• Need legal opinion

I am a Muslim and married a girl in the same community in 2014. It is an arranged marriage by parents. She is working as a software professional but resigned very recently. She is pregnant now and left me.
1. We both are staying in bangalore, far from my parents, but very nearer to her parents
2. I have a brother and he stays with his wife and son, very near by to my house
3. Everything was fine for 4 months, later she started asking me to stay away from my brother and family
4. Her parents started coming to my home after i leave to office and will leave before i return (I am not able to understand why they do this)
5. She started arguing for small small things, cries a lot, behaves like a mental patient and then creates a big drama
6. Next day either she goes home or her father and mother comes for taking her home
7. i went once to her home in our 4 month of marriage when she said she will not come to me because she want to abort and don't want baby
8. From that day till today, one or the other way she argues with me for small small things and will not eat food, threatens me saying baby will die inside if she doesn't eat food and she will also die and all drama goes on and her mother calls her and asks her to come home and she will go
9. Now she is in 7th month of pregnancy and her father came and took her home 4 days back. Now she wants me to resign to my job and come to her home and stay with them and should end my relationship with my parents. She is sending messages to come to her home leaving everything if I want my baby
10. I am not ready to go to her home and I dont know how long this goes, i need your valuable opinion for my questions below.

1. If she files a case against me using 498A or DVC act, what will be the consequences?
2. If i want a file a divorce now, how do i do it and does Indian Law allows me to do that as she is pregnant and will give birth to baby in a couple of months?
3. What should i do to get my baby from her?
4. How do i protect myself and my family from her before she files any cases using 498A or DVC or some other law?

You may think the issue is not big but i want to prepare myself with necessary information and suggestions from your valuable experience.
Asked 3 years ago in Family Law from Bangalore, Karnataka
Religion: Muslim
1) if your wife files 498A / Dv case contest it on merits 

2) with recent SC judgement in 498A cases police will first call you to local police station to record your statement . conduct investigations and submit report to magistrate 

3) you can see Anticipatory bail from sessions court 

4) you can divorce your wife under personal law . no DV case is maintainable after divorce . 

5) you wont get custody of baby . you will get visitation rights from court . 

6) it is better you visit a marriage counsellor to resolve your differences 

7) your wife may need psychiatrist treatment as sudden mood swings , behaving like mental patient indicates sh may be suffering from mental illness 

8) convince her to visit a psychiatrist . dont make mistake of resigning your job
Ajay Sethi
Advocate, Mumbai
45520 Answers
2676 Consultations

5.0 on 5.0

Please seek police intervention with immediate effect by lodging a complaint against your in laws regarding the harassment you face for false implication and criminal intimidation.
Tulika Prakash
Advocate, Gurgaon
113 Answers
77 Consultations

4.6 on 5.0

1. Nothing if you manage to get bail in the 498A case. In DV case fight on merit and focus on her previous employment to avoid maintenance for her.

2. Pregnancy is no bar to file suit for divorce. Suit for divorce only lies if your marriage is registered under Special Marriage Act. If the marriage is not registered under that Act then you have to give her triple Talaq as per Sharia law.
3. I regret that you will get the child bit you will be allowed to see the child in the custody suit.

4. There is no way by which one can get prior protection. If case is registered then you can apply for bail but you can stop her form filing the case. However you may keep the local police posted about the developments.
Devajyoti Barman
Advocate, Kolkata
12832 Answers
166 Consultations

5.0 on 5.0

First you take strong step and told her that you never resign and live with your parents. collect all evidence, told her to stay with you in the presence of family member or your friends or relatives, this would be an evidence if she files case under 498 A ipc. try to restitute your conjugal rights. 
If she demand maintenance under sec 125 cr.p.c. then she can't get because she has no reasonable cause to desert you. even after divorce she can't get maintenance on the same above said footings (Poonam vs mahindra singh , supreme court ).
after divorce she is the natural guardian of your child up to age of 5 years but till this age you have right to meet your child. after that you are the natural guardian. in exceptional condition you can get guardianship before 5 years of age.
you can give her divorce and after complition of iddat period you can get guardianship of your child after age of 5 years.
Shivendra Pratap Singh
Advocate, Lucknow
5066 Answers
78 Consultations

4.9 on 5.0

1. If she files a case of 498A or domestic violence then your prosecution will ensue. You should them immediately seek bail from the court to escape being arrested and lodged in jail.

2. Since you are a muslim you can pronounce triple talaq on her her. even though this has been denounced by the courts. Her pregnancy does not impair your right to divorce her.

3. To get your baby from her you are required to file a case for child custody against her.

4. As mentioned earlier, you can seek pre-arrest bail to preempt your arrest.
Ashish Davessar
Advocate, Jaipur
22977 Answers
634 Consultations

5.0 on 5.0

Dear Querist
My opinion on your queries are as under:

1. If she files a case against me using 498A or DVC act, what will be the consequences?
Opinion: If she filed any cases against you u/s 498A or DVC then there is no direct arresting, first of all the matter will be send to women cell and the official of the women cell issue a notice to you for your appearance where you have right to submit your reply against the complaint filed by her, the women cell official will try to settle the matter between you, if not possible and there is a case made out against you as per the complaint then after approval of DCP the refer the case for registration of FIR. after registering the FIR, you may file an Anticipatory bail before session court or high court and get the same on merit.

2. If i want a file a divorce now, how do i do it and does Indian Law allows me to do that as she is pregnant and will give birth to baby in a couple of months?
Opinion: As you are muslim, you have right to pronounce talaaq to her infront two witnesses or Qazi without any interfere of the court/without filing and case before court for divorce.

3. What should i do to get my baby from her?
Opinion: if she is not ready to live with you and also adamant to not to allow to visit your child then you have right to file child custody case before family court where the child is residing under Guardian & Wars Act.

4. How do i protect myself and my family from her before she files any cases using 498A or DVC or some other law?
Opinion: you may file a information cum complaint to higher authority as NCW/Commissioner/SSP of your area, or you may file a complaint before District Legal Service Authority for settlement.
Nadeem Qureshi
Advocate, New Delhi
4856 Answers
221 Consultations

4.9 on 5.0

1. Now a days, there will be no arrest against 498A complaints as per Supreme Court order. However, you shall have to avail AB from the court and contest the case on merit,

2.& 3.  Uptill now there has ben no major ground for seeking decree of divorce. It has severally been seen that during pregnancy, some women behave wildly. Just keep her in good mood and arrange for counselling for child birth. She might change drastically after child birth,

3. The aftereffect of complaint u/s498A complaint is not that painfull now a days. So, you need not be panicky. Just lodge a plice complaint about her threat of committing suicide if you do not resign. It may be of good use later on,

4. Collect audio recording of her such thtraets.
Krishna Kishore Ganguly
Advocate, Kolkata
18493 Answers
448 Consultations

5.0 on 5.0

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