• Regarding wife staying in my house

Hello,

I'm married for 9 years. I have a kid who is 6 years old. 
My wife was working before marriage but not after that. 
I work in US, came here last year. I have an apartment in Bangalore where my wife and kid are staying. I want my wife and kid to come and stay with me in US. But she is not coming for silly reason. She is not working there in India. I have not filed for divorce. 
I want to know if i can evict her from my apartment forcibly. 
can i forcibly evict her after filing for divorce?
Do i need to send her money for maintenance if she is going to stay in my apartment?
Can she claim share in my apartment after divorce?

Thanks,
Balasubramanian
Asked 9 months ago in Family Law from United States
Religion: Hindu
1) she is your legally wedded wife and has right to stay in her matrimonial home 

2) if you try to evict her she will file complaint under DV act and seek right to stay in her matrimonial home and also an injunction restraining you from selling the flat 

3) after divorce you can file eviction suit against her 

4) as your wife she is entitled for maintenance 

5) wife has no share in husband property only has right to stay in her matrimonial home 
Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
1. During the subsistence of marriage wife has the right to reside in her husband's property except if she is guilty of committing cruelty. If you file a lawsuit for eviction against her then she can contest it successfully. This apart, she may also seek injunction to restrain you from evicting her. Unless the decree of divorce is actually passed by the court she cannot be evicted.

2. A claim to maintenance does not have a legal nexus with the right to reside in her matrimonial home. You continue to be liable to support her financially.

3. Her right is only to reside in your property, she cannot claim a share therein.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
Dear BalaBalasubramanian,
check the real cause  and think why she is not come to US .May be a better communication will /  mediation will solve your Problem. Try for get an amicable solution. 

The Protection of Women from Domestic Violence Act 2005 provides more protection to your wife. The act says 
that the aggrieved person may approach not only the Magistrate but also the Civil court, Family court or any other courts and seek reliefs including protection orders, residence orders,monetary reliefs,custody orders, and/or compensation orders. The D.V. Act has been enacted to provide a remedy in Civil Law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society.

You can't evict her forcefully.If your wife file a petition for protection order the magistrate easily allow it and also allowing the residence order under 19 of the DV Act  .It is the duty of husband to maintain his wife and children.But a wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
Have you decided to take divorce from your wife, in that case then you must first issue a legal notice seeking divorce and this must be duly served on her. 
My advice to you would be to first issue a legal notice under RCR, asking her to come and join you with your daughter if she fails to reply or comply with your demand then proceed to issue the notice seeking divorce from her.
After filing for divorce if the flat is owned only by you then you can evict your wife out of it, if not till the divorce is granted she can claim right of residence in the said flat. 
Maintenance has to be paid, if you pay voluntarily now, then she will not demand it through the court, if not she will claim maintenance through the courts. In any event, as a husband till divorce is granted you are liable to maintain your wife and daughter. I would say an amount of Rs.10,000/- p.m would be the like sum that the court will award towards maintenance.
Kiran N. Murthy
Advocate, Bangalore
765 Answers
51 Consultations
5.0 on 5.0
She can claim maintenance for herself and for the child but she can not claim any share in your property.
Forcefully eviction is not a solutions, it will be better to try to settled the matter amicably.

Feel fee to call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1. File a suit for Restitution of Conjugal Rights and after receiving the decree also if your wife does not join you then file for divorce on the ground of your wife refusing to live with you in her marital home.
2. If the decree of divorce comes in your favour then you can evict her from your apartment and not now as she is your legally wedded wife.
3. As long as she continues to be your wife you cannot evict her from your apartment forcibly and you cannot evict her after you file for divorce.
4. It depends on the order passed by the court.
5. If the apartment is your self acquired property then she cannot claim any share of the property whether it is before or after divorce 
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
Hi, as per law you can't forcibly evict her from her apartment, the law will not allow you.

2. Even after filling a petition for divorce you can't evict her.

3. It is the duty of the husband to maintain his wife and children  so you have to pay the maintenance to her.

4. You being the absolute owner of the property question of share in the Apartment does not arise.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
She cannot claim share in your property, but she can ask for "residence right" under Domestic violence Act.  She can also claim maintenance.  If you can prove that she is well educated and she had worked before marriage, you can avoid maintenance to you wife.  But However you are liable to pay maintenance to your child.  

It is better you settle the disputes amicably. 
Ravinder Pasula
Advocate, Hyderabad
316 Answers
68 Consultations
4.9 on 5.0
1. Collect adequate evidence that she has and is refusing to join you without any acceptable reason,

2. After that file a divorce petition on the ground of cruelty,

3. Till you are divorced, she is your wife and is entitled to stay at your flat,

4. After getting the decree of divorce you can take legal step to evict her from your flat,

5. You can stop sending her money but she might file a maintenance petition before the Court for her and her son's maintenance and in that case the Court will direct you to pay her maintenance which may be any where in between 1/5th and 1/3rd of your net monthly income,

6. Wife has no right title and interest on husband's properties till his life time. 

Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0
 I have not filed for divorce. 
I want to know if i can evict her from my apartment forcibly. 
You cannot force her to either shift herself to US or to vacate your apartment just because she is not inclined to leave the matrimonial house on your orders.  She has full rights in her matrimonial house until the marriage between you and her is effective and remains valid. Dont venture into such ideas, it will be illegal and you will be termed to have committed an offence if you force her out.




can i forcibly evict her after filing for divorce?
After divorce you can issue notice to her to vacate the apartment failing which you can initiate action by following due process of law.




Do i need to send her money for maintenance if she is going to stay in my apartment?
Staying in the apartment is different from giving her money for her maintenance, you are bound to maintain her and it becomes your duty to send her money.



Can she claim share in my apartment after divorce?
No, if it is your own and absolute property she do not  have any rights in the property and she cannot claim any share in it.  
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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