• Domestic violence and divorce

I got married in 2008 and it was my husband second marriage . Was subjected to cruelty including dowry , mental torture , verbal abuse from husband n inlaws . Caught husband three times in extra marital affair ij 2010,2013 n now in 2019 . I had twins via ivf in 2017. I filed domestic violence in April 2019 n got notice two days back . My inlaws n husband want to surrender so that I settle n withdraw the case . They r willing to do some paperwork to transfer house n shop to my kids name after thier death but the papers r Morgaged in bank . 
I want to know
1. How the settlement papers will be made n given in court as I want everything legally . Will my husband need to go for hearing for settlement or me n my lawyer can handle this 
2. I want to live separately from husband n inlaws with no matrimonial obligations but on half portion on one floor so that they can meet my kids daily n I will also feel safe for kids . 
3. Can I file for divorce few months or year after I discover his extra marital affair . Will it be condoned for fact I was living in the same house or filed late . It will be by contest as he will not leave me 
4. I want to live as an individual not as wife or daughter in law in that portion so that I can have peace in life . 
What else I can do
Asked 2 years ago in Family Law
Religion: Hindu

2 answers received in 10 minutes.

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24 Answers

1. Both parties have to consent to the terms of settlement.

3. Condoned act.

Rajaganapathy Ganesan
Advocate, Chennai
2001 Answers
8 Consultations

4.9 on 5.0

1. File a case for judicial separation on grounds of cruelty and adultery by husband wherein Memorandum of settlement can be executed between the parties then all the terms and conditions of separation would be mentioned. You would have to appear in court to get your statement recorded that the settlement has been arrived at.

2. The property cannot be transferred in your  or in your child's name as the same has been hypothecated with the bank. Also, the bank's permission would be required before creating any third party interest in the mortgaged property, which they wouldn't give.

3. Yes

4. File for judicial separation and divorce. 

 

Siddharth Jain
Advocate, New Delhi
5759 Answers
83 Consultations

5.0 on 5.0

Hi,

Your situation is quite complex but you are suggested to be strong and face the things boldly. For transfer of property get the deed done in favour of kids with the conditions that loan would be repaid by in laws or husband before the children attain majority and till that period property will be under your care with no interference by them. With these circumstances, you may withdraw the case but have also the clause that they will not interfere in your life while staying in that property. You may do all these with mutual consent of all I.e.yourself, in-laws and husband. As far as divorce is concerned, you may file now also under mutual consent. If you wish, you may file later on also as congested divorce. But for peace of mind, you are suggested to go for mutual consent now only.

Ganesh Singh
Advocate, New Delhi
6629 Answers
16 Consultations

4.5 on 5.0

1)If your matrimonial home is 2  storey building than you can live on one floor separately with kids as per your wish.

 

2) For that you have to take order from court that you want  live separately under section 125 CrPC plus will eligible for maintenance.

 

3) Regarding other terms and conditions for property papers get order through court as per your wish and get all those property paper WILL.

Ganesh Kadam
Advocate, Pune
12193 Answers
151 Consultations

4.9 on 5.0

1) you can file consent terms in court for resolution of all disputes 

 

2) husband can execute gift deed to transfer house and shop in your name . It should be duly stamped and registered 

 

 

 

3) you can file later for divorce If you so desire 

Ajay Sethi
Advocate, Mumbai
84069 Answers
5480 Consultations

5.0 on 5.0

Hello,

 

you may file a petition for mutual consent divorce under section 13 b of hindu marriage act. All the terms and conditions can be laid down there. 

You and your husband will have to go to the court for the same.

 

regards

Anilesh Tewari
Advocate, New Delhi
17870 Answers
335 Consultations

5.0 on 5.0

1 Even if the original title deed are mortgaged with the bank then also your husband or in laws can settle the properties in the name of your children by making a registered deed of settlement.

2. Your husband being the biological father of the children must be allowed an opportunity to merit the children either at the neutral place or at your place.

3. Unless and until you start residing with your husband and cohabitation with him, any delay in fling the divorce suit on the ground of adultery of your husband would be considered to have been condoned by you.

4. Yes, you can so after the dissolution of the marriage. 

Devajyoti Barman
Advocate, Kolkata
22515 Answers
363 Consultations

5.0 on 5.0

1. A registered settlement deed with life interest on the settler can be executed in favor of the minor children by making you as  the guardian of the minor children.

2. If you do not want to file divorce case then you can file a judicial separation case and based on that orders, you can live separately away from him.

3. If you are able to prove his adulterous life, you can file the divorce case on the grounds of adultery even now.

4. You have to get your marriage dissolved to live like that.

 

 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

1. See still at complaint stage you both can enter into a memorandum and can settle the issue though it is better to ask them to take NOC from bank and make gift deed in favour of your children now only.

2. That can be recorded in a memorandum of understanding between and your husband and they can agree same.

3. You can file a divorce on ground of adultery now also after few months, no it won't be condoned.

4. You can take a mutual divorce and can leave separately.

Shubham Jhajharia
Advocate, Ahmedabad
25518 Answers
147 Consultations

5.0 on 5.0

If you want to file for divorce on grounds of extra marital affair ie adultery you should have no discovery of his affair walked out of the marriage 

 

2) welfare of children is paramount consideration 

 

3) custody of children is generally given to mother 

 

4) file police complaint against husband constant threats to commit suicide 

 

5) presence of husband and lawyer is necessary for filing consent terms in court 

Ajay Sethi
Advocate, Mumbai
84069 Answers
5480 Consultations

5.0 on 5.0

You can file it as soon as possible.  You need one year separation before filing divorce. 

Upto 5 years old child you get same easily after that merits will be seen along with choice of child

Prashant Nayak
Advocate, Mumbai
24239 Answers
51 Consultations

4.4 on 5.0

1. There's no particular time limit for this but the sooner the better. 

2. The court will decide after hearing both the sides when a child custody case is filed before it. 

3. You can give a police complaint about this. 

4. It was suggested that a registered settlement deed may be executed,  you may discuss with your lawyer in detail about it. 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

1. See you can file divorce after 4 months explaining why there was delay in filing divorce on adultery ground. See if living separately in same premises and no marital relationship then it can considered as separation.

2. See till age of 5 child reside generally with mother and further for welfare of kids custody of child can be taken by mother. Though father can be given visitation.

3.you can file a police complaint on same.

4. See it is better a deed is signed and registered now only based on that complaint can be taken back.

Shubham Jhajharia
Advocate, Ahmedabad
25518 Answers
147 Consultations

5.0 on 5.0

1. Ideally,  it should be filed immediately, but the delay in filing can also be condoned by the court on grounds that you had given a chance to your husband too many days but afte several opportunities also he refused to change and you were forced to file a divorce petition.

2. As you have proof of his extra marital affairs, custody of the kids would not be given to him. Also, custody of children below 5 years age normally goes to the mother as per the judgement of the supreme court.

3. Give NCR to police stating that your husband is threatening to commit suicide and request them to take action.

4. As I've already stated, property which is already mortgaged cannot be transferred.

Siddharth Jain
Advocate, New Delhi
5759 Answers
83 Consultations

5.0 on 5.0

There are multiple questions. I will answer each questions with its answer.

 

You have already started proceedings in domestic violence

You shall also have to move the court for divorce, (if you are certain that you want divorce). In the given situation it seems like the best option, though it is your choice. Its already been a long time for your marriage. The divorce will be under section 13-B of Hindu MArriage Act, for cruelty on account of domestic violence, extra marital affair. All the concerns like living separately not as a wife, protection from suicide threats, custody of the kids can be addressed there. 

1. How the settlement papers will be made n given in court as I want everything legally . Will my husband need to go for hearing for settlement or me n my lawyer can handle this?

Ans.In case you wish to withdraw, in my suggestion the best way to achieve the same would be by way of settlement agreement which could be signed by both the parties and submitted by the Court. You can ask your lawyer that the settlement should be submitted in the court and only on an undertaking of the other parties (your husband and other people who are party to the agreement) to give an undertaking to that effect. the same to be part of your settlement agreement.

 

2. I want to live separately from husband n inlaws with no matrimonial obligations but on half portion on one floor so that they can meet my kids daily n I will also feel safe for kids .

Ans. My query is will the premises of the house where you shall be intending to stay will be the same only on different floors. Once the divorce and settlement becomes final, there will be no matrimonial obligations. You should only withdraw on condition of divorce. In case you do not take a divorce, there would be no binding settlement.

3. Can I file for divorce few months or year after I discover his extra marital affair . Will it be condoned for fact I was living in the same house or filed late . It will be by contest as he will not leave me?

Ans. NO court will expect you to take action immediately considering taht you have kids. But dont take too long. It will be by contest. You will have to do everything wisely.

4. I want to live as an individual not as wife or daughter in law in that portion so that I can have peace in life . What else I can do?

Ans. You can take separate dwelling place close by. In case you want peace you can always have individual apartment or the house.

 

 5.What is the time frame within which u have to file divorce after discovering extra marital affair before it is condoned by court . Do we need to live separately in diff houses or staying in diff rooms on same floor for sake of kids n I have no place to go is considered living separately . I m already 4 months late . 

Ans. Though there is not a specific timeline, you shall have to act sooner other wise question of after thought comes in picture. Since you have already started the proceedings. Try to make this also part of the pleadings and annex if you have any proofs.

6.My kids r 11/2 yr old twins . Till what age custody is given to mother . Can he be given custody of any kid in any circumstances .

Ans. Till the age of 5 absolute custody is with the mother. But considering your husband's affairs and violence, it can also be made a part of settlement agreement that you shall retain the custody of the children. However, the father may be granted visitation rights. 

 

7. How can I protect myself n my family from his suicide threats?

Ans. You will have to inform the court about everything. It will all come under mental and emotional cruelty. This and also the violence and affair. All this will form part of your divorce proceedings. What you have already started is domestic violence. You will have to initiate divorce proceedings separately. 

 

8. How do we settle domestic violence court . He wants to settle it by transferring property n agreeing to terms but I want everything to be through court papers . Will he need to go to court for this or me n my lawyer can handle

You would need to go to court for entering a settlement. the lawyer can draw the settlement but later on has to be submitted before the court.

Richa Bharadwaja
Advocate, Delhi
25 Answers

4.8 on 5.0

1. there is no time frame and technicalities in such cases are usually condoned. Just that the gap should not be such that it weakens your case.

2. Welfare of the child is of paramount importance while deciding the custody of the child. 

3. file a NC in the police station 

4. AS advised go for MCD and settle all the conditions there. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
17870 Answers
335 Consultations

5.0 on 5.0

You will have to file an application for withdrawal of case through an advocate.. 

Execute gift deed and also execute MOU and if you both need divorce file for mutual consent divorce

 

Mohammed Mujeeb
Advocate, Hyderabad
19011 Answers
28 Consultations

4.5 on 5.0

Dear client

 A mortgage deed cannot be transfer to anyone before clearing the loan. and the type of settlement you are looking for can only be happen through mutual consent divorce. that living in same house but in different room will not be possible after divorce. you can live in different flat in the same building.

  1. The time frame for filing the divorce petition is not fixed as such by law. but whenever you should file the divorce case it should me mentioned in the petition with dates and time. after divorce you cannot live together as per law because if any of the spouse want to remarry then this can cause problem for that spouse but it depends on your mutual understanding.
  2. The custody of kids after age of 9 years can be given to the person with whom the child want to stay. as court will consider their decision before giving custody to any one.
  3. for that you should live separately from him and file a NC with police.
  4. yes you can settle the DV case by this manner but the evidences should be recorded in the court so that if they deny at later stage you can proceed against them legally.

Mohit Kapoor
Advocate, Rohtak
10688 Answers
7 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear that you have been subjected to cruelty both mentally and physically.
  2. You have rightly done by filing the DV case and now you will be allowed to remain in the same house with protection.
  3. But, I would also advice you to move an application in the same court seeking maintenance for your self and your child.
  4. And there is no bar that you can’t file a divorce petition when there is adjacent DV proceedings going on or even if you are residing in the same house.
  5. Generally, custody remains with the mother  unless husband can prove that you been cruel to children and not been able to better care off.
  6. And try to settle only before the court or mediation centre through court, but not otherwise.
  7. Rest, you can call me at any time for further legal assistance.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

1) you would get first hearing in 3 months or so . there is average gap of more than a month or so between hearings 

 

2) summons are sent through post 

 

3) alimony would be based on husband salary  and his assets 

 

4) father in law is not obliged to pay expenses in case husband income is less 

 

5) better option is to go in for settlement agreement without divorce 

Ajay Sethi
Advocate, Mumbai
84069 Answers
5480 Consultations

5.0 on 5.0

1. See the first hearing will.come with week the court will send notice through court. The average time between two hearings is 3-4 weeks.

2. Husband's salary and his account statements.

3. See ask them to free floor from mortgage and pay amount as one time settlement if you are settling so that there is no issue in future and for kid there can be monthly maintenance till he attain certain age.

Shubham Jhajharia
Advocate, Ahmedabad
25518 Answers
147 Consultations

5.0 on 5.0

1. If you file divorce case,  the first notice will be sent by post.

The gap between two hearings may between one to two months. 

You have to appear before court on each and every hearing date 

 

2. It may be based on the his proven income. 

3. The alimony aspect may be decided by a  MOU and the same may be reduced to writing. 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

Contested divorce takes time can't be predictable. May take 2 to 3 years approx. Your lawyer will do the needful in domestic violence case. Your husband salary. Yes settlement needs to be agreed by both parties

Prashant Nayak
Advocate, Mumbai
24239 Answers
51 Consultations

4.4 on 5.0

1. Notice will be issued on the first date and if he appears on the second date then it will take 1-2 months atleast, depends on the burden of cases on the court. 

2. Husband salary

3. On the basis of the settlement agreement take a mutual consent divorce and as and when the settlement will be decreed the same can not be breached. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
17870 Answers
335 Consultations

5.0 on 5.0

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