• Alimony, impotency case

Background: I am from West Bengal. My wife's family is also from West Bengal. We both work in Bangalore as software engineers.We both are 29 years old. She earns 40 thousands , i earn 55 thousands currently. It was an arrange marriage, We got married in January 2019. After only two months she left our rented flat accusing me of impotency.It was she who was non cooperative on bed and frigid in nature.
just after few days her parents asked for money. we denied. Now they have filed a case under HMA u/s 25. 
My questions are very specific. I have read many articles about alimony (I am NOT asking about MAINTENANCE ) where its mentioned that it varies from case to case.I have also read cases where judgement said even if wife is earning handsome alimony can not be denied. That's why I have given the details here to get an specific answer. 
We have not taken any dowry, 2 months of staying together, 29 years of age, she earns 40k and i earn 55k per month, no children, she has no dependent. 

1. Will she still be given alimony by court (not talking about maintenance)?
2. sec 25 can be filed without divorce being filed? because she can not file divorce case now within one year of marriage.
3. I have consulted doctor along with her, doctor said no need of any test within 2 months of marriage. I didn't hide anything as I always have proper erection while masturbation and i never had sex before marriage. She didnt listen to doctor or give anytime to us. To what extend she can harm me with this impotence issue? how should i handle it? I have read about one Bombay high court judgement where it said that wife cant file case mentioning about "impotency" of husband and is she does that can be defamatory under act 500.
4. If we agree with section 25, still she can file 498a and DV and all right?
Asked 1 year ago in Family Law
Religion: Hindu

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14 Answers

) 1) there is not much difference in your income 

 

2) she would not get any alimony .

 

3) if wife files for divorce on grounds of impotency you can undergo potency tests to prove that you are not impotent 

 

4) wife making false allegations that husband is impotent amounts to maligning husband reputation and case of defamation can be filed against wife 

 

5) wife can file case of dowry harassment and domestic violence against you even if you agree with section 25 

Ajay Sethi
Advocate, Mumbai
79737 Answers
4810 Consultations

5.0 on 5.0

If you don't want to pay maintenance you file RCR.  Get the decree.  Let her deny compliance of the decree and that will be a valid ground for divorce without maintenance.

There are lots of judgements on maintenance totally contradicting to each other.

Now it has become matter of luck in maintenance order.  If you are lucky you may not be ordered to pay maintenance. If you unlucky you need to pay heavy maintenance.

It heavily depends on the mood of the judges.

If you go through the orders you can not come to any conclusion under what circumstances maintenance shall be paid. It is frustrating too. 

So to be on safe side file RCR. 


As to impotence issues, this requires medical test report.

Kallol Majumdar
Advocate, Kolkata
2787 Answers
4 Consultations

5.0 on 5.0

She can file whatever she wants. But that does not mean that you are guilty. It only means that you MAY be guilty. Investigation and an order after that can only hold you guilty. So don't panic. Also the coury mat grant her alimony and it depends upon the judge the arguments put forth etc. But still IMHO she will not get anything.

Regards 

Rahul Mishra
Advocate, Lucknow
11628 Answers
20 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows

1.     Will she still be given alimony by court (not talking about maintenance)?

Ans: No, as the marriage last for few months and your impotency is false allegation. Simply making such allegation the Bombay High Court registered a criminal case against wife

.2.     sec 25 can be filed without divorce being filed? because she can not file divorce case now within one year of marriage.

Ans: She can file but she has to establish many things.

3.     I have consulted doctor along with her, doctor said no need of any test within 2 months of marriage. I didn't hide anything as I always have proper erection while masturbation and i never had sex before marriage. She didnt listen to doctor or give anytime to us. To what extend she can harm me with this impotence issue? how should i handle it? I have read about one Bombay high court judgement where it said that wife cant file case mentioning about "impotency" of husband and is she does that can be defamatory under act 500.

Ans: Yes, you are perfectly correct. Within 2 months it can not be decided. She might be having sex before marriage.

4. If we agree with section 25, still she can file 498a and DV and all right?

Ans: It is is a counter blast and wish to take revenge it has no legs to stand. You can get stay on such FIR.

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Grounds for Divorce: Impotence

If you’re feeling trapped in a passionless marriage, you may be able to file for divorce based on your spouse’s impotence.

People enter into relationships for many reasons, including intimacy. Couples that decide to get married are usually committed to sharing a lifetime of emotional and physical affection. For some couples, sexual relations may become impossible due to one spouse’s impotence.

What Is Impotence?

“Impotence” is the inability to have sexual relations. The law makes a distinction between an inability to engage in sexual activity and a spouse’s refusal or intentional avoidance of intimate relations. For example, a spouse that simply withholds sex won’t be deemed impotent. Likewise, a spouse’s infertility or inability to produce a child isn’t considered impotence. However, a physical, psychological, or other medical condition that makes it impossible to have intercourse may constitute impotence and is grounds for divorce in many states.

, a judge won’t grant a divorce due to impotence unless you can prove that your spouse's inability to have sex is permanent and incurable. This can be especially difficult to prove with all the medical advances, surgeries, and prescription treatments available today.

A judge can require an allegedly impotent spouse to submit to medical and psychological testing. If tests prove your spouse is unable to have sex—or if your spouse refuses the tests—the judge may grant your divorce, but can’t require your spouse to undergo treatment.

Kishan Dutt Kalaskar
Advocate, Bangalore
5650 Answers
235 Consultations

4.8 on 5.0

It's totally depends upon judge to pass alimony or maintenance because section 25 of HMA talks about monthly maintenance or life time.

 

But you can go for annulment of marriage as it's less than a year. And in future you both will be not called as divorcee. 

 

Do immediately as this is month of August already 8 months passed. Try for Annulment.

Ganesh Kadam
Advocate, Pune
11751 Answers
114 Consultations

4.9 on 5.0

As per the Supreme Court of India a working woman cannot claim maintenance. But she can always go for divorce and ask for alimony but it is upon the discretion of the Court to decide whether or not to give any alimony. 

you can get a potency test done from any recognised good medical college, my advice, go for both, government as well as private. when she levels these allegations in any court of law, in any proceedings, you can counter her. 

 

Mohammed Mujeeb
Advocate, Hyderabad
18986 Answers
14 Consultations

4.5 on 5.0

1. Both alimony and maintenance is the same thing and if there is great disparity between your respective  income then she would nevertheless be entitled to maintenance.

2. Without suit for divorce no proceeding u/s 24/25 of HMA can be filed.

3.On the ground of impotency she can file divorce suit. Apart form this no damaging factor is there as such.

4. This has nothing to do with case u/s 498A IPC or case under PWDV Act. 

Devajyoti Barman
Advocate, Kolkata
21795 Answers
318 Consultations

5.0 on 5.0

Court will not allow maintenance as she is having sufficient source to maintain herself. 

Now regarding divorce you can file divorce on the ground of cruelty along with an application under section 14 H. M. Act because it is mental cruelty levelling false allegations of Impotency due to which exceptional hardship to live with her. 

Divorce can be filed within one year also read section 14 H. M. Act. 

If you need any judgments we can provide you


Now in your reply you should say that she is earning and file an application under section 340 crpc against her if she had written in her petition that she is not having any source of income. 

Move an application to direct her to produce her ITR that will prove she is earning and not liable for maintenance. 

Court will take action against her for submitting false affidavit in the court and will punish her


If you have her PAN then you can get her ITR

Tarun Budhiraja
Advocate, Rohtak
379 Answers

4.8 on 5.0

Yes court can order alimony for her but if you can prove that you are not impotent then court can dismiss her petition.

Yes she can file section 25 petition without divorce.

You should get your test done for impotency and produce them in court if they are in your favour. And yes you can file a case of defamation on her if test are in your favor. 

If she has not taken the ground of dowry or domestic violence in her petition of section 25 then her claim would likely to be dismissed if she file any case of 498A or DV act. 

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

1. She may pray for alimony but you can object on ground of her income. 

2. Yes. 

3. She has to prove that in court. You don't worry. You can later file defamation against her. 

4. Yes. 

Prashant Nayak
Advocate, Mumbai
22633 Answers
49 Consultations

4.4 on 5.0

Please note once she is capable of earning and when there are no dependents court will reject her petition secondly she has to wait for a year before she files for divorce and it will be difficult for her to prove impotency grounds. At no point of time you should accept to give her maintenance if you heed to their demands you may expose yourself to a larger liability

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Too many questions. And you seem to be confused. Added to this as the saying goes half knowledge is dangerous. If everyone could read judgements available online, then I don't think there would be any need for Legal practitioners.

 

As a suggestion it's better you take phone consultation and clarify all your doubts. Because whatever we say, you may get further doubts and to clarify that you will again ask questions. Instead it would be better to speak and clarify all your doubts at one.

Sandeep Prakash
Advocate, Bangalore
308 Answers
2 Consultations

5.0 on 5.0

1. Without divorce she cannot claim permanent alimony,

moreover she is employed and earning a handsome salary, hence she may not be eligible for any maintenance or alimony.

Since your marriage is hardly one year she cannot file a divorce cae, she may file an annulment petition seeking to annul the marriage but in that she would not be entitled for alimony.

2.  See the above answer.

3. She may file an annulment petition for this reason, but the burden lies on her to prove her allegations.

4.  The alimony petition is not maintainable, however this will not be a bar to lodge criminal complaint under section 498a IPC or DV case.

 

 

T Kalaiselvan
Advocate, Vellore
69776 Answers
953 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear that as she has already filed 25 then it would not be advisable for her to file any DV or 498A case against you.
  2. Yes, you are absolutely right in saying that she can get the alimony even if she has been earning good.
  3. But for that she will have to put you at fault before the family court only then she can get.
  4. If the case goes on for more than two years then you can also file a counter divorce case against her for desertion without any reason and then the outcome of her case would apply to you and if you succeed there then here also you will get suckers for sure and in this way she won’t be getting any alimony.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

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