• Issues before filing divorce

Dears sir

I am living separately from my wife since last 7 month.  My wife blamed me for having extra marital affair.  Actually after marriage I m very honest with my wife and had no any illicit relationship.  But she tortured me for my past relationship before marriage.  She is not interested to stay along with my parents. Nowshe has filed ccomplaint in women cell stating that I had extra marital affair.  She threatened me of Dv and 498 case. She is claiming huge amount for settlement.  I have decided to file divorce on mental cruelty.  I had agricultural land on my name but now I have transferred it on my mothers name by way of gift deed. Can she claim share on that agricultural property?  She is working so can she get alimony?  What precautions should I take so that to avoid arrest under DV and 498. What can be done sso that she would get minimum alimony and maintenance?  Please help me. I have not uet file divorce.
Asked 1 year ago in Family Law from Pune, Maharashtra
Religion: Hindu
1. Your wife can not claim share in the property standing in your name. However she can claim for right of residence if any residential property stands in your name.
2. A working lady can not claim maintenance unless her earning is very meager compared to your income. However you have to establish her income in court to frustrate her claim for maintenance.
3. In DV case there is no provision for arrest. However in 498A case you can avoid arrest if you obtain anticipatory bail from sessions or high court.
4 Try to show your income as little as possible.

File a divorce suit asap if rapprochement is no more possible.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
1) wife had no share in husband property 

3) she cannot claim share in agricultural land 

3) if wife is working she won't get maintenance


4) there is no arrest in DV case 

5) if wife files 499A case obtain anticipatory bail 

6) making false allegations that husband is h
An extramarital affair amounts to mental cruelty
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
1. Your wife has no share in the land owned by you or your parents. Even if you had not gifted the proeprty to your mother she could still not have claimed it.

2. You are liberty to file for divorce against her.

3. The moment the case is registered by her you should immediately apply for anticipatory bail to avoid being arrested.

4. You can contest the claim to financial support by your wife on the basis that she left you without any justified reason.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:

Can she claim share on that agricultural property?  
Opinion: no she can not. She will not be entitle to get any share from your property.


She is working so can she get alimony?
Opinion: yes she can claim but will get or not its depend on the status, income, expenditures and saving of  both of you.

  What precautions should I take so that to avoid arrest under DV and 498.
Opinion: there is no arrest in dv case so relax for d.v.
If she filed 498A case then file anticipatory bail before session court or high court under section 438 of crpc.


 What can be done sso that she would get minimum alimony and maintenance?
Opinion: contact a lawyer personally or over the phone after pay the consultation fee which is very nominal and get all the details for fighting the case.
Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
4.9 on 5.0
Hello,
1) Your wife cannot claim anything out of the property. Once a gift deed is executed the transfer becomes absolute.

2) If your marriage is one year old you don't need to wait to file for divorce. You can certainly for for divorce on mental cruelty.

3) To avoid arrest you can get anticipatory bail. However do know that the police is directed to determine there's is a case before there is any arrest. Therefore be not frightened about the police arrest. Even if the police arrested you you won't be taken in custody of you have secured your bail.
4) Of she is employed and is able to support herself she is not entitled for maintenance. Maintenance will be decided by the court; you don't need to do anything about it.
S J Mathew
Advocate, Mumbai
1949 Answers
65 Consultations
5.0 on 5.0
Since your wife is working then you can avoid giving maintenance since she can maintain herself. But find where is she working because she may deny in the court that she's working. You can file a police complaint stating that she has left her home and now staying with her parents. If she has taken her belongings along with her do mention that as well. You may also mention that there has been no violence in the marriage and that she left her matrimonial home out of her own free will. 

She can claim in property whatever is in your name. Alimony she can claim at the time of divorce but if you prove that you have financial responsibility of your parents, siblings then the amount can be reduced. 

Regds, 

Adv. Payal
Payal Arora
Advocate, Pune
331 Answers
7 Consultations
4.1 on 5.0
If you have decided to divorce her, you may go ahead with a divorce case under the grounds of cruelty. 
She cannot demand or claim a share in your property either self acquired or ancestral, she can seek residential rights alone in her matrimonial home.
If she is employed and drawing a good salary, she may not become eligible for monthly maintenance amount or alimony amount.
No arrest in DV case but in 498a you may obtain anticipatory bail once she lodges a complaint with the police on this ground.
You may argue before the court on the basis of merits in your side to decide about the factors that may give room to grant the maintenance amount.
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
1) your past relationship before marriage had no co relation with your married life 

2) your wife cannot sue your ex girl friend and her parents for ruining her married life 

3) however if your sms messages show relationship continued after marriage your wife can file for divorce on grounds of adultery and make your girl friend a co respondent in divorce case 

4) you can send email or letter to your wife to return to her matrimonial home as you want to save your marriage 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
If she is not residing i your house at present, you may send a notice asking her to return to the matrimonial house, this will create a record of her leaving the house on so and so date.
She cannot take any action on your previous gf on any basis since you both do not have any relationship after your marriage.  Do not bother about her blackmails, she will try to torture you mentally this way, her complaint will not be taken by police or court. 
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
Hello,

1) She has nothing to do with your ex girl friend or her parents as they have done nothing illegal or any crime as such against her and therefore such complaints will not be entertained.

2) that you had communication with your ex girl friend in itself is not an offence that can be used to prosecute you.

3) Your best move is to file for Restitution of Conjugal Rights.This would mean that you are asking your wife to join you back in the matrimonial home and resume the marriage.If she fails to join you within 2 years of the decree on RCR it can form basis of divorce. This will put you at an advantage as the onus will shift back on the wife.
S J Mathew
Advocate, Mumbai
1949 Answers
65 Consultations
5.0 on 5.0
Your ex gf and her parents cannot be prosecuted unless you had a relationship with her even after marriage. You may invite her to join you back in your house which can be used in the court to show that she left the house without any legal necessity.



Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1) you tell your in laws that if they so dare to make false allegations against you then you will file complaint of criminal defamation against them

2) all your colleagues will be witness to false allegations made by them 

3) further inform them that girl will file suit for damages against them and also complaint of criminal defamation 

4) don't bow down to blackmail tactics . Refuse to make any payments 

5) instead of legal notice send email to them not to make false and defamatory statements about your character 

6) file for divorce on grounds of mental cruelty 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
1. There will be no provision for arrest in DV cases. As per last Supreme Court order in connection with 498A complaints, police will not make any arrest without  conducting an investigation based on the complaint,

2. She can not claim any share of your property during your life time,

3. She will not get any maintenance also if she is employed,

4. Try to audio recod all conversations of her thraets on you,

5. File a divorce suit on the ground of cruelty.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1. While filing the divorce suit, you can send a legal notice recording her staying with her parents for long against your wish,

2. Your GF whom you last met before your marriage can not be sued in any way,

3. If  any complaint or case is filed against her she can counter file a case for your wife's filing false complaint against her, after he case filed against her is disposed of in favour of your GF,

4. Try to audio record all her black mailing conversations to submit as evidence in your divorce suit.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1. Sending legal notice will be of no use,

2. if your inlaws visit your office and propagate against you, try to record their such act to be used as evidence later on,

3. After that file a defamation suit with the help of the above evidence.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1. Telling your colleagues about your previous relationship will amount to defamation. As such, you can prosecute them for doing so. Furthermore, you can seek a restraint order from the court to prevent them from communicating to your colleagues.

2. Before seeking a restraint order from the court you may send them a lawyer's notice on a short term compliance.

3. This may help you in the court.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
Suicidal threats and giving complaints to office, visiting office and insulting in front of office colleagues and posing threats for employment, criminal intimidation by relatives are all considered as grounds for cruelty and divorce thereon, but the  burden to prove it will lie on the  person who levels the charges. 

Yes you can go ahead.
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
Yes send them legal notice asking not to indulge in such illegal activities failing which you can file criminal case of defamation and civil suit for damages.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
No, she is not entitle to file any case against your ex-girl friend or her parents.
sending a legal notice will be better idea.

if they do that illegal act then you have right to file a defamation case along with an injunction suit against her before civil court and claim the compensation for harm your reputation as per your status.

threatening for suicide is come under the cruelty and on this ground you may file a divorce petition before family court/district court against her under section 13(1)(ia) of Hindu Marriage Act-1955
Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
4.9 on 5.0
Oh yes for sure it amounts to mental cruelty. They are just harassing you. You should send them a legal notice telling them to stop their nuisance or else you will file a case against them. 


Regds, 

Adv. Payal
Payal Arora
Advocate, Pune
331 Answers
7 Consultations
4.1 on 5.0
1) you can file for divorce on grounds of mental cruelty 

2) making false allegations that husband is having an affair amounts to mental cruelty. 

3) your wife had no right to stay in your mother s house . Your mother can obtain court order restraining your wife from disturbing her peaceful possession and restrain her from entering said house 

4) your wife can claim alternative accommodation under provisions of domestic violence act 

5) you cannot be forced to stay in city wherein your inlaws are staying

6) it is better you start staying separate in rented flat 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
Your past relationship will not work against you since post marriage you have been honest. Court will make sure that you both stay together so if she agrees to stay together you can't stop her. Being your wife she has a right in that property but tillvthe time your parents are alive she cannot exercise this right. 

Regds, 

Adv. Payal 
Payal Arora
Advocate, Pune
331 Answers
7 Consultations
4.1 on 5.0
1. Your going in to depression can not be a ground to seek divorce,

2. You are required to audion tape all her conversations amounting to cruelty and that audio tape can be used as an evidence against her,

3. Your wife can enter into your mother's house now and start staying there since you also stay there. She being your wife has the right to stay with her husband,

4. Take up a rented house keeping proper record of such tenancy and sending a letter about such Tenancy to police and post office,

5. After that if your wife tries to enter into your mother's house, she should not be allowed to stay therein since you do not stay there,

6. Your mother also can lodge a DV complaint against her.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1. The conduct of your wife is the root cause of your depression, so this definitely is cruelty committed by her.

2. If the house is owned by your parents she cannot through the instrument of law enforce the right to reside in it.

3. The expression  'disownment' is a creation of public ignorance. No one can legally disown anyone. So do not waste your time in making affidavits which lack legal vigour. 
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
She  has rights to live in her matrimonial house  as long  as she continues to be the wife. She cannot enter into  somebody's house including your parents house  where  you are not living. She can enter into the house where  you reside. Your parents can give a complaint for illegal  trespass offences against her besides giving a complaint under  domestic violence act for torturing them and for  protection  from her. 
If you are under  treatment for mental ill  health,you may produce the same before the police or court that you were not at all involved in any crime against her and all her complaints are falsely based especially the mental health condition being not stable,  there are  no chances for  any  such incidence.
You can live in a rented house but dont do the mistake of your parents disowning you, it is not advisable. 
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
1. If you have confident that there is no extra marital relation then you should not proceed for compromise or any other process.

2. let her to prove her case. if she fails to prove then you should file case for defamation, perjury and divorce. 

3. benefit for wait till decision of the is that after the judgement you will not be liable to pay any compensation, alimony or other monetery relief because it is held by the supreme court in t. sarita case that if wife files false case then it constitutes valid ground for divorce and prevent her to get any alimony or other relief from husband. 
    
Shivendra Pratap Singh
Advocate, Lucknow
2729 Answers
41 Consultations
4.9 on 5.0
1. In anresh kumar vs state of Bihar it is held by the supreme court that accused shall not be arrested merely on filing of complaint or fir. 

2. You shall not be arrested unless police conducted preliminary investigation anf taking permission from the court. 

3. you should file writ before high court and get an order on behalf of Anresh kumar's case that court shall not take any coercive action against your relatives and parents.
Shivendra Pratap Singh
Advocate, Lucknow
2729 Answers
41 Consultations
4.9 on 5.0
1. You most borne in mind that your friendly relation with a girl prior to the marriage can't constitute any ground in order to prove extra marital affair. 

2. court can't decide case only on inference, there must be some concrete proof that you have established bodily relation with a woman after marriage. Bodily relation means sexual intercourse with a woman and submission of that woman as a wife. 

3. there is many cases decided by the court that friendly relation with a woman can't termed to be an extra marital relations.   

4. In my opinion you should avoid to file any case against her, cross case will harmful for you. You should produce yourself as a victim rather that offensive. 
Shivendra Pratap Singh
Advocate, Lucknow
2729 Answers
41 Consultations
4.9 on 5.0
1) working wife is not entitled to alimony as she is able to maintain herself 

2) court can't force you to stay with your wife 

3) it depends upon what the parties agree in case they want divorce by urial consent 

4) you can obtain copy of complaint filed by your wife under RTI act

5) making false allegations to friends and relatives that husband is having an affair amounts to defamation 
6) rather than filing for defamation better fight existing cases of any filed by wife on merits 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
1. If your wife is employed, she is not entitled to any maintenance from you,

2. File a Divorce Suit as advised in my earlier post and in that case, Court can not advise you to stay with her before the Divorce Suit is disposed of,

3. The evidence of her cruelty if proved by yourself will fetch you the divorce decree without any alimony since she is employed,

4. Women Cell's rep[ort will certainly be considered by the Court,

5. No. You can get it from the Court where the case will be heard,

6. No. This is not called defamation as per law. You can file a case later on for her lodging false complaint against you,

7. No defamation charge stands here as per Indian Law.

Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1) I have strong proofs of her job in the form of salary slip of her employer. Can she claim alimoney? If yes then what expenses i should show to minimise the burden of alimoney?
Firstly in a mutual consent divorce, the terms of settlement  i.e., one time settlement of a huge sum is totally different to that of the alimony proceedings.  Permanent alimony will be decided upon various factors and the essential factor will be her gainful occupation/employment, source of income vide salary and other sources.  If it is established that she is earning a handsome salary through her employment and able to sustain herself, the alimony application may be rejected/dismissed.  Sometimes if the spouse's income is very high and the status is far better to that her, then the court may consider to accord her the status of her spouse by granting alimony to that extent.


2) I dont want to live with my wife because i feel i am not safe or something wrong may happen with my parents and myself also. So can court order me to stay together because my wife may say in the court to stay together?
Court cannot force you to stay  and live with her together, if you refuse to live with her anymore, the court cannot compel the situation but may pass order for providing her with proper residence.



3) What factors are taken into account while deciding one time settlement amount in the court? So that i can negotiate with my wife to settle the matter out of the court by mutual consent.
Court will not interfere in one time settlement or about the quantum of settlement, it will be between you both, you may bargain and negotiate the settlement as per your terms. 


4) Can court consider report of women cell as proof or eye witness of members of women cell in court proceedings?
For what?  As you are trying for a mutual consent divorce with the terms of settlement, what is the necessity of women cell report?, further the women cell report may be used as evidence from your side if you have decided to contest the case. 



5) I requested women cell to give the copy of complaint that my wife has given against me but women cell deny to give it. Can i obtained it under Right to information act?
They are supposed to provide a copy, you may obtain it through RTI act also.


6) She has given written complain in women cell stating that i have extra marital affair. Can this written compalint be taken as ground for filling case of demation? 
It is just a complaint with unfound allegations.  Have you proved her wrong? if not, on what basis you say that she has given a false complaint?  First prove her to be wrong and then think of filing a libel case against her.



7) Where to file defamation case? I mean to say, I have shifted to my hometown which comes in district B (name change) and she file complaint in women cell in district A (name change) so where to file defamtion case?
The proposed case will not be maintainable wherever you intend to file, however the jurisdiction will fall where the said defamation is reported to have occurred. 

T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
1. Since she is employed she is disqualified from claiming any financial support including alimony.

2. No court can order you to stay with her if you do not wish to.

3. In so far as one time settlement is concerned it is entirely up to the spouses to decide what it would be. No factors are taken into account while calculating the amount. It is more or less like an open market bargain.

4. The court should certainly consider the women cell report in your favour.

5. Women cell is obligated to provide a copy of the complaint. You can take recourse to RTI to obtain it.

6. Her accusation of infidelity entitles you to launch her prosecution for defamation.

7. You can file the case where you are residing.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
If you prove that your wife is working good you will still have to pay alimony but it would be minimised. You will have to show your dependants as in your parents, unmarried sister or other expenses like house rent, loan repayment etc on such grounds your alimony amount can be negotiated. 

Yes court can consider report of women cell and good it's in your favour. If you don't want to continue with your marriage you will have to contest it strongly even if your wife agrees for mutual consent divorce you will have to approach court for divorce. 

Regds,

Adv. Payal
Payal Arora
Advocate, Pune
331 Answers
7 Consultations
4.1 on 5.0
1) refuse to pay huge amount demanded by your wife 

2) under section 160 Crpc police have powers to summon witnesses . if any notice has been issued you should attend police station have your statement recorded 

3) deny all allegations made 

4) request for copy of complaint  filed by your wife 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
Now I have received notice from Mahila Suraksha Vishesh  kash u/s 160 asking me along with my parents to be present for enquiry.  What is this notice? Can I get copy of complaint or FIR if my wife has filed against me and my family members? What should I suppose to state in police station at the time of enquiry?

The notice what you have received from Mahila  should be based on her complaint against you for dowry demand, harassment, domestic violence etc, which can be the result of her frustration against the police complaints you have lodged against her in different police stations.  So she is trying to wreak vengeance on yo and for putting more pressure on you, she has added your parents and close relatives in her complaint. Well, if you have received a notice, it becomes your duty to attend the inquiry session, however yo be quipped with the copies of your compliant against her with different police stations and also the divorce or any other legal proceedings to prove that she has not approached the authorities with clean hands and the intention behind her complaint was just to take vengeance on you and to trouble your parents also so that the pressure mounted this way may bring you to the negotiating platform where she is demanding ransom to relieve you from marital obligations in the form of mutual consent divorce. Be accompanied by your advocate to the Mahila Thana and if necessary ask him to file AB.
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
Section 160 in The Code Of Criminal Procedure, 1973
160. Police officer' s power to require attendance of witnesses.
(1) Any police officer, making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required: Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.
(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub- section (1) at any place other than his residence.
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
The notice has been issued to record your statement in response to a complaint which has been filed by your wife. What is the nature of complaint is something only your lawyer can find out. You should as a preemptive measure apply for anticipatory bail. 
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1. It appears that your wife has lodged a complaint for which the police is conducting an investigation,

2. As per Sec.160 of IPC, police officer making an investigation may, by order in writing, require the attendance of anybody before himself  and such person shall as so required,

3. Visit the police station and attend the investigation as asked for on the scheduled day and develop rapport with the IO to get favourable investigation report.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0

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