• Divorce procedure

Hi

1. Marriage Date : Dec' 2007
2. Never Consummated
3. Mostly wife preferred to live away 
    I am not sure where she lives when she claims to be living with her parents. She at times stays away from me for more than 10 months in a year.
4. Have not seen her in 2+ yrs. She claims to be living with her parents in Mhow.
5. I have clue about she searching for job in Pune
6. I live in Bangalore
7. Their alimony demand for mutual consent ranges from 32 - 50 lacs over last 3 years

What should be my next step and how should I proceed?

I won't go for IPC 9 for sure

Earlier I asked question on this forum 
https://www.kaanoon.com/15855/can-husband-file-for-annulment-on-grounds-of-non-consummation
Asked 1 month ago in Family Law from Bangalore, Karnataka
Religion: Sikh
1) file for divorce on grounds of mental cruelty 

2) refusal to consummate marriage amounts to mental cruelty 

3) refuse to pay Rs 30 lakhs demanded by wife 
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
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What is IPC 9? May be you meant RCR 9. Be that as it may, you are at liberty to apply for dissolution of marriage on the ground of desertion as your spouse has been staying apart from you for more than 2 years, but be prepared to be hit back with criminal complaints of dowry harassment and domestic violence.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
Hello,
1) Although your marriage was not consummated your option to nullify the marriage is lost due to limitation. However you have other valid grounds to file for divorce.

2) As you don't wish to file for RCR under sec. 9 of Hindu Marriage Act, you must proceed with filing for divorce unilaterally. You have no reason to accede to the demand of an exorbitant amount to settle for a mutual consent petition.

3) You must file for divorce on grounds of mental cruelty and desertion and get the summons sent to her parental home address as that is the last known residence.

4) The matter of possible monetary settlement can be discussed once she appears in court in support of the court summons.

S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
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Immediately file a divorce case against her before family court based on cruelty and desertion under section 13(1)(ia)&(ib) of Hindu Marriage Act.

If she is unable to maintain herself then you have to pay maintenance to her but if you proved before the court that there is no sufficient reason to left your company and she left you without any reason and live with her parents her own then the court may reject her petition for seeking maintenance.

Feel free to call
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
File for divorce in city wherein wife is residing 

2) after filing of FIR by wife in 498A case apply for AB 

3) if you have dependent parents or wife is working it would be considered by court in determining maintenance 
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
5.0 on 5.0
1. Fight the transfer petition before HC or SC as the case may be, with the help of lawyer and try to stop her.

2. Dasti Summon can be taken from the court, or publication is also a mode of summoning.

3. when you apprehended that you will be arrest by police then.'

4. try to prove her able body and able to maintain herself or try to prove that she is her own left your company without any sufficient reason.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
1. The only way to stop it is to contest her transfer petition.
2. The court will proceed ex parte if summons is not accepted.
3. Once the FIR is filed you may apply for it where the FIR is lodged.
4. Her earning capacity, actual earnings and if you can prove her cruelty then you may escape with no or little maintenance.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
Your case is a good case for divorce if you prefer to file one.

You can file divorce case on the grounds of mental cruelty for non-consummation of marriage and also desertion  as she has left your company for more than two years on date and also for periods intermittent.

Do not pay her alimony even if she is coming down for mutual consent divorce because the entire problem is with her hence she is not eligible for the same especially if she has voluntarily abandoned the matrimonial for her own reasons, then she cannot claim alimony, that is law.

Further filing a petition under section 9 HMA would prove futile, loss of time, money and energy spent on it. 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
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Have further queries
1. If I file the case I know she will try to get it transferred to their jurisdiction. Is there a way to stop the transfer?

Do not come up with such doubts even before the case is filed, if she is trying or transfer of the case then she has to aproach supreme court only, you can challenge her transfer petition through your lawyer properly at supreme court too.


2. What will be the way forward if the summons is not accepted?

There are procedure to serve the summons through  substitute service, which if necessary can be adopted. 



3. When can I apply for anticipatory bail and where?

You can apply for anticipatory bail only when she lodges a criminal complaint with the police who have registered a FIR on that. It shall be within the jurisdiction of the police station



4. What factors will help to reduce the maintenance u/s 125

The maintenance case has to be challenged properly repudiating her claim based on the facts of the case and you may also show a depleted figure of your income to show that you do not earn income to the extent of her claim.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
@Mr.Kalaiselvan : My in-laws and wife and her extended family are into business of marriage. They know that they will have to go to supreme court to get the case transferred and actually want me to file the case. They are already fighting a case with husband of my wife's elder sister and have been demanding alimony of 50 lacs to withdraw the case and give divorce.

It is interesting to note that your in laws are into business of marriage, there is another name for it in the plain language which I do not want to mention here considering the decency of the forum.
Do not ever think that they will continuously fight with their sons in law through court cases, they cannot succeed in their false cases and they would be realising it soon. 








How easy is it to bundle the cases against husband and his family?

The law is such that a woman can lodge a criminal complaint against her husband and his close relatives on some false contents too, fr which at preliminary stage, nobody will listen to the pleas of innocent husband, however they can be challenged properly during trial proceedings. 






Last month while negotiating the money my wife was talking about filing 307, 377 etc along with 498A.

This is how they will react if you do not budge to their pressure.  Ask her to proceed, you can obtain AB and challenge her in the trial of the case where she will certainly tumble becasue she knows that it is false case hence she may not be able to defend her own case. 





How will I get to know about the cases and time between arrest and filing the AB?

You should get a clue about arrest sooner you get a call from police to attend the inquiry based on her complaint, hence you should file application seeking AB immediately before attending police station.  This will protect you from being arrested. 





Can I also file anything against them? Or, is it all one sided?

What can you file agaisnt them without any base or ground, you have to wait and watch the development or you can proceed with the divorce case agaisnt her. 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
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once FIR is filed you would be issued notice by police 

2) obtain copy of FIR and apply for AB 

3) 498A cases take 10 years to be disposed of . they would settle after you obtain AB and there is no end to legal battle in sight 

4) dont bow down to blackmail tactics
Ajay Sethi
Advocate, Mumbai
23195 Answers
1218 Consultations
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1. It is very easy to file the cases but an uphill task to prove it,

2. Engage a lawyer within the jurisdiction of your wife's residence. Lawyers are well connected locally and are able to find out when the FIR gets registered. Then alone you will be able to apply for AB well in time.

3. You may sue her for damages once you are held not guilty by the court.

Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0

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