• Divorce on ground of domestic/mental violence

Hi ,
Its regarding my sister . She has been married for 7.5 yrs . Now the things are bitter and his husband is torturing her physically and mentally. The matter is she initially gave birth to 2 twins but due to negligence and bad care they both were died (it was just one year of marriage). After this incident she is not able to give birth to children now. her husband does all type of cruelty to get rid of her . she is now at her parental home for 6 months . Her husband is also not ready to give divorce . He want to do second mariage and wants to stay his first wife to be with him on ground of he can't birth to child.
they tried with IVF also many times , still hope are there but now her husband is not ready to spend more money . please advice what to do or how to go for divorce or police complaint.
Asked 1 year ago in Family Law from Ghaziabad, Uttar Pradesh
Religion: Hindu
1) wife should file domestic violence case and seek right to stay in marrimonial home or alternative accommodation 

2) she should seek maintenance from her husband and compensation for mental torture undergone by her 

3) she can also file 498A case against her husband in local police station 

4)if husband remarries during subsistence of earlier marriage file complaint of bigamy against him 

5) merely because wife is not able to conceive is no grounds for second marriage
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
1) in the domestic violence case wife should seek maintenance 

2) you have not mentioned what is her husband income 

3) wife can get one third of husband income as maintenance 

4) wife should not file for divorce now 

5) it is only if husband agrees to pay her lump sum amount should she file for divorce by mutual consent 

6) wife can also claim litigation expenses 
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
1. Do not worry. Your sister is entitled to maintenance both for the children and for herself.
2. If she files case under Protection of Women Under Domestic Violence Act then she can get monthly maintenance both for herself and the children @ 1/3rd to 1/5th income of her husband.
3. Apart from that she is entitled to rent for accommodation or space for stay in her matrimonial home.
4. Ask her to file such case asap. She will get justice.
5. Try this once. As if her husband does not apologise and take her back then she can file case u/s 498A IPC against her marital tortures.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Hi, She has to file a petition under section 125 of the Criminal Procedure Code for maintenance, the court may also order for interim maintenance.

2. She can also file a petition for divorce on the ground of cruelty.

3. It is the duty of the husband to maintain his wife so he  has to pay the maintenance through out her life time or until she get remarriage.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Unless her husband obtains divorce he cannot remarry.

2. Your sister is at liberty to unilaterally file for divorce on the basis of cruelty suffered by her at the hands of her husband. Her husband can oppose the proceedings launched by her, but the court can still grant her divorce.

3. She can also claim compensation for the torture suffered by her. This apart, she can also sue him for maintenance as it is his duty to financially support his wife if she is not earning on her own. 

4. If she does not have the necessary funds to engage a lawyer she may apply to the District Legal Services Authority (the office of which is situated in the district court complex) to be assigned a lawyer at state expenditure.
Ashish Davessar
Advocate, Jaipur
18262 Answers
450 Consultations
5.0 on 5.0
1. The husband is not entitled to marry for the second time for the sole reason that his first wife could not give birth to a child,

2. File a police complaint u/s498A and also file DV case praying for seperate accomodation for your sister and maintenance,

3. If your sister wants to terminate the matrimonial relationship with her husband, she can file a divorce petition claiming substantial amount as alimony/compensation. 
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. File the DV case alongwith other cases as advised in my earlier post,

2. Act fast, the maintenance will be allowed from the date of application,

3. So, do not delay.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. Yes, file the cases as advised in my 1st post,

2. Please keep in mind that the maintenance will be allowed from the date of filing the maintenance application.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. File the DV case as suggested in my 1st post,

2. In the said case, you can pray for payment of legal fees also,

3. Engage a local lawyer having expertise in this field to handle your matter.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
She may file for maintenance in the family court against her husband immediately under section 125 of criminal procedure code. 

Further she needs to decide whether she wants to continue with her marriage or no. If she doesn't want to continue then at a later stage she may file for divorce and claim alimony in that petition. 


Regds, 

Adv. Payal 
Payal Arora
Advocate, Pune
333 Answers
7 Consultations
4.1 on 5.0
She is eligible to seek maintenance from her husband under the provisions of section 125 cr.p.c., 1973.
She can file a case with the family court or the JMFC within her residential jurisdiction seeking monthly maintenance  amount from her husband for the reason that he abandoned her.
She can even file a domestic violence case and seek residential rights, maintenance and protection too under the provisions of protection of women from domestic violence act, 2005.  She can file this case before the judicial magistrate court itself.
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
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