• Dilemma whether to go for divorce or stay separated

My sister was being mentally abused by husband and in laws for last 8-9 years, her husband doesn't earn a penny since last 7 years and has become dysfunctional for any job/work. Sex without consent & unnatural sex were day to day things. Tobacco and alcoholism were also major issue. 
Most of the Family Expenses were being borne by her father/brother. Her in laws used ask money from her father directly or indirectly.
She is having 2 kids (8 yrs girl & 4 yrs boy) and has staying at father's home since last two years. 
She is having temporary job in a school and he is still unemployed & still mentally unstable. Neither his family arranges any consular / psychotherapist for him nor he himself tries to get to normalcy.

Please suggest what will be best way forward, to get divorce or stay separated.
Asked 4 years ago in Family Law
Religion: Hindu

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13 Answers

nest option is to file for divorce on grounds of mental cruelty 

 

2) husband refusing to maintain wife and children amounts to mental cruelty 

 

3) husband forcing wife to have unnatural sex amounts to mental cruelty 

 

4) seek maintenance and sole custody of children 

Ajay Sethi
Advocate, Mumbai
94731 Answers
7537 Consultations

5.0 on 5.0

First without fail, file FIR for domestic violence, dowry demand and sodomy. File application in court for maintenance for her and kids. And simultaneously file divorce petition on the ground of physical, mental and financial cruelty.

Yogendra Singh Rajawat
Advocate, Jaipur
22636 Answers
31 Consultations

4.4 on 5.0

See in this case he is not earning anything and is abusive for same it is better to seek divorce and stay separately in course of life if she find any good person so there is chance to remarry.

Further in case she can ask for mutual divorce of he is not ready and also not in position she can file a divorce on ground of cruelty.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

She can file for divorce under mental cruelty and for conduct of unnatural things.

She can also file cases for Domestic Violence and file application for maintenance of children and herself also

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

1.  IF life has become suffocating (which seems so), THEN file for Divorce and live a peaceful life (maybe by marrying again).  This seems more better, instead of endless struggle and having a adverse influence on the children's.

2.  IF Husband has any type of property in his own name (Land, Bank, House .... ) THEN file for alimony and funds for yourself & children.

3.  Staying "separated", shall never solve any problem, more so in the circumstances described by you.

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

  1. Let your sister convince her spouse to agree for Mutual Consent Divorce. Better to  opt Mutual consent divorce route and mutually the husband and wife can take decisions in the matter of child custody, finance, assets, maintenance or alimony, returning the jewellery given by  your parents and relatives etc.

2. In the joint petition to be filed by both husband and wife for dissolution of their marriage U/S. 13-B of the Hindu Marriage Act (Mutual consent divorce) , the custody of child, maintenance, finances, property matters, visitation rights will be mentioned.

3. The reason can be mentioned as due to irreconcilable differences they have been living separately since one year, and their marriage has broken down irretrievably and efforts to bring about reconciliation have also failed.

4. The time for concluding mutual consent divorce will be 6 months and this cooling period of 6 months can also be waived off in certain cases.

Shashidhar S. Sastry
Advocate, Bangalore
5117 Answers
314 Consultations

5.0 on 5.0

- According to the Section 13 of the Hindu Marriage Act, divorce or judicial separation can be obtained if the person has been “incurably of unsound mind,” or has been suffering continuously or intermittently from “mental disorder of such a kind and to such an extent that a woman cannot reasonably be expected to live with her husband.

- All the acts mentioned by you amounts to cruelty and mental illness of husband , hence in this scenirio , it is advised for divorce , so that she can pass her further life in peace.

- Since, other family members of her husband also are harassing her for want of money/dowry , hence your sister should fie a complaint before the CWC , and also file case under Domestice Voilence Act.

- She should also file a maintenance case for her maintenace and kids.

- Once, she will file above given cases, her husband will himself ask for divorce. 

Mohammed Shahzad
Advocate, Delhi
13230 Answers
198 Consultations

5.0 on 5.0

Dear Client,

Maintenance under Section 125 of The Code of Criminal Procedure:-The object of this provision is to provide a summary remedy to the dependent wife, children, and parents from destitution and to serve a social purpose. The right under these provisions cannot be defeated by anything in the personal law of the parties. Who is Entitled to Maintenance.

  1. Wife if she is unable to maintain herself.
  2. Legitimatee or illegitimate minor child, whether married or not, who is unable to maintain himself or herself.
  3. For mother who is unable to maintain himself or herself.

Hence, your sister may file a case under 125 of CRPC for getting maintenance for herself and her children.

 

Jaswant Singh
Advocate, Gurugram
929 Answers
2 Consultations

4.8 on 5.0

she can file divorce under Section 13(1)(ia) and Section 13(1)(iii) that is ground for cruelty and divorce on ground of unsound mind. 

Further you can file application for maintenance under section 125 of Cr.P.C. and section 24 of the Hindu Marriage act.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

She can file petition for judicial separation in family court after that she can decide after a year to go for divorce. 

Prashant Nayak
Advocate, Mumbai
31951 Answers
179 Consultations

4.1 on 5.0

The best solution for this situation is to go for divorce on ground of dissertion and mental & physical cruelty.

Also file suit for maintenance against her husband for herself and children.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

In the given situation it may not be possible for her to either make him alright or to continue the marriage with him anymore.

Hence she may better think of filing a divorce case on the grounds of cruelty and desertion to get relieved forever from this torturous life.

If her parents in law are threatening or constantly demanding money from her then she can lodge a criminal complaint against them for dowry demand and harassment thereon.

Consult a local advocate and proceed on the advise received.

T Kalaiselvan
Advocate, Vellore
84932 Answers
2197 Consultations

5.0 on 5.0

Dear Madam,

There are several enactments in favor of married women.  You must show heat of the litigation to your husband otherwise you cannot sustain in such unbearable atmosphere.  You can file Domestic Violence case.

file Domestic Violence case seeking following reliefs:

 

PRAYER

                HENCE THE APPLICANT HUMBLY PRAYS

  1. to take cognizance for the offence punishable u/s 498A IPC and punish Respondent1 to 3 as per law and extend police protection to the deponent,
  2. 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/-.
  3. Pass orders u/s 18, in totality against Respondent1 to 3,
  4. 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.
  5. 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 Respondent1 as he is residing in the house of respondent No. 3, which is legally prohibited,
  6. 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 Respondent1 falsely filed Divorce Petition.
  7. The applicant also filed interim application supported by affidavit u/s 23(1) and (2) of D.V.Act,
  8. 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

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