I have been married for more than a year now. However, there has been differences between me and my husband to the extent that I am considering divorcing him now. Luckily for me, I have got an opportunity abroad for 2 years and am thinking of shifting soon. My question is - should I file for a divorce before moving or should I wait for a year or so and after file a divorce? I understand that there is some mandatory separation period before the court grants a divorce. Secondly, during wedding I had given gold ornaments and 1 lakh cash to my in- laws alongwith durables like AC, at their demand. Can I claim the same while filing a divorce? Thirdly, I would also like to claim compensation for mental stress that I had gone through during this 1 year period, what do I need for that? Finally, though I am working professional and well to do, I would also like to claim alimony, for ruining 1 year of my life abusing and torturing me mentally – though I must admit that there was no physical abuse. Do you think this is possible?
Asked 2 years ago in Civil Law from Kolkata, West Bengal
1) it is better you file for divorce by mutual consent before you travel abroad ,it takes around 6 months
2) consent terms in divorce petition should provide that your husband will return all gold ornaments . Cash consumer durables given at time of marriage
3)it is doubtful that your husband will agree for payment of compensation for mental torture undergone by you
4) since you are working your husband may not agree to pay you any alimony
5) if you want compensation , alimony file for contested divorce on grounds of mental cruelty but contested cases take around 5 years to be disposed of
1. You can file for divorce now or after shifting. Once you shift abroad you may have to come to India to complete the paper work in front of your lawyer, so you may file for divorce now.
2. No separation period is required if you are filing for divorce unilaterally.
3. The articles and cash given by you to your in-laws can be recovered by you by filing a complaint for recovery of istridhan.
4. If you wish to claim compensation for the mental harassment, if any, suffered by you then you are required to file a lawsuit to this effect.
5. You being an employed woman cannot claim alimony from your husband. The only financial liability you can mount on your husband is to compensate you for the mental torture suffered by you.
my opinion on your queries are as under:
should I file for a divorce before moving or should I wait for a year or so and after file a divorce?
Opinion: as per my opinion you should tried to settled the matter amicably, if not possible then file a divorce case under section 13(1)(ia) of Hindu marriage Act if both of you are Hindu and the marriage was solemnized as per Hindu rites and rituals.
I understand that there is some mandatory separation period before the court grants a divorce. Secondly, during wedding I had given gold ornaments and 1 lakh cash to my in- laws alongwith durables like AC, at their demand. Can I claim the same while filing a divorce?
Opinion: Yes you can claim after filing a criminal case u/s 406 of IPC or after filing a domestic violence case against them before magistrate. or after filing a civil suit for recovery of Istridhan before civil court.
Thirdly, I would also like to claim compensation for mental stress that I had gone through during this 1 year period, what do I need for that?
Opinion: yes you can claim compensation as per section 22 of Protection of Women from domestic Violence Act-2005 for mental harassment.
Finally, though I am working professional and well to do, I would also like to claim alimony, for ruining 1 year of my life abusing and torturing me mentally – though I must admit that there was no physical abuse. Do you think this is possible?
Opinion: As above.
you may contact over the phone after pay the consultation fee which is very nominal for further assistance and for understanding the whole procedure for filing the cases
Advocate, New Delhi
Try for filing a mutual divorce petition. You can claim return of all valuable including Gold . You can't get compensation for mental torture if unless it is proved for long term litigation.You are well to do then why ask ail-money. Escape from unlike relationships fast . If you claim it goes to long term litigation. Better suggestion is mutual divorce petition , it would take only less than 1 year for getting divorce.
First of all if you have decided to go to abroad employment for next two years, you will not be available in India to contest and conduct the divorce case which will result in dismissal.
If your husband agrees for mutual consent divorce then the period of separation between you both should be atleast one year or more.
If you want to file a divorce on the grounds of cruelty you can do it now but for that you are required to be present in India to conduct the case properly and throughout. Your power of attorney agent can also proceed with the prosecution but the POA agent cannot depose evidence on your behalf and cannot be cross examined instead of you.
For compensation there is no provision in law,but you seek alimony provided you are not employed and will not be able to sustain the expenses for your living.
You can ask for return of your property including jewels, but seeking refund of dowry amount will land you in trouble because giving dowry is also an offence.
Now Choice is yours.
1. You can file a divorce suit on the ground of cruelty after completion one year of marriage for which no seperation is legally required,
2. For filing muttual consent divorce, you are required to she that you have been seperated from him for more than one year,
3. You can file the divorce suit and execute a POA in favour of you relative or Lawyer to tersue your suit,
4. You can claim alimony in the said divorce suit,
5. However, before filing the above suit make sure that you collect adequate evidence of his mental cruelty in support of your allegation,
6. Since, litigation in our Country takes time, you will save two years if you file the suit now than if you file after two years while returning ro India.