal.

2. If she refuses to come to your place you can not force her nor the decree in RCR would ensure that.

3. So the RCR would be a futile attempt , more so, when she has made her intentions clear.

4. You can though propose her to stay with you in some neutral city which would be away from both of your parents.

5. Take your wife to holiday trips more often to bridge the gap.

5. if all these fail then ask her for mutual divorce.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Your marriage needs reconciliation. no one can stop any person leaving properly even if your wife do not want to give you divorce you may get the divorce. for the child you can claim custody as he is 5 and half years old.

Even if you file RCR that may not help you to get your wife back with you. Let her cool down file divorce and if you wish you may agree to take her back during mediation and conciliation process of divorce proceeding.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

File for divorce on grounds of mental cruelty

2) seek sole custody of your child

3) welfare of child is paramount consideration

4) court would award you visitation rights at least

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

You have filed divorce and child custody together you get the child custody earlier and contest for divorce she can give you otherwise you can get ex Parte decision from the family court

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

If you happen to take divorce on the ground of adultery at her side then child custody would be more tend towards you.

Otherwise generally the presumption of better future of child is with mother.

Or you prove that she can’t give her that descent life which you can give to the child.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

File an application under Section 21B of Hindu Marriage Act seeking the court to dispose off the case at earliest when you file for divorce.

Secondly since child is of 6 years you need to prove beyond doubt of court that your wife Is not eligible to take care of child then only you can get custody of child or else you will just get visitation rights to see child.

Any case filed Wil take year or two depending on the jurisdiction of your court. There's no speedy procedure as such.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

File a suit for custody of the child though the same is not enough unless you prove tat your child is not at all safe with his mother.

The fastest method is always mutual divorce.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Now the ball is in your court.

Since she has repeated such episodes in the past also, this will become a continuous sordid affairs.

She may not be satisfied in the future even if you keep her in a separate home.

Her suspicions will never end.

You may decide about continuing this marriage any further or not.

You should withdraw your RCR case and file a divorce case so that she may withdraw her DV cae and will come back to stay with you to lead a happy married life.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

You can file a contested divorce cae on the grounds of cruelty.

You can also file a child custody case.

If the child is less than 5 years of age, then you may not get the custody till it attans 5 years of age.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

Firstly you will have to accept that any process chosen by you, be it Divorce, be it RCR or be it child custody, will be time-consuming. There is going to be no easy way out. So you will have to make up your mind as to what you want. Even if RCR is granted in your favour, you will not be able to force your wife to come and live with you. Thereafter, after a period of one year, you can file for Divorce, which is going take another n- number of years.

As far as child custody is concerned, no, your child custody case does not get easier with Divorce. To gain custody, you will have to showcase your wife as a bad mother/ characterless woman etc. For your younger child, however, being granted custody is almost impossible given the tender age.

So my opinion would be, if you want to continue with RCR, immediately move an Application for access or alternatively file separate proceedings under the Hindu Minority and Guardians Act.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

You can file divorce and proceed with the same. You can't force a person to stay with you without her will.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

First of all there ws no necessity to file RCR,

Sc-24 petition is for interim maintenance.

This can be challenged if she has sought maintenance under DV act also.

If you want to file divorce on the grounds of cruelty then you may have to withdraw the RCR case.

You cannot file any criminal case agaisnt her even if she is misusing the law.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

1) burden of proof is upin wife to prove allegations made by her

2) you have to pay wife maintenance if wife is not working or there is substantial differences in your income

3) court generally award one third of your net income after taxes as maintenance

4) you have to with draw RCR then file for divorce

5) contested divorce cases take 5 years to be disposed of

Ajay Sethi
Advocate, Mumbai
87897 Answers
6207 Consultations

5.0 on 5.0

If she has filed application for maintenance under section 24 you need to fIle objection. Section 24 relates to litigation expenses and interim maintenance court will award nominal maintenance. They can claim as much they won't court will order what is reasonable usually 1/3 of your salary but they need to prove your salary is so and so. Unless they prove court will just order nominal amount as maintenance.

Secondly you can file for divorce under mental cruelty. Filing repeated cases of domestic violence making false accusations amounts to cruelty you need to have proof of all complaint lodge by her to prove cruelty.

Lastly you cannot complain against her for lodging complaints but you can sue her for malicious prosecution once you get rid of domestic violence case.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

At the interim stage, the Court will not get into the allegations. They will just see whether she is earning, whether the same is sufficient for her maintenance, whether you are earning, what are your reasonable and statutory expenses and deductions, the number of dependants on you etc. You will have to bear your children's maintenance.

If you decide to file Divorce, you will have to withdraw your RCR. Can you substantiate your decision changing from wanting your wife back to wanting to divorce her?

I dont understand why you saying that your wife is misusing the law? She is exercising the legal options available to her.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

You need to contest the domestic voilence case if she continues with the same. The amount of maintenance is not fixed it depends on the income of husband and other related circumstances.you need to pay ailmony to your wife. You can oppose the same if she is working and well to do. You can file criminal case once you get free from the present cases.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

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