• Husband is infidel, did violence many times, now defaming when caught in adultery

Hello Ma'am/Sir,

I am a 30 year old woman with a 4 years 11 months marriage.My husband was infidel since beginning and I kept catching him having affairs with other women. He always denied but unfortunately I don't have any written proof for all that. Gradually, he became started hiding his phone, emails etc so that I can't catch his texts or mobile bill emails etc. I had recordings of girls telling me on phone about how he always hide about his marriage and established extra marital affair with them but somehow, in the recent past, I changed my phone and everything got deleted. In 2014 November, he physically assaulted me by brutally beating up of which I have pictures and a complaint filed in the Police Station. After that, he never actually beat me but does a lot of serious verbal abuse in every possible way which existed till date. 

I tried to sort out everything everytime by involving my father in law as he is the only one in my in laws family. But he always asked me to 'save my home' in every way possible and that he will make him understand. I also faced a major uterine surgery in 2015 during which I went to my Mom's home as there was nobody to take care. I don't have children yet. I don't have a mother in law but there are three sister in laws who are married. The youngest one has also abused me a lot and she is still framing things to prompt me to leave this marriage.

Recently, on 12th September, I caught him again with his WhatsApp chats. Now I have proofs (chats) stating that he was cheating on me since three years and that he was also physically involved with this girl and during all this time, he never tried to save our relationship and kept me underrated, abused me, defamed me, abused my family in front of me and never helped me monetarily. I still tried to get things solved and called my parents this time. HIs family and mine sat with him and asked him to apologise. He did so in front of them but after all these days, today is 10th October, he has called my father and defamed me badly. He has put wrong allegations on me which are baseless. HIs father is supporting him still. I left my job in March 2018 and doing freelancing writing and getting 25,000/month and taking care of my own expenses i.e. LIC premiums, EMIs, household expenses, electricity bills etc. he also lives in this home only but in the other room. This is a rented apartment where we stay. He has asked me day before yesterday to find a new home and leave this house. 
Now, I seek help regarding what to do, how as I want to be safe, financially and home wise. I also want my share in his paternal home which is on his father name and his. I want protection as I doubt he can do anything to harm me. I also want to end this marriage but can't afford legal procedure fees etc. I used to earn Rs. 48000/month till March but now I am at home doing freelancing as I told. I have plans to shift to Mumbai as I am a good writer.

Please guide in detail. I am clueless.
Asked 4 years ago in Family Law
Religion: Hindu

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10 Answers

1. you have no right to claim a share on his paternal property.

2. You may file a FIR against him and thereafter request the police for protection.

3. You may file a case of divorce on the ground of desertion, if you are not in a condition to afford lawyer then you may fight your case yourself also.

4. Also you can file a case of maintenance under section 125 and claim maintenance from the husband.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1) you have no share in husband paternal home

2) you can file DV case seek maintenance , protection order from husband

3) also seek compensation for mental torture undergone by you

4) you can file for divorce on grounds of mental cruelty and adultery

Ajay Sethi
Advocate, Mumbai
87917 Answers
6207 Consultations

5.0 on 5.0

wife can only claim right over the property of the husband and shared property of the husband.

it is better to file divorce on the grounds of adultery and also you can file 125crpc maintenance.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

File a divorce case on the ground of mental cruelty, including his extra marital affairs.

Move a complaint before the Women Cell of the Noida Police, detailing therein everything that you have mentioned in your query.

Since the propeties in question are self acquired, youy cannot stake a claim on it at this stage.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Dear Madam,

It is better to file a DV case against him ans ask alimony.You make use of following settled law of the land as pronounced by Hon’ble Supreme Court of India, various High Courts and circulars of the State govt

Domestic Violence: The term "domestic violence" includes elaborately all forms of actual abuse or threat of abuse of physical, sexual, verbal, emotional and economic nature that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved person. The definition is wide enough to cover child sexual abuse, harassment caused to a woman or her relatives by unlawful dowry demands, and marital rape.

The kinds of abuse covered under the Act are:

RIGHTS GRANTED TO WOMEN

Right to reside in a shared household:

The Act secures a woman's right to reside in the matrimonial or shared household even if she has no title or rights in the household. A part of the house can be allotted to her for her personal use. A court can pass a residence order to secure her right of residence in the household.

The Supreme Court has ruled in a recent judgment that a wife's claim for alternative accommodation lie only against her husband and not against her in-laws and that her right to 'shared household' would not extend to the self-acquired property of her in-laws.

Right to obtain assistance and protection:

A woman who is victimized by acts of domestic violence will have the right to obtain the services and assistance of Police Officers, Protection Officers, Service Providers, Shelter Homes and medical establishments as well as the right to simultaneously file her own complaint under Section 498 A of the Indian Penal Code for matrimonial cruelty.

Right to issuance of Orders:

She can get the following orders issued in her favour through the courts once the offence of domestic violence is prima facie established:

1. Protection Orders: The court can pass a protection order to prevent the accused from aiding or committing an act of domestic violence, entering the workplace, school or other places frequented by the aggrieved person, establishing any kind of communication with her, alienating any assets used by both parties, causing violence to her relatives or doing any other act specified in the Protection order.

2. Residence Orders: This order ensures that the aggrieved person is not dispossessed, her possessions not disturbed, the shared household is not alienated or disposed off, she is provided an alternative accommodation by the Respondent if she so requires, the Respondent is removed from the shared household and he and his relatives are barred from entering the area allotted to her. However, an order to remove oneself from the shared household cannot be passed against any woman.

3. Monetary Relief: The Respondent can be made accountable for all expenses incurred and losses suffered by the aggrieved person and her child due to the infliction of domestic violence. Such relief may include loss of earnings, medical expenses, loss or damage to property, and payments towards maintenance of the aggrieved person and her children.

4. Custody Orders: This order grants temporary custody of any child or children to the aggrieved person or any person making an application on her behalf. It may make arrangements for visit of such child or children by the Respondent or may disallow such visit if it is harmful to the interests of the child or children.

5. Compensation Orders: The Respondent may be directed to pay compensation and damages for injuries caused to the aggrieved person as a result of the acts of domestic violence by the Respondent. Such injuries may also include mental torture and emotional distressed caused to her.

6. Interim and Ex parte Orders: Such orders may be passed if it is deemed just and proper upon commission of an act of domestic violence or likelihood of such commission by the Respondent. Such orders are passed on the basis of an affidavit of the aggrieved person against the Respondent.

Right to obtain relief granted by other suits and legal proceedings:

The aggrieved person will be entitled to obtain relief granted by other suits and legal proceedings initiated before a civil court, family court or a criminal court.

LIABILITIES AND RESTRICTIONS IMPOSED UPON THE RESPONDENT

1. He can be subjected to certain restrictions as contained in the Protection and Residence order issued against him.

2. The Respondent can be made accountable for providing monetary relief to the aggrieved person and her children and pay compensation damages as directed in the Compensation order.

3. He has to follow the arrangements made by the court regarding the custody of the child or children of the aggrieved person as specified in the Custody order.

The Act does not permit any female relative of the husband or male partner to file a complaint against the wife or female partner.

AUTHORITIES RESPONSIBLE AND THEIR FUNCTIONS

The Act provides for appointment of Protection Officers and Service Providers by the state governments to assist the aggrieved person with respect to medical examination, legal aid, safe shelter and other assistance for accessing her rights.

Protection Officers: These are officers who are under the jurisdiction and control of the court and have specific duties in situations of domestic violence. They provide assistance to the court in preparing the petition filed in the magistrate's office, also called a Domestic Incident Report. It is their duty to provide necessary information to the aggrieved person on Service Providers and to ensure compliance with the orders for monetary relief.

Service Providers: These refer to organizations and institutions working for women's rights, which are recognized under the Companies Act or the Societies Registration Act. They must be registered with the state government to record the Domestic Incident Report and to help the aggrieved person in medical examination. It is their duty to approach and advise the aggrieved person of her rights under the law and assist her in initiating the required legal proceedings or taking appropriate protective measures to remedy the situation. The law protects them for all actions done in good faith and no legal proceedings can be initiated against them for the proper exercise of their powers under the Act.

Court of first class Judicial Magistrate or Metropolitan Magistrate: This shall be the competent court to deal with cases of domestic violence and within the local limits of this court, either of the parties must reside or carry on business or employment, or the cause of action must have arisen. The Magistrate is allowed to hold proceedings in camera if either party to the proceedings so desires.

General duties of Police Officers, Service Providers and Magistrate: Upon receiving a complaint or report of domestic violence or being present at the place of such an incident, they are under a duty to inform the aggrieved person of:

1. her right to apply for obtaining a relief or the various orders granted under the Act;

2. the availability of services of Service Providers and Protection Officers;

3. her right to obtain free legal services; and

4. her right to file a complaint under Section 498 A of the Indian Penal Code.

Counselors: The Magistrate may appoint any member of a Service Provider who possesses the prescribed qualifications and experience in counseling, for assisting the parties during the proceedings.

Welfare experts: The Magistrate can appoint them for assisting him in discharging his functions.

In charge of Shelter Homes: The person in charge of a shelter home shall provide shelter to the aggrieved person in the shelter home upon request made by the aggrieved person, a Protection Officer or a Service Provider on her behalf.

In charge of Medical Facilities: The person in charge of a medical facility shall provide medical aid to the aggrieved person upon request made by the aggrieved person, a Protection Officer or a Service Provider on her behalf.

Central and State Governments: Such governments are under a duty to ensure wide publicity of the provisions of this Act through all forms of public media at regular intervals, to provide awareness and training to all officers of the government, and to coordinate the services provided by all Ministries and various Departments.

PROCEDURE OF FILING COMPLAINT AND THE COURT'S DUTY

1. The aggrieved person or any other witness of the offence on her behalf can approach a Police Officer, Protection Officer, and Service Provider or can directly file a complaint with a Magistrate for obtaining orders or reliefs under the Act. The informant who in good faith provides information relating to the offence to the relevant authorities will not have any civil or criminal liability.

2. The court is required to take cognizance of the complaint by instituting a hearing within three days of the complaint being filed in the court.

3. The Magistrate shall give a notice of the date of hearing to the Protection Officer to be served on the Respondent and such other persons as directed by the Magistrate, within a maximum period of 2 days or such further reasonable time as allowed by the Magistrate.

4. The court is required to dispose of the case within 60 days of the first hearing.

5. The court, to establish the offence by the Respondent can use the sole testimony of the aggrieved person.

6. Upon finding the complaint genuine, the court can pass a Protection Order, which shall remain in force till the aggrieved person applies for discharge. If upon receipt of an application from the aggrieved person, the Magistrate is satisfied that the circumstances so require, he may alter, modify or revoke an order after recording the reasons in writing.

7. A complaint can also be filed under Section 498 A of the Indian Penal Code, which defines the offence of matrimonial cruelty and prescribes the punishment for the husband of a woman or his relative who subjects her to cruelty.

PENALTY/PUNISHMENT

1. For Respondent: The breach of Protection Order or interim protection order by the Respondent is a cognizable and non-bailable offence. It is punishable with imprisonment for a term, which may extend to one year or with fine, which may extend to twenty thousand rupees or with both. He can also be tried for offences under the Indian Penal Code and the Dowry Prohibition Act.

2. For Protection Officer: If he fails or does not discharge his duties as directed by the Magistrate without any sufficient cause, he will be liable for having committed an offence under the Act with similar punishment. However, he cannot be penalized without the prior sanction of the state government. Moreover, the law protects him for all actions taken by him in good faith.

PRAYER

HENCE THE APPLICANT HUMBLY PRAYS

A) to take cognizance for the offence punishable u/s 498A IPC and punish Respondent No.1 to 3 as per law and extend police protection to the deponent,

B) Pass orders u/s 19, based upon S.17, granting separate residence for herself and her three children at a monthly rent of Rs. 20,000/- and advance of Rs. 5,00,000/-.

C) Pass orders u/s 18, in totality against Respondent No.1 to 3,

D) Pass orders u/s 20(i) granting Rs.25,000/- per month as maintenance for applicant and maintenance at the rate of Rs. 5,000/- each per month to her three children.

E) Pass orders granting Rs. 5,00,000/- for setting up house hold requirements, in granted residence, to make it livable, as the applicant cannot return to the house of Respondent No.1 as he is residing in the house of respondent No. 3, which is legally prohibited,

F) Pass orders granting litigation expenses of Rs.1,00,000/- as the applicant made to wander from pillar to post for getting legal aid to attend the Hon’ble Court, whereas, the Respondent No.1 falsely filed Divorce Petition.

G) The applicant also filed interim application supported by affidavit u/s 23(1) and (2) of D.V.Act,

H) That any other order/s, this Hon’ble Court deems fit, to meet the ends of justice, be passed.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

Mam file a case of domestic violence and cruelty under Domestic violence Act and 498 a IPC and further 323 for physical beating citing persent and past incident of regular cruelty.

Under DV act file for maintenance and residence and protection from him also along the charges.

Further file a divorce on the ground of cruelty and adultery under hindu marriage act and claim maintenance there of also under Hindu marriage act.

Further share in property of father and his is not.possible as there is no law.prescribing so in India

DV case can be filed before the women cell that is mahila police station near your home and the divorce in the family court.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Your husband is habitable offender he realises the problem when been pointed out by the family and normally apologize and later again get involved in same.

As both of you are living in separate rooms that is again giving him the opportunity to get back to the previous behaviour.

Now this is high time for you to decide whether you want to be in this marriage or you want to move ahead out of this marriage and look something for you you have all the rights as wife to be maintained and your freelance income may not be considered as regular income to support you.

You need not to leave this matrimonial house but you have to complaint police for the domestic violence against your husband.

The domestic violence does not only include the physical assault but this includes mental and emotional torture as well.

You can file a petition in the family court apart from your complaint to women cell under section 3 and 4 of Domestic Violence Act for the maintenance for yourself and let him reply in the court as well as to the police for his behaviour and maintenance. You need not to file a divorce petition as you are living with him now but you feel that he is not going to change himself and you have been provided the maintenance by the court order then only you need to stay separate for at least six month to file a divorce petition. If you are looking for any advice in detail you may call me by taking the contact details from this site.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Hi,

You are suggested to file a case for protection of women from domestic violence and also divorce under cruelty and adultery ground. After sorting out issues, you may shift to anywhere.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Now, I seek help regarding what to do, how as I want to be safe, financially and home wise. I also want my share in his paternal home which is on his father name and his. I want protection as I doubt he can do anything to harm me. I also want to end this marriage but can't afford legal procedure fees etc. I used to earn Rs. 48000/month till March but now I am at home doing freelancing as I told. I have plans to shift to Mumbai as I am a good writer.

Please guide in detail. I am clueless.

The clue before you is to part with him either by judicial separation or by dissolving the marriage by a decree of divorce.

Before that you can file a DV case seeking the reliefs of protection, residence, maintenance, compensation for his acts of brutality and betrayal.

You cannot get any share in his property or his parental properties at least not during his lifetime.

If you canot afford for litigation expenses, you may approach the district legal services authority available in all the courts seeking free legal aid to conduct your case.

T Kalaiselvan
Advocate, Vellore
78072 Answers
1543 Consultations

5.0 on 5.0

You can file a petition for claiming maintenance under section 125 of the code of criminal procedure where you would be granted monthly maintenance amount by the court based on your husbands primary income, lifestyle fixed assets, income from other sources etc.

You can also file a complaint under the provisions of Section 12 of protection of women from domestic violence act 2005.

If there has been any dowry harassment on his part a criminal complaint under Section 498 a of the Indian Penal Code can also be given.

Divorce petition on Grounds of cruelty can also be filed if you do not want to continue with this marriage.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

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