Rajasankar V (-) 19 April 2014

What is conditions for getting divorce using cruelty plea?

Hi All,

I have filed for divorce from wife on 08.03.2013 . My case follows,

1. We married on 25-Fed-2010. Baring minimal verbal spats everything went fine until she conceived. She went to her parental home on Sept 2011, where her parents hasn't allowed me to see her. Her maternal uncle came my sisters house and had a verbal argument about my salary not given to his niece.

2. When the baby born I went see the baby girl. Her parents asked the hospital management for security to prevent me from kidnapping the baby. I am not allowed to touch the baby just to see the baby from distance. Date of birth of the baby is 19-Mar-2012

3. After returning from hospital, she went to her parental home, after much efforts agreed to come to my house in Chennai. After coming to Chennai, with in two days she put a show and called her parents to take her home. She went to her home on 12-Feb-2013.

4. On 26-Feb-2013 she filed an police complaint against me to getting her jewels, money etc. I went to station and after long discussions I gave her jewels and money that her father spent on house hold things such a cot etc. Then she removed the magalsutra /thalli and sacred yellow thread gave it to me. Both signed on the receipt of the things got in the police station.

5. She havent allowed me to see the child. She named the child without my knowledge. I know the child name via the court filings.

6. I filed for divorce on 08-Mar-2013. Case came for inquiry on 21-Mar-2014. I submitted the evidences for this. She filed a counter reply stating the she now wants to live with me and all things I said is false. She even claims that, in women police station, I forced her to remove the mangalsutra.

In the mean time, I lost my job, now not working. Now, she filed for an I.A. on 31.03.2013 for interim maintenance of 12.5k for her and 12.5k for child plus 20k for fees. Case is posted on 10-June-2014. I know that she is working an temporary job as a school teacher in a private school.

My queries,

1. Is her behaviour would be a case for divorce under crulety? I ask this because my lawyer is keep telling me the court will show maximum lencicy to the women so even her removal of mangalsutra and not showing the child to me wont amount to cruelty. So I wont get an divorce even Judge can ask me go and live with her. With a hearing in two months, I think this may take long time.

2. Can I go for District court/High court to speed up the case? Her main aim to neither agree for divorce nor come and live with me. So what would be best option to get a this over quickly? I know divorce cases would drag for years but here I think there is a clear cut case of living separately for more then 3 years.

3. What would be best way to counter the IA maintenance case? I am not working currently and have no moveable or immovable property in my name.

Thanks for your answers.

Rajasankar

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6 Replies

Samir N (General Queries) (Business) 20 April 2014

The solution to your problem lies in this statement: "She filed a counter reply stating the she now wants to live with me."

Read on...

Your advocate is right in saying that you will NOT get divorce based upon cruelty. She will have her own version and as you have a child and she is willing to come back to you, there is no way you will be able to claim cruelty and get divorce from her on grounds of cruelty. In general, cruelty as a ground for divorce initiated by husband is rarely granted. Exceptional cases could be false cases filed by you or your parents which resulted in imprisonment or some such extreme cases where evidence is right there... falsified claims resulting in imprisonment. In your case, it is your word against her. She can claim that you suggested the name of your girl and that she repeatedly begged you to take her and the child back but you refused... Get it?

What I suggest is that you take a practical approach giving highest priority to the interest of the baby. Consent to her willingness to come and stay with you. In fact, file a RCR or some such application yourself in response to her reply stating that she is willing to come and stay with you. Just check. May be her intents are genuine. Get a Court Order to that effect that you are and always were wiling to let her stay with you.

If she does NOT decide to come and stay with you, then and only then, you file a new petition, this time seeking divorce based upon desertion by her. It will be easy for you to get it because you will be able to prove that indeed she has deserted you. Mere separation for more than two years does not suffice to seek divorce based upon desertion. For example, she can claim that you made it impossible to stay with you. Her willingness to come back to stay with you now will blunt and condone forever any defenses/allegations by her or you in the future on the basis of cruelty. That is the key to getting divorce based upon desertion by you in the future. If she had bad intentions and is crooked, she can come for one month and then leave again... that could upset your strategy because desertion period has to be continuous. But you can argue that she came precisely for that... to blunt your desertion argument. I am not too sure if that argument will fly... it gets complicated. Visit that scenario when it comes to that.

So.. to conclude... allow her through a Court Order to come back and stay with you. If she comes, do compromise on a few things in the interest of your child, and forget about divorce and the past. Try your best to work things out when you are together with her. If not, well, you know it was a trick by her but the trick would have turned against her. Your desertion argument will become solid. File a fresh petition for divorce based upon desertion. If you refuse in Court to let her come back, it would be a legal blunder and a moral mistake too in case her intents are genuine.

Also, remember that a wife who refuses to live with her husband (unless it is proven by her that it is impossible to live with him) loses her right to maintenance. So, there are many reasons for you to consent to her request to come and live with you.

GOOD LUCK!!!

Samir N (General Queries) (Business) 20 April 2014

Correction: Exceptional cases could be false cases filed by HER ON YOU OR YOUR PARENTS which resulted in...

Rajasankar V (-) 20 April 2014

Thanks for the detailed reply.

I can't allow her to come back. She throw the mangalsutra infront of everybody and stated that she wont live with me. Court ordered for marriage counselling few times, all that she havent came to court. Her intentions are not coming to live with me.

Even if I get a RCR she would tell the court that I havent taken her back. It is again going to be her word against my word right?

What could I do? It seems that going by the book is not an option in this country.

Rajasankar.

Rajasankar V (-) 20 April 2014

Correction: Exceptional cases could be false cases filed by HER ON YOU OR YOUR PARENTS which resulted in...

//

Oh I should be in Jail before I can claim cruelty from her?

I have evidence from police station isn't that enough?

Samir N (General Queries) (Business) 20 April 2014

My advice is based on applicable law. I do not write the law or applicable judgments. If you let emotions get in the way of your legal strategy, then you will be fighting in court for a long time. You need to understand the law and relevant judgments and then plan your strategy. It is not based upon who is right and what is fair or justified. Thats only for legal courses in college. Facts give Judges a lot of flexibility in customizing judgments. You need to make sure that the facts are on your side. Law comes later. If you get RCR or consent to her RCR, whether you truly want her or not, you are one step ahead in the Judge's factual conclusions. Then you need to play by events whether she comes or not or what her intent is. On the other hand, if you refuse to accept her, you are a hundred steps behind in the factual findings of the Court to which he will apply the law. And yes, cruelty is VERY difficult for a man to prove. In your case, the allegations you have made, even in my opinion do not rise to cruelty by her as interpreted under the law. The fact that she has a child from you, is going to tilt all factual findings in her favor. You need to offset that by showing a willingness to accommodate them (wife and child) and I mean both morally and legally.

Rajasankar V (-) 20 April 2014

Sameer, thanks for detailed reply.

How can I accept her when she and her parents refused to even see the child. She even asked for security from the hospital that I would kidnap the child. I have hospital staff to prove that. If these things are not cruelty then what else is?

Second let us say, I opt for RCR then she refuses to come to live with me but tell the court that I am not taking her. What I can do in that case?

Forget the emotions, I am going to lose my life because this right?