How to get a divorce if my wife is not ready
Gora Chatterjee
(Querist) 12 October 2014
This query is : Resolved
I got married 8 years ago on Nov'2006. It was a love marriage which was good for initial 2 years however after that gradually changes its colour to grey as My wife was completely incapable of adjusting herself in our family. Everyday there was a fight between my wife and my mother for which I had to listen the music from my wife everyday after retuning home. She wanted to be the dictator of the family which my mother did not accept however my mother never complained about her. She used to complaint about my mother's culture , thought, our family condition etc and wanted me to fight with my parents.Though I always supported her thinking that I have taken her responsibility and she has come to this family for me only , she never understood the mental agony I am going through. Many times she called me at my office times to threaten me that she is leaving the house. In such a situation to manage the heat , we took a baby who is now 4 years old. however even after taking the baby she did not change herself and finally I got separated from my parents on Mar'2013 to continue my married life.
Even in the new life, she had several issues and throughout the tenure of our married life she was fully engaged with her maternal house. She also insisted me to take the rental house near to her maternal house and admitted our daughter in a nearby school. Her family used to know each and every fight which we had in our life.
On june2013 , I suddenly discovered an ex-marital affair of my wife which as per the evidence was continuing atleast for last 1 year. After seeing the evidence I decide not to continue with this relationship and mental agony.
After this incident I have also come close to one of my old friend who has helped me a lot to recover from this situation and we both have decided to start our life in a new way.
I am now living separate from my wife since May'14 and my wife is staying at her maternal house with my daughter. She is not even allowing my daughter to me or my parents for last 3 - 4 months. I have requested her many times for mutual divorce as I don't want to spoil my life as well as her life and want to start in a new way however she is extremely adamant and not ready to give divorce. Every month I am sending money for my child. Also the rented flat is vacant now however I am still paying the rent as she is not ready to take the furniture back to her residence. My Question is
1) How can I send back the furniture to her and stop paying the rent?
2) I am thinking of filing a divorce case now. What if she doesn't agree for the divorce.
3) Can I apply for a visitation right to see my daughter at a specific interval and if possible how can I get the child custody for my daughter?
4) How much time it can take to get the divorce?
5) Pls suggest a good lawyer at KOLKATA who can handle the case efficiently.
Thanks & Regards
Gora Chatterjee
Dr J C Vashista
(Expert) 13 October 2014
Q 1. Not a legal qquery, it is your common sense, take it your home (parents).
Q2. Decide fast, no expert shall be able to guide. If she do not agree file the divorce petition on other grounds.
Q3. Apply to the court u/s 12 of The Guardians & Wards Act for custody/ visitation through your local lawyer,it shall be allowed.
Q4. It dependa upon various factors e.g., court dairy/pendency, availablility of judge/counsels,holidays/ strike/ elections or other unforeseen eventuality for delay, however, may take about 2--3- years.
Q5. Mr. Devajoti Barman, Advocate, an expert on the subject may be consulted and engaged, his contacts are available on this site itself.
ajay sethi
(Expert) 13 October 2014
contact Mr barman from LCI .
Rajendra K Goyal
(Expert) 13 October 2014
You have responsibility of one minor daughter, your divorce may ruin her life. Use social pressure for amicable settlement. If no amicable solution possible you may file divorce.
1. Inform her through registered letter that the furniture (mention detailed item wise) is stored separately and premises has been vacated. She can receive the furniture.
2. You may, Contested divorce may take 4-5 or more years.
3. You may pray for child custody, generally it is given to mother, visitation rights would be provided.
4. Contested divorce may take 4-5 or more years.
5. Act upon the suggestion from expert Vashishta ji or search LCI database.
Gora Chatterjee
(Querist) 13 October 2014
Heartiest thanks to all experts for their valuable suggestions.
ajay sethi
(Expert) 13 October 2014
thanks for your appreciation
K.K.Ganguly
(Expert) 13 October 2014
1. First of all take extreme care to ensure that your wife does not come to know about your relationship with your new friend,
2. If she comes to know about it then she may file adultery charge on you damaging the prospects of all your future cases,
3. Collect irrefutable evidence about her extramarital relationship,
4. File a complaint of adultery against the said friend of your wife,
5. Then file a Divorce Suit against your wife on the ground of cruelty which includes her extra-marital relationship,
6. Also file a child custody case and an application praying for child visitation right,
7. Your divorce case is expected to run for at least 3/5 years but somewhere you shall have to start. After sometime propose mutual consent divorce to your wife with reasonable compensation which wives accept normally at this stage.
Gora Chatterjee
(Querist) 14 October 2014
Dear Mr. Ganguly, My wife is already aware of the new relationship of mine as I have not hidden anything from her before concluding the relationship however she is in a mode like "I am not bothered where you are and doing what. let me live in my way however end of the day I will not give you the divorce nor I will allow your daughter to meet you." Till date neither she has filed adultery against me nor 498A however I believe the life cannot run like this so I wanted to file a divorce case against her on the ground of cruelty. Pls advice on the same.
As an evidence , I have a whatsapp msg conversation between my wife and the friend of her. Can that be used as an evidence during the divorce process.
Also can you pls let me know what possible steps my wife can take if I file a divorce case against her?
Also can you pls suggest whether I can do a live together with my friend while running the divorce case against my wife? What can be the consequences?
K.K.Ganguly
(Expert) 14 October 2014
1. Let her be aware but she shou;ld not have any evidence of your having the said relationship,
2. Whataapp message is a valid evidence provided the message clearly says that she is having ex-tramarital relationship leading to physical relationship. Simple statement showing liking for each other is not an evidence of ex-tramarital relationship,
3. So, for filing divorce application, you shall have to collect evidence of her act of cruelty and also her admission of extramarital physical relationship (if there is no other evidence) in the form of audio/video recording,
4. After filing the said divorce application, she is expected to lodge a police complaint u/s498A of I.P.C. against you for which you should have enough evidence to counter her charges. You should also lodge a police complaint against her cruelty. However, lodging police complaint by wife after receiving copy of divorce petition is treated as retaliatory measure by the Court & dilutes such complaint. Moreover, as per recent Apex Court order, there will be no initial arrest by police without proper investigation against complaint filed u/s498A of I.P.C., Hence, no worry on that account,
5. She can also file complaint as per DV Act which can be countered by you,
6. She can file petition for maintenance for herself, if she is not employed & for her kid,
7. She can also file a petition for residential accomodation (Mostlikely she will not do that since you have already provided her rented accomodation),
8. After filing the divorce petition, you should despatch her articles to her address to avoid future complaint u/s406 of IPC. If she refuses to accept the said articles, let the transporter return the consignment to you. Keep the documents for this transportation like Bill, Challan, godown charrge etc.,
9. Should have a complete litigation planning before venturing in to filing of cases.
Gora Chatterjee
(Querist) 14 October 2014
Thanks a lot sir for your kind suggestions.
T. Kalaiselvan, Advocate
(Expert) 18 October 2014
I fully endorse the experts views on the subject query. In short, if you are unable to continue the married life with her, you may file a divorce suit n the grounds of cruelty, desertion and non cohabitation, however the last two requires at least two years period but cruelty can be a strong ground, whatsapp messages mey not hold good for adultery reasons, but you may include them in your pleadings, consult and discuss at length with a local advocate and proceed as per his advise.
