• 498A and divorce

My wife wanted me to stay away from my parents, I denied to do so. She is staying away for more than a year now. Meanwhile she had summoned me to CAW branch where she alleged harassment by my parents and told her intentions to live separate with me. I maintained my stand and denied to stay away from my parents. Later she filed 498A against me and my parents, which we got bailed. 
Now I want to go for divorce ? On what ground can I get divorce and how much maintenance I need to pay. She has master's degree and not working, I earn around 60K. Or should I fight for 498A instead ?
Asked 1 year ago in Family Law from Bihar Shar, Bihar
Religion: Hindu
1) 498A  cases take over 5 years to be disposed of 

2) it is better you for for divorce on grounds of mental cruelty so that your divorce case can proceed simultaneously 

3) contested divorce cases take  5 years to be disposed of 
Ajay Sethi
Advocate, Mumbai
23401 Answers
1230 Consultations
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1) court can award around one third of your income as maintenance 

2) you should stress on her educational qualifications that wife is highly qualified and deliberately not working 

3) if you have dependent parents you should in your reply to her maintenance application emphasise said fact 
Ajay Sethi
Advocate, Mumbai
23401 Answers
1230 Consultations
5.0 on 5.0
1. Applying for mutual divorce is best bet as it take neither time nor mud slinging in court.
2. If this does not happen then you can file contested suit for divorce on the ground of mental cruelty citing her tortures perpetrated upon you.
3. The success of divorce suit has nothing to do with her claim for maintenance.
4. Even after divorce you will have to provide her maintenance as long as she lives or she does not remarry.
5. The quantum of maintenance is around 1/3 to 1/5 of your income. Try to show your income as little as possible.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
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You can file the divorce case under the ground mental cruelty .No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. Even though the quantum of maintenance is 1/3 to 1/5 of the income .No to reveal your actual earning. Also take the contention that your wife is educated and capable of earning herself. 
Ajay N S
Advocate, Ernakulam
1918 Answers
19 Consultations
5.0 on 5.0
1. What do you mean by saying 'Or should I fight for 498A instead'? You shall have to contest the 498A case fittingly otherwise, if the charges are proved, you will be put behind the bars,

2. Moreover, 498A complaint is non-compoundable i.e. it can not be withdrawn. It can be quashed by filing application before High Court if she co-operates,

3. You can file divorce suit on the ground of cruelty by collecting evidence by audio taping  her conversations  Filing false complaint u/s498A is also considered as cruelty, 

4. If you file divorce suit as per HM act, she can interrupt the proceeding by filing maintenance petition as per the said Act which will be heard by the Court first,

5. You can take the plea that she is highly qualified and capable of maintaining her own self,

6. Even if maintenance is awarded to her it will be any where in between 1/5th to 1/3rd of your net monthly earning,

7. Take housing loan now so that good amount is deducted from your salary towards EMI. 
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1. The Court will decide whether you shall have to pay her alimony or not and how much will be the amount,

2. As detailed in my earlier post, it will be easier for her to file an application u/s 24 of HM Act during the pendency of your divorce suit which you will file u/s 13 of the said Act,

3. The tip for reducing the maintenance amount has already been given in my earlier post.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1. Keep an eye on her to ascertain whether she has started working anywhere or not,

2. You can engage a detective agency also to collect the information of her employment, if any,

3.Employed wife is not entitled to any maintenance.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
Dear Querist
you may file a divorce case on cruelty ground against her before family court/District Court.

if she proved that she is unable to maintain herself then you have to pay 1/3 of your income to her as maintenance, but if you prove that she is able to maintain herself and there is no sufficient reason to live separately from you then her maintenance petition may be dismissed,

Feel Free to CAll
Nadeem Qureshi
Advocate, New Delhi
3539 Answers
131 Consultations
4.9 on 5.0
1) don't purchase any flat during pendency of divorce proceedings 

2) wife can claim right to stay in said flat on grounds it is her. Matrimonial home 

3)your maintenance amount won't be reduced b y court  
Ajay Sethi
Advocate, Mumbai
23401 Answers
1230 Consultations
5.0 on 5.0
1. No. Your wife can not lay any claim on your asset,

2. She can claim share of your monthly income only towards maintenance,

3. that is why I advised you to buy a flat by taking home loan so that good amount of money toeards EMI is deducted from your salary reducing your monthly net income substantially,

4. You should purchase the asset in your name only before she files maintenance application against you.

Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
should I fight for 498A instead ?
Yes you have to challenge her false case and fight it tooth and nail.





Now I want to go for divorce ? On what ground can I get divorce and how much maintenance I need to pay. She has master's degree and not working.Say If I get divorce on a particular ground, Do I still need to pay alimony afterwards ?
You  can file divorce case on the grounds of cruelty.  If she is claiming for alimony the court will decide on the quantum of alimony based on the arguments made by both sides basing their own evidences. 




Secondly, To lower the maintenance, If I take loan to purchase any asset (say land or House) in order to tell that a major amount is deducted from my monthly salary. Then knowing that I am paying for some asset, can my wife make a claim on that asset ?
If your intention of purchasing  an asset  by taking loan is for lowering maintenance amount is known to her, she may argue  on that point itself, then the  court may take a decision against you.  However she cannot claim any share in the asset.  She has got no rights in it. 




Can I purchase the asset in someones name ?  
Not necessary



Or is it a bad Idea to purchase any asset in such situation ?
Itis your own decision, there is no harm in buying an asset.
T Kalaiselvan
Advocate, Vellore
14171 Answers
128 Consultations
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It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded after considering.
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant’ s property and any income derived from such property, or from the claimant’ s own earnings or from any other source;
(e) the number of persons entitled to maintenance

So every case the court look in different way. Buying a house during pendency of the case is not advisable one to lower the maintenance amount .
If possible you can obtain a low salary certificate from your institution and produce if needed when considering your net salary. 
Ajay N S
Advocate, Ernakulam
1918 Answers
19 Consultations
5.0 on 5.0
Hi sir/madam, I can understand your point of situation. I would like to adivce to you that, you have to issued a legal notice to come and join with you, if she failed to do so, thereafter you have to file RCR against her. It will be very helpful to avoid the u/s 498A of IPC case and D.V Act case as well as Maintenance. After filing the RCR and after passing of RCR order against your wife, if she failed to comply the RCR order, thereafter after lapse of one year from the date of RCR order, you have to file divorce case on the ground of refusal you will get divorce against your wife. In regard to Maintenance you have to establish her education and she will be capable to maintain herself of her life without aiding of yours. And one more important thing is you do not share and disclose to anybody along with your wife about your salary as well your position in the company. You do not purchase the site in your name in these days, your wife will claim her share in your property, you will purchase the property in the name of somebody if you are trust on that person and becareful in this regard.
C. V. Jadhav
Advocate, Bangalore
262 Answers
3 Consultations
3.8 on 5.0
1. You can file for divorce on the ground of cruelty. 

2. The liability of maintenance, if any, will be decided on the basis of your salary and the earning capacity of your wife. A wife who has sufficient educational qualifications has to work to earn instead of making her husband liable to support her financially. You can contest her claim.

3. Divorce has no nexus with alimony. If the amount awarded by the court is on a higher side then you can challenge it in the High Court.

4. Taking loan will not help in as much as the court has to decide the amount of maintenance keeping in mind the standard of life which the wife is entitled to enjoy. If you purchase the asset in somebody else's name it will be a clear message to the court that you have done so in order to defeat her right.

5. Your wife cannot make any claim on your movable or immovable assets.



Ashish Davessar
Advocate, Jaipur
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450 Consultations
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