1. In my opinion living in USA is not considered as DV ! People go for Jobs or relocations or as visitors too. here it looks he was on some Job there?
2. Regarding maintenance payment not done by him till date as inference you are stating to us, my opinion is that if you donot file Execution of the same then it is obvious you will not get it within its limitation period and had earlier plans to re-unite hence no Execution filed so no point mentioning it as inference here in your brief. Clarity of thoughts as query should be there not creating adverse confusion in minds of above repliers should be avoided.
3. The knowledge of you working is also one fo the grounds for denial for maintenance to you but your child is eligible but then bar of para 2 comes into picture.
4. He now filing for separation in a different Jurisdiction can be allowed if his Jurisdiction issues in that court is cleared . See if persons earlier divorce petition gets dismissed then the reason has to be stated here in this brief of yours for worthwhile replies otherwise guess work as reply cometh; there may be several reasons of dismissal such as non-appearance of party, non-payment of maintenance or Jurisdiction issue or on merit. None of these got mentioned in your above brief so guess work is call of the day.
5. Having mistress is not as per Law allowed. It could construe mental cruelty to you under Divorce HMA laws as well as under DV Act as well as under extreme S. 498a IPC institution of complaint case. But since you want to live with him then no point attracting DV Act on mental cruelties of having mistress as cause of action. Otherwise also if mistress is in sharing space with your separated husband in shared household and can be proved then she can be made party to DV Complaint case otherwise mere knowledge of some mistress is no ground to array her as respondent R2 in a DV Complaint and is bound to be discharged.
6. Lastly after 5 years of living apart and having no residence in shared household as rights allowed till date by usage of Law which is neither at In-Laws place where last you two together resided before he went to USA and or at his current residence where he is staying after coming back from States as at both places you were refused residence by social obstructions it is logically that this marriage is dead for all practical purposes hence the best amicable solution as next step between parties is to opt for MCD and end such dead marriages and re-start life.
As far as child being fatherless thoughts coming up, now a days fatherless child is no more “dirty word” and society is accepting dead marriages couples fatherless child as part of evolving society.
Either spend years in waiting for situation to change or force change via instituted Court cases with an unwilling spouse or end all these traumatic continuous social experiences with MCD and remain as friends for the sake of child so that basic visitation the child has and child knows who is h/er father atleast this much in my view he will agree to.
Even if for suggestion sake in reference to context say I suggest to file RCR (S. 9 HMA) then Law cannot force you two to live together. If I suggest instituting DV act for shared residence i.e. right to residence then at In laws place if property registered in their name then you cannot be allowed to live there, now if present place where husband is living is given under protection order then he will immediately shift to another place and pay the rent, so DV act still cannot unite you two under same roof. Now even if you array his mistress under say Bigamy or DV Act mental cruelties complaint matter then having living together is constructed as grounds for DV not mere knowledge of a mistress and this mistress can easily wriggle out of the arrayed scene under DV Act and even if I go further and say under DV act Magistrate Court can add S. 498a IPC section which is true as his power then also “strict proof” of mistress is required and even end this argument sake I say if he is penalized then also your purpose of living together is not solved. So sum total what good DV Act will come handy now think think think ! So what we have in hand very limited end option i.e. MCD nothing else is my bottom view. Rest you are empowered you may have your own chosen path to tread on.
Basically see, when duality crepes in , it becomes difficult to guide a client litigant and it is best if above paras are re-read and made a self call accordingly as no law of the land can force unite two un-willing spouses.
