• Preparing for divorce and child custody

As you all might be aware of my case, however a brief again… My wife has left the house on 2nd june 15, took my 6 yr old daughter. tried every effort to bring her back. I have lots of other proofs that she has done mental cruelty on my and my mother. My question are

1.	I have approached a NGO for amicable settlement, but wife denied to either speak or to come what so ever happens and said that she and our daughter will not go back. Would the NGO report will be helpful in my case.

2.	What is the advantage of Judicial sepeation u/s 10 of HMA.

3.	If I take Judicial separation u/s 10 of HMA. Would it be easier for me to take divorce after one year or again I have to proof that she has done mental cruelty. The purpose of asking this question is that despite taking judicial separation for 1 year, if I have to prove her mental cruelty again after one year then why not to file a divorce case right now to save time.

4.	Who can approach my wife or her parents for Mutual consented divorce, my lawyer or any one from my family

5.	Say if they agree for MCD and once the first motion is granted. Is it possible that my wife, just to make me suffer or to linger on the case, can deny in the second motion that she does not want a divorce. 

6.	She said she does not want a divorce with me but also will not come back. I know that she will surely deny in the second motion then wouldn't it be better to go for divorce on grounds of mental cruelty, right now, rather going for MCD to save time. I have other proofs of her mental cruelty on me and my mother.

7.	She had started denying having s*x with me say after mid 2013 and the content in her dairy (I HAVE 2 FINE PERSONS IN MY LIFE……abc,,,xyz……..AND I DON’T WANT TO LOSE ONE OVER ANOTHER AND BECAUSE OF MY INSEUCITY I HAVE ALLOWED THEM TO TOUCH ME AS I THINK BY SAYING NO THEY WILL LEAVE ME) was written in Oct 2013. She has left my house in June 2015, after I started asking about the unknown phone calls and messages. I tried my best to resolve the issue and to forgive her to bring her back for my daughter but every time she denied. Last month, under certain discussions,  she had sent me few of her pics (from her parental house, available on whatsapp with me) and has asked me to do it myself by watching the pics. Does this count under cruelty and can provide me one more reason to make my case move somewhat in my favour.

8.	Somehow, I am able to know the whereabouts of the guy to whom she is involved. He is above 40 yr and is still unmarried. Can it be, in anyway, help me in my case. 

10.	If she does not want to settle the case amicably so, is there any other way out or the only way is to file a divorce on mental cruelty against my wife what she has done in reality. 

11. I have small proof that she is still working but her company is in loss this. Does this make me pay maintenance to her. 

Request you to pls provide te answers point wise.

Thanks a lot.
Asked 12 months ago in Family Law from Delhi, Delhi
Religion: Hindu
1. Ngi has nothing to do in your case, wastage of time.
2. No advantage.
3. No advantage again.
4. Any of the two can approach.
5. Yes it can happen and you can't do anything.
6. Yes you better file suit for divorce.
7. This is good ground of divorce.
8. You can file case under section 497 ipc against him.
9. Yes
10. If there is great disparity in income then you have to maintain her.
Devajyoti Barman
Advocate, Kolkata
5157 Answers
54 Consultations
4.9 on 5.0
1) you can file for judicial separation you can file for divorce after period of 1 year of court decree  of judicial separation 

2)  section 13 of the Hindu Marriage Act provides that if there is no resumption of co-habitation between the parties one year after the decree for judicial separation is passed, the parties can get a decree for divorce on this ground itself.

3) you can approach your wife for divorce by mutual consent 

4) your wife can with draw her consent for mutual consent divorce before the second motion . 

5) if your wife is not willing for divorce your best option is to file for divorce on grounds of mental cruelty 

6) refusal to have sex amount to mental cruelty 

7) if your wife had an extra marital affair after  marriage you can file for divorce on grounds of adultery too
Ajay Sethi
Advocate, Mumbai
23120 Answers
1214 Consultations
5.0 on 5.0
1. Judicial separation is a mere paper tiger. Even if you apply for divorce  a year later on the ground of non-compliance of a positive decree she will be given an opportunity to contest your case. So either file for divorce or RCR.

2. Your lawyer, under specific authority from you, can approach your wife or her lawyer.

3. Your wife will be at liberty to back out before the second motion. This is very common. So do not go for MCD unless and until you have absolute trust in your wife.

4. Her denial of sex amounts to mental cruelty on the basis of which you can succeed in the court. 

5. Merely knowing the whereabouts will not suffice. Unless you have specific evidence to prove the adultery of your wife it will not be a wise idea to launch the prosecution of the guy she is involved with.

6. Her claim to maintenance can be dismissed if you can prove that she is working even if the company is in loss.
Ashish Davessar
Advocate, Jaipur
18058 Answers
445 Consultations
5.0 on 5.0
1.	I have approached a NGO for amicable settlement, but wife denied to either speak or to come what so ever happens and said that she and our daughter will not go back. Would the NGO report will be helpful in my case.
The NGO may mediate between you both but they have no power to make her obey their instructions, they cannot force her.



2.	What is the advantage of Judicial sepeation u/s 10 of HMA.
Judicial separation may help you to file divorce case at a later stage on the same grounds. The present tortures by her may be avoided.



3.	If I take Judicial separation u/s 10 of HMA. Would it be easier for me to take divorce after one year or again I have to proof that she has done mental cruelty. The purpose of asking this question is that despite taking judicial separation for 1 year, if I have to prove her mental cruelty again after one year then why not to file a divorce case right now to save time.
The judicial separation case itself is based on the grounds of mental cruelty, then if the situation is not improving after a certain period, the same grounds is valid which is evidenced through this judicial separation. However if you want to file divorce case on the same grounds now itself, there is nothing stopping you from doing so. 



4.	Who can approach my wife or her parents for Mutual consented divorce, my lawyer or any one from my family
Even you can approach her or can even send a legal notice asking her to give consent for divorce on the mutual consent grounds.


5.	Say if they agree for MCD and once the first motion is granted. Is it possible that my wife, just to make me suffer or to linger on the case, can deny in the second motion that she does not want a divorce. 
This her rights to do whatever she wants to, you cannot force a decision on her. 


6.	She said she does not want a divorce with me but also will not come back. I know that she will surely deny in the second motion then wouldn't it be better to go for divorce on grounds of mental cruelty, right now, rather going for MCD to save time. I have other proofs of her mental cruelty on me and my mother.
You're the better judge of the situation, you can decide the most feasible idea.



7.	She had started denying having s*x with me say after mid 2013 and the content in her dairy (I HAVE 2 FINE PERSONS IN MY LIFE……abc,,,xyz……..AND I DON’T WANT TO LOSE ONE OVER ANOTHER AND BECAUSE OF MY INSEUCITY I HAVE ALLOWED THEM TO TOUCH ME AS I THINK BY SAYING NO THEY WILL LEAVE ME) was written in Oct 2013. She has left my house in June 2015, after I started asking about the unknown phone calls and messages. I tried my best to resolve the issue and to forgive her to bring her back for my daughter but every time she denied. Last month, under certain discussions,  she had sent me few of her pics (from her parental house, available on whatsapp with me) and has asked me to do it myself by watching the pics. Does this count under cruelty and can provide me one more reason to make my case move somewhat in my favour.?
Such things are not admissible as primary evidence.  You can plead the circumstances as grounds for cruelty 




8.	Somehow, I am able to know the whereabouts of the guy to whom she is involved. He is above 40 yr and is still unmarried. Can it be, in anyway, help me in my case. 
You can implead him as 2nd respondent if you plan to file divorce case on the grounds of adultery.  He will be the adulterer.



10.	If she does not want to settle the case amicably so, is there any other way out or the only way is to file a divorce on mental cruelty against my wife what she has done in reality. 
If she is not willing for amicable settlement, you have no option than to go for contested divorce.




11. I have small proof that she is still working but her company is in loss this. Does this make me pay maintenance to her. 
If you evidence for her employment, better secure it and produce before the court in the maintenance case, the company's performance is not your botheration. 
T Kalaiselvan
Advocate, Vellore
13934 Answers
127 Consultations
5.0 on 5.0
Hi, Don't go for petition under section 10 of the Hindu Marriage Act, for judicial separation you have to prove the cruelty and ultimately you will not get divorce and you will be get only judicial separation.

2. Seek divorce on the ground of cruelty and in your case she has voluntarily have sex with other person so it is a good ground for divorce.

3. If you able to prove before the court that she has earning and she has sufficient income to maintain herself then you need not pay the any amount to her.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. No.NGO report will be of no consequence in your case,

2. The only advantage of judicial separation is that you are not divorced and can rejoin if you two so decide,

3.  Judicial separation is of no use in your case. File a divorce suit on the ground of cruelty,

4. You, your lawyer, your parents or anybody for that matter can approach your wife and/or her parents to negotiate for MCD,

5. Yes, she can absent herself on the day of the 2nd motion to further torture you,

6. if you are sure that she will not come for 2nd motion then file Divorce suit directly. Divorce Suit can also be converted to MCD case in case she agrees for it on a later date,

7. You should have evidence of her more direct act of cruelty for getting the decree of divorce,

8.  Unless and until you get irrefutable evidence of her having extra marital physical relationship with any other person, it can be considered as a ground for divorce,

9. If she does not want MCD, only remedy for you is to file a divorce suit,

10. If you can prove that she is employed and earning salary, she will not be entitled to claim any maintenance.

10. 
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0

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