• Fight against planning of divorce

Hello Experts,
I am mother of a daughter of 4 years married from past 5 years. With some ongoing disputes between me and my in laws, i moved out with my daughter and husband of our matrimonial house and started living on rent. My husband was always in favor of his parents who were always criticizing me for less dowry and not having male child. 
Now situation is that my husband is not coming home from past 1 month, not picking up any calls as he changed his number and no communication at all. He is planning to give me divorce on basis of desertion i think. I don't want to give him divorce at all but don't know what to do. Took advise from a known legal person, he suggested not to do anything and move to parents house.
I am confused shall i file a maintainence case and DV or not.
Expert please suggest.
To add, my husband was used to work as employee in family business which was on mother in law name. Our matrimonial house was on my husband name which he transferred back to mother name showing as he needed money for some business. Now he has left job from family business. Currently state is unknown to me.
Asked 6 years ago in Family Law
Religion: Hindu

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17 Answers

You can file DV case and demand maintenance from your mother in law as she has common business. You can also file restitution of congual rights to get your husband back. You can also file 125 crpc maintenance petition for maintenance from husband

Prashant Nayak
Advocate, Mumbai
34667 Answers
249 Consultations

Dear Madam,

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

Further, she can also file an application under Section 12 of Domestic Violence Act, thereby seeking compensation for mental harassment. In case she requires residence, then she can file application under Section 19 of the said Act for seeking right to residence. In addition to aforesaid,  in case she desires maintenance then she can file a case under Section 125 Cr.P.C., thereby seeking maintenance.

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.

Procedure for filing a domestic violence case 

The victim of domestic violence or any witness of the offence, on her behalf, can file an FIR/complaint with the local police officer, or the protection officer, or service provider, or directly to the Magistrate. The basic question that comes in the mind of every person filing a case is that which court should he/her approach? A domestic violence case is heard by the judge of the court within whose local limit either the victim resides or the accused or where the action has been committed. 

1. The Magistrate shall upon receiving the complaint, commence the hearing of the case within 3 days of the complaint being filed. 
2. The Magistrate shall also give the notice of the date of hearing to the Protection officer who shall issue it to the accused.
3. The court shall as far as possible dispose the case within a period of sixty days from the date of the first hearing. 
4.You can even request the Magistrate to conduct the proceeding in camera, i.e. you will not be required to be physically present for the hearing and the proceedings will be conducted via video conferencing. 
5. The court after conducting the hearings of the case, if satisfied that a genuine case of domestic violence was filed and the accused has actually committed the offence, can pass any of the following orders as it may consider necessary in the circumstances of the case (you can also request the court to pass any of these orders)- 
a. Protection orders: Wherein the court can further restrain the accused to commit the act of domestic violence on you or any of your family members or can even disallow him/her to enter your place of employment or residence. The protection order can be claimed by you as an interim relief, i.e. before the final judgement is passed. 
b. Residence orders: The court, if satisfied, that you have no other place to stay or for any other reason, then it can also prevent the accused from dispossessing you from your matrimonial home and can even disallow him to enter that area of the household in which you are residing. 
c. Monetary relief: You can even ask the court for monetary relief from the accused in order to incur your medical expenses any other loss that has occurred to you due to the offence being committed.
d. Custody of the child: The court can also grant the temporary custody of the child/children to the person making the application. 
e. Compensation orders: In addition to above-mentioned reliefs, the Magistrate may also on an application being made by you, pass an order directing the accused to pay the compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence

These orders will remain in force until the victim files an application in the court for its revocation. 

If the order of the court is not passed in your favour, you can also make an appeal against the order within thirty days from the date on which the order is passed. 

Netravathi Kalaskar
Advocate, Bengaluru
4951 Answers
27 Consultations

File a RCR application against him in the family court. The court shall summon him and ask him to explain why he has deserted you. In case he doesn't respond file a case of cruelty and dowry case against them. He has done all this to avoid maintenance.

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

You can file application for maintenance under section 125cr PC seek maintenance fir your self and child 

 

also file DV case seek alternative accommodation, maintenance and compensation for mental torture undergone by you 

Ajay Sethi
Advocate, Mumbai
99985 Answers
8162 Consultations

Then file for maintenance at least. As far as i can see he is saving himself and his mother from any maintenance or alimony.

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

See.you can file complaint before police station for.curelty and harassment for.dowry and for male child also you can file separate case for maintenance for yourself and child also you can seek protection and residence rights in matrimonial home.

Further if husband files divorce same can be contested.

Also in case he is not ready to live with you there is no use in staying like this you can seek handsome compensation and divorce.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Dear Madam,

Yes you can file  Dowry and DV case and maintenance case.  Your husband may file divorce case.

Netravathi Kalaskar
Advocate, Bengaluru
4951 Answers
27 Consultations

When you will file dv case he may file divorce as a counter. If he files divorce you file RCR petition in family court to get him back. You can also file RCR now you get him back

Prashant Nayak
Advocate, Mumbai
34667 Answers
249 Consultations

File petition for RCR if you don’t want divorce 

Ajay Sethi
Advocate, Mumbai
99985 Answers
8162 Consultations

Don't give her divorce, ask only for maintenance from him before the appropriate forum which is necessary to prove that he is not looking after you, please keep in mind you are living separately as they all convert your to hell. 

Koshal Kumar Vatsa
Advocate, Gurgaon
2282 Answers
3 Consultations

Better file maintenance case and DV case. Non earning status of husband dose not disqualify wife to claim maintiancne and rent etc.

Filing any case will not result in divorce. If he files for divorce, contest it.

Yogendra Singh Rajawat
Advocate, Jaipur
23085 Answers
31 Consultations

You can file petition under 125crpc  maintenance  for youself and for child and also you can file domestic violence .

Mohammed Mujeeb
Advocate, Hyderabad
19375 Answers
32 Consultations

Before taking any decision , you must know the following rights :

- As per law, A wife has the right to claim decent living standards and basic comforts of life from her husband. Hence for claiming the maintenance for her & child, you can file a petition under section 125 CrPc.

- Her husband is under legal obligation to provide the same to you at any cost, even he is working or not. 

- Further, Law entitles wives a basic right to reside in the matrimonial/ home, whether the house owned by her husband or his parents, a rented property or officially provided to him. 

- Hence, for claiming your residential right, medical expenses etc, and also for teaching a lesson to the family members of your husband, who subjected you torture & harassment , you can file a petition under the provisions of Domestic Violence Act.

- Further, As per the Supreme Court, A wife has complete ownership rights over all her Streedhan, the gifts and money given to her before and after marriage. The denial of Streedhan to the wife makes the husband and in-laws liable for criminal charges. 

- And further, if the husband or his family members subjected a woman to cruelty for the dowry demand, then they can be booked under Section 498-A.

- Hence, you can lodge a written complaint against your  husband & his family members, in the Women cell/Mahila Police, after mentioning all the details of torture & harassment. 

- The women cell firstly will try to reconcile between them, otherwise, they will lodge an FIR against all the person, who subjected you cruelty. 

- It is not necessary that filing the above cases  will result into the Divorce , you can settle the dispute with your husband at any stages/time during the proceeding of the cases . 

Mohammed Shahzad
Advocate, Delhi
15852 Answers
243 Consultations

1. Maintenance can be claimed in DV case also.

2. You can contest the divorce petition if and when he files.

3. He is at liberty to file divorce petition at anytime irrespective of whether you file the case or not.

Ashish Davessar
Advocate, Jaipur
30843 Answers
982 Consultations

You can file maintenance case for you and your daughter.

You can file DV case seeking protection, residence, monthly maintenance, return of your dowry articles and compensation amount towards the trouble and tortures given to you by him and his close relatives.

You can give a criminal complaint for dowry demand harassment as well as for criminal intimidation.

You do not have to give him divorce, you can challenge his divorce case properly.

 

T Kalaiselvan
Advocate, Vellore
90187 Answers
2506 Consultations

You do not have to agree for his divorce case, you can refuse and strongly challenge his divorce case.

By filing DV case or any other case against him shall not pave way for divorce.

T Kalaiselvan
Advocate, Vellore
90187 Answers
2506 Consultations

1. You should definitely file case for maintenance and Domestic violence against your husband and his family.

2. You should mention all the transfer and leaving the job and taking you on rent to show his conduct and planning against you. 

3. If you don't want divorce then you should also file RCR petition.

 

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

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