tired and exhausted (Production Manager) 26 September 2014

How to get divorce

Hi All, would like to start with thanking everyone who helped me when I posted last time on this forum.

Well nothing much has changed since I last posted my query of divorcing my wife.

Well I was looking to file a case in court, at the same time my sister in law met my parents and my brother and sister in law (in Bangalore)and spoke really nicely and said since we are having major compatible issue its better that we get separated legally(Mutual consent divorce) anyways we are not together over a year now.. but they kept insisting that we would want me to come to their house and meet them before going for divorce.. my brother said that I’m busy with my work so won’t be able to meet but will make sure that he calls you and speaks to you or we all can go to Delhi (where I stay with my parents) and meet him for which they opposed and said that when he can come to marry to Blore he can very well come for divorce.. for which my parents said that he will definitely come when they have to appear in the court in the meantime he will call and speak. As instructed by my family I called promptly the next day and even before I could say hello followed by my sister in laws name she started off by threatening me that do whatever you want I will see you etc etc.. I had to hang the phone and she called my brother immediately and spoken to him in a very rude manner and said let your brother do whatever he wants we will see… When my brother asked them what are you indicting at? Are you intimidating us?? Are you threatening us?? Are you challenging us?? To that she answered you do what you want and we shall reply.. and at that time we will see if we have to retaliate or reply and kept the phone..

Lots of things have transpired in last 1 year since we have started living separately including her attempt of extra marital relation with her ex boy friend.. I have all the mails exchanged between them and her boy friend who is married with 2 kids and settled abroad has written only and only how s*xual they can get when he comes down to India to meet her… and to my luck my wife approved of it.. When I confronted her and she said sorry and confessed to me that yes she did write mails and lead that person.. luckily I have this in writing in (WhatApp).. now she is denying that she has written any mails and at sometime she says I have written those mails.. I have made a mistake and not committed anything wrong.. Also she has abused me and my friends of drugging her, she has told her family that I have tortured her mentally and have hit her etc. ( I did slap her once when she used abusive language in front of my parents) and she slapped me back in fact on several occasion she has hit me.. but other than this her claim to hit or drugged her is absolutely false and all this came about 2 months back… before this she never said anything of this sorts.. now my family specially my parents are scared that she or her sisters who have repeatedly abused me verbally and threatened will put a false case against me… her elder sister have said she will make sure that she will make me run in court for 10yrs. Both her sister intervene a lot and use absolutely abusive language which I don’t use it with my friends. Unfortunately she lost her parents at a very young age and their family took the 3 sisters and bought them up and now the same family people have washed their hands out of it…

Now experts need your guidance what should be the plan of action now from our side?? What kind of challenges and implications should I look at when I m filing a divorce case?? She says that she wont come back to stay with me (which I don’t want anyways) nether she will divorce me..

Need help to close this matter as ambicably as possible.. We certainly dont want any legal implication on her as well as on us.. Please suggest/ advice

PS: to all the moral policing people sorry we cant get back as we are not compatible and I cant accept her back in life after she tried to have a illicit relation. And also after this incidence have gone twice once with my parents to sort out the matter and get her back home but all was in a vain... And the incidence is so fresh in my mind and it was very traumatic for me... though i have not disclosed the same yet with my family members... also dont want to question her character and will use this as last resort in the court of law..

Thanks in Advance..

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4 Replies

Tajobsindia (Senior Partner ) 26 September 2014

Originally posted by : tired and exhausted
	XXXX Need help to close this matter as ambicably as possible.. We certainly dont want any legal implication on her as well as on us.. Please suggest/ advice XXXX

@ Author,

1. Further detailed amicable suggestions cannot be given to your brief based on above highlighted quote of yours!
Reasoning: You have option to file divorce only on ground of 'mental cruelty', the moment you exercise such option she ought to retaliate either/and with transfer of suit matter (it is obvious you will not go to BLR to file suit instead will use DEL as jurisdiction?) a maintenance case (if she is not earning) using DV Act or S. 125 CrPC as well as S. 24 HMA, or simply HAMA, she may file Criminal Complaint in jurisdiction police station etc. So for every action, there is an equal and opposite reaction, hence making a statement as highlighted in your brief is obstructing giving social or legal advice.

tired and exhausted (Production Manager) 26 September 2014

@ Tajobsindia,

Thanks for your revert.

I know for sure it will not end ambicably.. If i say lets get in to the battle field as that's the only option i see.. what would you suggest Sir?? how do i safe guard knowing that every action will have equal and opposite reaction and yes i will have to file the case from Blore as we got married in Blore.. If i put a case before she does... will i have any upper hand?? I did consult a lawyer sometime back and he said i will have slight advantage as what ever they do post i file the case it will be treated as their reaction and retaliation.. Please let me know what should be the plan of action??

Thanks

Tajobsindia (Senior Partner ) 26 September 2014

@ Author,

1. The safest option you have is to pray for ‘judicial separation’ under S. 10 HMA. You have to mention 'one ground' out of the nine available for seeking ‘judicial separation’ and I would suggest it is under ‘cruelty’ ground that you use. Directly do not mention ‘adultery’ but do cleverly hint instances of ‘her vulnerability’ by way of using petition writing skills ‘adultery’ can be alleged indirectly too. 'Slapping, hitting' can be proved (proof affidavit followed by Examination of your side’s witnesses), Email exchange can also be proved using strict Rules of Indian Evidence Act and ‘your sides efforts to resolve separation of 1 year before filing this suit matter’ can also be proved by Watssup, SMS, phone records etc. It has been held that unless a case for ‘divorce’ is made out, the question of granting ‘judicial separation’ does not arise. Therefore, the Courts while dealing with the applications for ‘judicial separation’ bear in mind the ‘specific grounds’ raised for grant of relief claimed and insist on ‘strict proof’ to establish those grounds and shall not grant some relief or the other as a matter of course.

2. S. 10 HMA does not provide any time as to how long ‘judicial separation’ can last. But S. 13 HMA provides that if there is no resumption of co-habitation between the parties “one year” after the decree for ‘judicial separation’ is passed, the parties can get a decree for divorce on this ground itself. But divorce on this ground (cruelty which was used to seek judicial separation) will be given only when one year has expired after the passing of the decree for ‘judicial separation’ and not earlier.

3. Using straight away filing a ‘Divorce’ suit will make the other side straight away retaliate is my view. because lady's side do not like often to hear the so called dirty word 'divorce'. Whereas if one files ‘judicial separation’ both sides of family assumes that ‘there is something going on between spouses for which they need time to re-think and/or neither side is leading clear answer to what or who should lead in filing for end of matrimony’ and the moment husband files for ‘judicial separation’ his petition should have been excellently drafted so that he can use it as future grounds for seeking ‘divorce’ yet gives currently to all an impression that husband is trying to seek ‘time’ and many a times wife’s side in your instance of briefs have fallen for and delayed immediate retaliation provided that even before counseling sessions keeping straight face you speak that ‘give time to parties’ and prior to and post filing for ‘judicial separation’ your sides action should always be of neutral nature and not act as provocative for her side to retaliate.

4. Even if you file judicial separation she may still file maintenance. But if your suit matter is cleverly drafted then she may file for maintenance only under HMA and not under DV Act is my view based on your brief.

5. Weigh above usage with your local advocate in Delhi provided he can draft a clever ‘judicial separation’ petition which can be used for seeking in future divorce as well as can also be used currently to showcause her reactions – after thoughts - retaliation etc. to your such 'first move'. However, by any usage of law as first mover you still cannot prevent her not to ‘file’ a case against you other than if you vanish to Himalayas for next 7 years with no contact to your own world then the matter can be looked into in different eye. In my opinion this option is also good as now-a-days lot of volunteer options have opened up in various Himalayan States which are high paying one as well as Social Responsible satisfying to once career option when one is trapped into such bad marriage with catch 21 situation.

[Last reply]

tired and exhausted (Production Manager) 03 October 2014

Dear Tajobsindia,

Thanks for your advice.. will be meeting my lawyer on coming monday will discuss what you have suggested and take his opinion as well.. Any other advice is most welcome...

I have decided i need to get this divorce... or else i will take your vanishing to himalayas seriously...

Thanks once again...