Dear Sir, I had married a girl in may 2015. Its 2nd marriage for both. The marriage is not consummated & after consulting the dr & the Dr. written as NON CONSUMMATION & VEGINUSMUS in her prescription. She was operated on the same (veginusmus) with fibroid - Myomectomy in Dec'15. From then 3 months rest at her mother house. Even after the op'n there was no change and the marriage was not consummated. In april'16 the Dr. said she can't go for normal pregnancy coz of both tubes were blocked. In May'16 the IVF was also failed. I decided for divorce & girls parents blackmail, if i dont stay with her they will file 498A against my parents and sister. From Jul' 16 I was separated & seeking for Divorce. They agreed first and now in Nov'16 they filed 498A against me & my family. I have all the original documents. What shall I do next pls sug. Q1. Can I go for 498A quashing? Q2. Can I File nullity in family court? Q3. What shall I do now, as she has filed Divorce petition and asked for Maintenance?
What they may challenge and how to counter it
1) apply for and obtain AB from sessions court
2) wait for filing of charge sheet
3) then based on legal advice file for quashing
4) file for divorce on grounds of mental cruelty
5) refusal to have sex amounts to mental cruelty
6) both divorce petition would be clubbed together
1. Since 498A is purely an afterthought and done after filing of divorce suit, there is good merit in quashing. However file the same only after submission of charge sheet.
2. Yes if her medical complications were kept hidden from you.
3. Contest the case on merits. If she Iis unemployed you can't avoid maintenance.
She had told in her 498A complaint that they have bank deposit of about 35 laksh in her name and own a house in her name. So still the maintenance is applicable?
Wife can easily maintain herself out of interest earned on the fixed deposit
2) you have not mentioned what is your income , whether wife is working or not
3) if there is wide disparity in your incomes court would award her some maintenance
Maintenance can not be dismissed merely because FDR is fixed.
However it is valid point to raise and you can rightly take this issue.
you cannot file a petition for nullity of marriage because the limitation period has lapsed. you can not file a divorce petition on the ground that she is sterilized due to suffering from a disease. you can take divorce if she is unable to having sex with you, however your marriage is not consumated it is not a ground for divorce. this is also not a venereal disease so divorce on the ground of disease is not available.
you can quash the fir [498 A] of the ground that it is false and frivolous because no such cruelty has committed, if you successfully establish this fact and case is dismissed then you can file a petition for divorce on the ground of filing of false case and committing cruelty against you.
in K. Srinivas Rao vs D.A. Deepa, the supreme court has decided that filing of false case is an act of cruelty against husband.
1. Quashing is an exceptional remedy which works in very exceptional cases. Although many petitions for FIR quashing are filed every day it is in very few cases that the HC quashes the FIR. So without a threadbare perusal of the FIR in question it is not possible to state whether your case is fit to apply for quashing. Consult a lawyer with a copy of FIR.
2. If 498A has been filed then firstly apply for and obtain anticipatory bail.
3. You are free to file for annulment of the marriage as it has not been consummated due to the impotency of the spouse,
4. You can contest the divorce petition and maintenance case on merits.
5. Having a bank deposit does not take away the right of the wife to be maintained by her husband if she is not earning.
In498A case the take anticipatory bail and contest the case. It is not advisable to quash the case now. The Supreme Court has recently ruled that the High Courts can quash an FIR against a person if it did not prima facie disclose any offence. if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed", the bench said. Where the allegations in the FIR or the complaint or the accompanying documents taken at their face value, do not constitute the offence alleged, the person proceeded against in such a frivolous criminal litigation has to be saved.
A Hindu male is legally obligated to maintain his spouse. Maintenance includes provision for food, residence, clothing, education and medical attendance and treatment.Maintenance is not merely a legal right. It is part and parcel of basic human right. For weaker sections, it is a problem in the sense that their very survival rest on the maintenance. The object behind the provision is two-fold: firstly, to prevent vagrancy resulting from stained relation between the husband and wife, and secondly, to ensure that the indigent litigating spouse is not handicapped in defending or prosecuting the case due to want of money.There are various factors that come for the consideration of the court while determining alimony. Section 24 of the Hindu Marriage Act empowers the Court to award maintenance pendente lite and litigation expenses to a party who has no independent income sufficient for his/her support in proceedings pending under the Hindu Marriage Act, 1955, having regard to the income of the parties. The Proviso to Section 24 provides that application under Section 24 shall be disposed of within 60 days of the date of service of notice on the opposite party.A wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband
