• Can I file a divorce with a case of dowry and DV initiated

After 4 months of marriage, my wife left the house and put a case in CAW cell that I have been beating her with chappals, mentally tortured her, asked for 50 lakh dowry and even tried to kill her by poisoning her food (all false, she has no evidence for anything). The same allegations of dowry and mental harassment have been put against my old parents (who stayed with her for 2 months initially). The marriage is also not consummated. I have already filed an injunction/civil suite against my wife on the grounds of her misconduct, the case is ongoing. Now the counselling failed and they have asked my wife to proceed for FIR in regards to dowry act and DV act. She has already put a maintanence case asking for a amount of 80k per month (my in-hand salary is only 70k and she is Engg and MBA and was working before marriage and she actually left house on her own). 

My question in these circumstances how should I proceed legally? Can I file for a divorce, as marriage is just 9 months old.. Please advise
Asked 4 months ago in Family Law from New Delhi, Delhi
Religion: Hindu
You cannot file divorce case within one yer from the date of marriage.

However this is a good case for divorce but or that you may have to wait to prove that the cases filed by her are false.

If she is highly qualified you can repudiate her claim for maintenance on that ground itself.

There are various judgments of Delhi high court itself stating that a highly qualified woman cannot sit idle at home and claim maintenance from her husband.

The quantum of maintenance she claims is based on her greedy assumptions.

She has to prove your income to the satisfaction of court after which the court may decide about the same. 

First let she go  a round with all her criminal complaints which should be challenged properly and then decide about filing divorce case agaisnt her.

As you have mentioned that your marriage was not consummated, why dont you file a case for annulling your marriage stating that your marriage was not consummated owing to her impotency. Let she prove her potency before court. 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1)only in exceptional circumstances can you file for divorce before expiry of one year of marriage 

2)wait for another 3 months and then file for divorce on grounds of mental cruelty

3) gather evidence that wife was working before marriage 

4)wife who is highly qualified and has worked in past is not entitled to any maintenance

5) in case FIR is filed against you and your parents obtain AB from sessions court 
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
 RESERVED ON : 19.04.2012
PRONOUNCED ON: 14.05.2012
+ CRL.REV.P. 344/2011
DAMANREET KAUR ….. Petitioner
Through: Mr.Sugam Puri, Advocate
versus
INDERMEET JUNEJA & ANR ….. Respondents
Through: Mr.Shyam Moorjani with
Mr.Taru Goomber, Mr.Pankaj Mendiratta
and Mr. Gaurav Goswami, Advocates.
CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI
%
1. The petitioner has preferred this revision petition
impugning the order dated 01.06.2011 passed by the learned
Addl. Sessions Judge, Delhi. The petitioner is wife of respondent
Indermeet Juneja. She filed a complaint case bearing No.352/3
under Section 12 of Protection of Women from Domestic
Violence Act, 2005 alongwith an application for monetary relief
under Section 23 of the Act. Her prayer for interim monetary
relief was declined vide order dated 18.11.2010 by the learned
M.M.
2. Feeling aggrieved, she preferred an appeal against the
said order passed by the learned M.M. declining monetary relief
to her. In appeal, the learned ASJ vide the impugned order CRL.REV.P. 344/2011 Page 2 of 8
dated 01.06.2011 though declined the prayer of interim
monetary relief to the petitioner, partly allowed the appeal and
directed the respondent to pay a sum of Rs.10,000/- per month
from the date of filing of the petition towards contribution of
the respondent to maintain the child born out of the wedlock of
the parties.
3. The grievance of the petitioner is that the learned ASJ
committed an error in declining the relief to her on the ground
that she was well qualified, capable to maintain herself and
had the capacity to work and that she had also been actually
earning in the past and was thus not entitled to get any
maintenance from the respondent. The petitioner has
submitted that earlier she was working with Met Life Insurance
Company since the birth of her child. The company due to its
relocation process had asked the petitioner to shift to
Bangalore. She could not accept this offer as it would not be
appropriate for the child to be uprooted from the place where
she has been residing and due to the fact that there were
visitation orders passed by the learned Sessions Court and had
the petitioner along with the child shifted to Bangalore, the said
orders could not have been complied with. As such the
petitioner turned down the offer of the company. The company
refused to change its policy and the petitioner was forced to
resign from her job.
4. The relieving letter placed on record by the petitioner is
dated 17.08.2010. As per this relieving letter the date of joining CRL.REV.P. 344/2011 Page 3 of 8
of the petitioner with Met Life was 07.01.2008 and her
designation at the time of leaving the company was Assistant
Manager (Service Delivery). She has been relieved pursuant to
her resignation letter dated 17.06.2010. This letter is not
accompanied by the resignation letter of the petitioner giving
the reasons for her resignation or the policy of the company to
shift her to Bangalore. It is relevant to mention here that while
the date of joining of petitioner with Met Life Insurance is
07.01.2008, the petitioner has given birth to a female child on
18.09.2008 i.e. in the same year and despite having infant
child to take care, she has served the company till she was
relieved on 17.08.2010.
5. The contention of petitioner is that in order to comply
with the order of the Court to allow the respondent to have
visitation right she could not shift to Bangalore. There is
nothing on record to indicate that at any point of time despite
continuous litigation going on between the parties she had
approached the Court for modification of the order regarding
visitation right. If the petitioner of her own prefers to resign,
she cannot take shelter under the Court order regarding
visitation right. With the passage of time the child has grown
up and is of school going age. Thus, it is more convenient for a
working mother to be in the job then to sit at home.
6. The learned ASJ has rightly declined the interim monetary
relief to the petitioner by holding that she was well educated
lady earning Rs.50,000/- per month and had chosen not to CRL.REV.P. 344/2011 Page 4 of 8
work of her own will though had the capacity to work and find a
suitable job for herself.
7. The learned ASJ in the impugned order has also corrected
the error appearing in the order of learned M.M declining the
monetary relief to the child for the reason that she was not the
petitioner before the Court. In para-10 of the impugned order,
the learned ASJ, after considering the facts and relevant case
law has concluded as under:-
“10. On perusal of record and after hearing the
submissions made at bar, I do not find any infirmity in the
impugned order as regards maintenance to the
appellant/wife is concerned. The question, whether
appellant/wife was forced to resign or she had resigned
herself is a question to be considered by the court during
trial and also the question whether the reasons given by
her for resigning were satisfactory or not. These are the
question to be gone into during evidence by the Learned
Trial Court. But, the observation of the Learned Trial Court
in para-10 i.e. “As far as the maintenance of the child is
concerned, since she is not the petitioner in the present
complaint, I would not be able to pass any orders as
regards the maintenance for the daughter of the parties”,
is erroneous and cannot be sustained. Admittedly on the
date, when application u/s. 12 of the „act? was filed by the
appellant/wife, child was in the custody of the husband.
Secondly, if the scheme of the act is seen as a whole, it is
obvious that it is not necessary that the child should be
impleaded as a party. Relief can be granted to the child or
for the benefit of the child without child being impleaded
as a party. The relief can be granted not only to the
aggrieved person, but also to the „child?. On reading of
Section 20 and 21 of the „Act? it is clear that not only
aggrieved person, but any child or children may be
granted relief. The court has to keep in mind the interest
and the welfare of the child, even if child is not a party.
Therefore, orders as regard custody or the maintenance or
the welfare of the „children? can be passed even if child is CRL.REV.P. 344/2011 Page 5 of 8
not a party in the application filed under the „Act? before
Learned Metropolitan Magistrate. There is manifest error
in the impugned order as regards the observations in
para-10 of the impugned order, which is set aside. In view
of this, it is directed that Learned Trial Court shall decide
the quantum of maintenance for the minor daughter of
the parties after making a realistic assessment of the
needs of child, keeping in view the status of parties, on
the basis of material placed on record by the parties.
Respondent/husband submitted that he was ready and
willing to bear 50% of expenditure of the child. He can
show his bonafide by providing some assistance to the
child so that the child is brought up in an appropriate
atmosphere and so that she is provided with minimum
comfort, which the child requires.
11. In the circumstances, till further orders are passed by
the Learned Trial Court, I deem it expedient in the interest
of justice to direct the respondent/husband to pay sum of
Rs.10,000/- per month towards his contribution from the
date of filing of the petition to maintain the child. The
amount ordered to be paid by respondent/husband shall
not tantamount to be an expression on merits of the case.
Appeal stands disposed of accordingly. TCR be sent back
alongwith copy of this order. File be consigned to Record
Room.”
8. In Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3)
MPLJ 100, the High Court of Madhya Pradesh while dealing
with identical situation observed that well qualified spouses
desirous of remaining idle, not making efforts for the purpose
of finding out a source of livelihood, have to be discouraged, if
the society wants to progress. For better appreciation, relevant
paragraphs of the said decision are reproduced hereunder:-
“In view of this, the question arises, as to in what way
Section 24 of the Act has to be interpreted. Whether a
spouse who has capacity of earning but chooses to remain
idle, should be permitted to saddle other spouse with his CRL.REV.P. 344/2011 Page 6 of 8
or her expenditure? Whether such spouse should be
permitted to get pendent lite alimony at higher rate from
other spouse in such condition? According to me, Section
24 has been enacted for the purpose of providing a
monetary assistance to such spouse who is incapable of
supporting himself or herself inspite of sincere efforts
made by him or herself. A spouse who is well qualified to
get the service immediately with less efforts is not
expected to remain idle to squeeze out, to milk out the
other spouse by relieving him of his or her own purse by a
cut in the nature of pendent lite alimony. The law does not
expect the increasing number of such idle persons who by
remaining in the arena of legal battles, try to squeeze out
the adversary by implementing the provisions of law
suitable to their purpose. In the present case Mamta
Jaiswal is a well qualified woman possessing qualification
like M.Sc. M.C M.Ed. Till 1994 she was serving in
Gulamnabi Azad Education College. It impliedly means
that she was possessing sufficient experience. How such
a lady can remain without service? It really put a big
question which is to be answered by Mamta Jaiswal with
sufficient cogent and believable evidence by proving that
in spite of sufficient efforts made by her, she was not able
to get service and, therefore, she is unable to support
herself. A lady who is fighting matrimonial petition filed for
divorce, cannot be permitted to sit idle and to put her
burden on the husband for demanding pendente lite
alimony from him during pendency of such matrimonial
petition. Section 24 is not meant for creating an army of
such idle persons who would be sitting idle waiting for a
„dole? to be awarded by her husband who has got a
grievance against her and who has gone to the Court for
seeking a relief against her. The case may be vice versa
also. If a husband well qualified, sufficient enough to earn,
sit idle and puts his burden on the wife and waits for a
?dole? to be awarded by remaining entangled in litigation.
That is also not permissible. The law does not help
indolents as well idles so also does not want an army of
self made lazy idles. Everyone has to earn for the purpose
of maintenance of himself or herself, at least, has to make
sincere efforts in that direction. If this criteria is not
applied, if this attitude is not adopted, there would be a CRL.REV.P. 344/2011 Page 7 of 8
tendency growing amongst such litigants to prolong such
litigation and to milk out the adversary who happens to be
a spouse, once dear but far away after an emerging of
litigation. If such army is permitted to remain in existence,
there would be no sincere efforts of amicable settlements
because the lazy spouse would be very happy to fight and
frustrate the efforts of amicable settlement because he
would be reaping the money in the nature of pendent lite
alimony, and would prefer to be happy in remaining idle
and not bothering himself or herself for any activity to
support and maintain himself or herself. That cannot be
treated to be aim, goal of Section 24. It is indirectly
against healthiness of the society. It has enacted for
needy persons who in spite of sincere efforts and
sufficient effort are unable to support and maintain
themselves and are required to fight out the litigation
jeopardizing their hard earned income by toiling working
hours.
In the present case, wife Mamta Jaiswal, has been
awarded Rs.800/- per month as pendent lite alimony and
has been awarded the relief of being reimbursed from
husband whenever she makes up a trip to Indore from
Pusad, Distt. Yeotmal for attending Matrimonial Court for
date of hearing. She is well qualified woman once upon
time obviously serving as lecturer in Education College.
How she can be equated with a gullible woman of village?
Needless to point out that a woman who is educated
herself with Master?s degree in Science, Masters Degree in
Education, would not feel herself alone in travelling from
Pusad to Indore, when at least a bus service is available as
mode of transport. The submission made on behalf of
Mamta, the wife, is not palatable and digestible. This
smells of oblique intention of putting extra financial
burden on the husband. Such attempts are to be
discouraged.”
9. Section 20 (1) (d) of PWDV Act, 2005 specifies that upon
appropriate proof, the court may order the respondent to pay
maintenance to the aggrieved person and to her children and CRL.REV.P. 344/2011 Page 8 of 8
further permits the Court to pass an order of maintenance
under the PWDVA in addition to maintenance already granted
under section 125 Cr.P.C.
10. In State of Maharashtra vs. Sujay Mangesh
Poyarekar (2008) 9 SCC 475 it was held that powers of the
revisional courts are very limited and the revisional court
should not interfere unless there is a jurisdictional error or an
error of law is noticed.
11. The learned ASJ in the impugned order has rightly
observed that the question whether the petitioner-wife was
forced to resign or had resigned herself is a question to be
considered during trial and also the question whether the
reasons given by her for resigning from her job were
satisfactory or not.
12. It is worth mentioning here that the child for which
maintenance of Rs.10,000/- per month from the date of filing of
the petition has been ordered by Learned Addl. Sessions Judge
is just and fair and sufficient to meet the requirements of a
child which is aged about 3 ½ years.
13. There is no jurisdictional error or error in law in the
impugned order. The petition being devoid of merit is hereby
dismissed with no order as to costs.
(PRATIBHA RANI)
JUDGE
MAY 14, 2012/„dc?
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
1. You can not file a divorce suit before completion of one year of marriage,

2. You shall have to contest the complaint/cases filed by her fittingly,

3. First of all apply for and avail AB against the FIR already registered in your name,

4. Strongly object to her maintenance application since she is very well educated and is capable of earning hence not entitled to any maintenance from her husband,

5. File  the divorce suit after completion of one year of marriage on the ground of cruelty.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1. The filing of 498A and DV complaint against you does not preclude you from filing for divorce. As and when you file a petition for dissolution of marriage it will be adjudicated on merits notwithstanding the pendency of the criminal complaints against you. However, to file for divorce you have to wait unless a year has expired.

2. If the marriage has not been consummated then you may apply for annulment of marriage.

3. A wife who is well qualified and can work and earn does not qualify to get maintenance.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
Wait till completion of one year of marriage then file divorce case and fight the cases on merit with the help of lawyer if you are unable to fight your self.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
Divorce petition can be filled only after one year from marriage. You have to wait for three months filing divorce case. If you are able to get any documentary prove with regard to income and working of your wife than yo need to pay maintenance. Generally in dowry and DV cases husband and his all the family members will roped with general and formal allegation, so you have to defend the cases and there are lot of chances winning cases by you     
Lakshmi Kanth
Advocate, Hyderabad
223 Answers
2 Consultations
4.8 on 5.0

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