I have come across many cases like this. I can understand your problem and your family's problem. It is unfortunate that you could not lead a happy married life. There are some incidents that happen in your life and those incidents are so strong that they change your DNA. They say marriages are made in heaven. But so is thunder and lightning. 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. Marriages are hard. Divorces…even harder. Nobody enters marriage thinking about a divorce in the end. If some are unable to cope with the harsh realities of marriage, the only viable option in front of them is to approach the Court and seek legal separation.
You and your family have a right to live life with peace and with happiness. Your wife has no right to threaten you.
I would firstly suggest you to immediately file a police complaint as you have all the evidences with you to prove your say.
So far as divorce is concerned you have two options-
1. You can file a mutual divorce case. Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court. Mutual consent means that both the parties agree for peaceful separation. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses. Please keep in mind that mutual divorce proceedings takes only 6 months to settle and it is an easy process.
2. If your wife doesn't agree for mutual divorce then you can file a contested divorce petition in the ground of mental cruelty by wife. Contested divorce proceedings can take up to 5 years to settle.
So far as child custody is concerned if divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians. Please understand that over the years; there is a shift from custody and access being the 'right of a parent' to being the 'right of a child'. The non-negotiable principle on which custody is decided is the 'best interest and welfare of the child'. Who will best serve the child's emotional, educational, social and medical needs are the only criteria.
The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access.
If you have an apprehension that your wife will file a false dowry charges then you can seek anticipatory bail. Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek ‘Anticipatory Bail’. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offence.
Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges made against him/her, most commonly due to professional or personal enmity, as it ensures the release of the falsely accused person even before he/she is arrested.
To get anticipatory bail the person seeking it, must approach the Court of Sessions or the High Court and citing section 438 of the Criminal Procedure Code as well as giving proper reason, apply for it. If the court, based on a number of conditions and the nature of the case, sees merit in the petition the bail is granted. Hence if and when the person is arrested, he/she will be immediately released on the basis of the anticipatory bail.
There are many ways in which you can deny alimony to wife in this regard so better would be to have a detailed discussion.
At last I just want to say that human progress is neither automatic nor inevitable... Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.
SHRI GOPAL VERMA
ADVOCATE ON RECORD
SUPREME COURT OF INDIA