Hi Attorney's, I'm from Chennai. My Sister, she is 26 now and she has two kids a girl(4 years old) and a boy(1.5 years old). Over the last few years she has been continuously subjected to domestic violence from her husband, Who continues to abuse her everyday citing her dependency on him often with very vulgar comments on her and kids. Last month on October 20th night, while she was sleeping around 11 PM in the night there was a argument on some of his interests as she was tired all day as they did vaccination for the younger kid 2 years old and also the kids were sleeping. He started beating her violently and then he left the home and went to his parents home and she slept alone that night with the kids Next day morning we came to know that he filed a case in the local woman's police station. They called my sister to the station for enquiry. My parents and she went there and the inspector madam, realized how well he was acting and how come he can come at 1 in midnight to give a case on a lady saying she bet him. He went to the station along with his mother. She asked my sister all the misdeeds all through. Then Inspector mam tooking in writing that he won't be repeating the same and will live peacefully hereafter from him From that day he never came home, and for October month he paid rent and sent my sister 8000 daily she has to take care of the younger one and drop the elder to school and pick her up. Then from the police office we got a call saying that he had filed a complaint to the Commissioner office against Inspector saying she didn't do the investigation properly He didnt come for Diwali and for Kid's 5th birthday as well. 2 weeks before kid got ill and she was hospitalizad in SMF(Anna nagar) for 4 days due to high fever, he didn't turn up as well. My parents offered to pay for the hospital fees but my sister refused it and paid from her savings 25,000. We tried calling him, his Sisters several times they never picked our calls. My sister also sent lot of whatsapp message asking for him to come back and take care of Kids. Yesterday he called the rental landlord and said them the house will be vacated in 2 days and that landlord called my Sister and is asking her to vacate immediately Today in our home, we got a petition saying he has filed for divorce, stating non coperation for sex and because of that mental pressure We are totally down Mam, My sister & entire family is crying very badly and we are not sure what should we do He is working in Saipem as Structural Engineer We are helpless not sure how to proceed, She is willing to stay together and don't have any other option as the kids are very young Thanks
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Your sister should file petition for RCR under section 9 of HMA
2) seek maintenance fir herself and children
3) also seek sole custody of children
4) also file DV case against husband seek protection order, alternative accommodation, maintenance and compensation for mental torture undergone by her
1. The husband of your sister is a crook and he msut be punished for his offences unless and until your sister is willing to return to her husband.
2. if not, then she must file a case u/s 498SA ipc.
3. In addition to it she can file case for maintenance under PWDV Act where she will get apart form monthly maintenance rent for alternative accommodation as well.
Firstly you need to appoint a lawyer to handle the divorce case, your sister needs to appear before the Court or else the matter will proceed ex-parte on her non appearance in spite of receiving summons.
Since it is not a mutual divorce the case proceeding will take longer time. If things are not settling and husband is not willing to take back the wife, you'll can try to settle things amicably. Both side lawyers can have a negotiation and you'll can file consent terms accordingly before the Court in the same divorce petition. In this Consent terms you can put down children's custody, access, maintenance clauses.
If this option is not working out then the divorce will proceed in usual way, you will have to fight the case. The wife can also proceed with filing a Domestic Violence Application before the Magistrate Court. She can approach the Protection Officer of your area and proceed accordingly, in that there will be no divorce but she can pray to the Court for protection orders, custody orders, etc.
- File petition for restitution of marriage.
Regards
Vivek Arya
Without fail, file FIR of domestic violence/physical abuse/dowry demand and marital rape. Marital rape is not crime but physical cruelty, and part of sec 498a IPC. His divorce petition will not bear any fruit.
Avoid the landlord, withtou due course of law, she cannot be evicted. File petition in court under protection of women from domestic violence act to claim interim relief - maintenance/protection order/arrange accommodation. Order will grant by court within 15 days.
Once FIR will file and court will grant maintenance/protection order/arrange accommodation order, situation will improve for her and deteriorate for him. Court will not grant divorce on non cooperation for sex .
Here living together will be matter for your sister. Kindly apply for separation and ask in that maintenance for her and children under section 125 Crpc and alimony from divorce act and HMA.
Do not go divorce to him at any cost because after 5-10 years inflation rates get changed so your sister will get easily maintenance from him and court may grant her 25-30% maintenance of his net monthly income.
The situation is not conducive at home hence it may not be advised for her to live with him together anymore.
She need not file a divorce case but she can file a domestic violence case and seek for residence and stay on the present residence till such time he arranges an accommodation for her outside this house.
She can even ask for maintenance and compensation along with return of her articles in the same DV case.
In the divorce petitioin she has to file a counter objecting to his petition strongly and contest the case properly if she do not want to give him divorce.
In the police complaint she can give a statement narrating all those happened that day night at her home so that his complaint may not be entertained by police any further.
You may consult an advocate in the local and proceed on the suggestions made on all such further issues.
Dear
You and your family should provide complete support to your sister in time of her need.
Ask her to file various case like Domestic violence and maintenance.
She should also lodge FIR against her husband and in-laws for dowry harassment and cruelty.
In DV case she can demand compensation for harassment and interim maintenance and residence orders for stay in matrimonial home or rent for same level accommodation.
See at this stage go before police station and file a case of domestic violence and cruelty for all the proof and proceed with the FIR let them get arrested for same.
Also file reply to his divorce application citing cruelties by him.
Also she can file for maintenance for herself and kids along with interim maintenance application.
Quite delicate.
Law can help separate and cannot bind bodies and thoughts.
His plan is to escape from her and get remarried.
As of now let her file a maintenance.
Regards
G.Rajaganapathy
High Court of Madras
1. Her husband is acting irrationally and illegally.
2. However, if he does not want to stay with your sister, no court can force him to return to her for continuing to have a conjugal life.
3. Your sister shall have to contest the divorce suit fittingly and also file file a petition seeking maintenance and alternate accommodation. She has the right to legally stay where her husband stays.
4. Your sister can also file a DV case and a police complaint u/s498A of IPC alleging dowry harassment.
Your sister can approach the mediation centre In court of local jurisdiction.
she can file DV case against husband.
she can file section 9 RCR.
A case should be filed for domestic violence beatings and threats. Also the divorce petition should be contested by her. Engage a lawyer for this. Lodge an fir. Also file an application for maintenance.
Regards
