Husband denying to give maintenance after divorce. What should i do?
After being abused not only physically and verbally, my husband has also been caught having an affair with his old flame again. Before my marriage of 17 years my husband had a live-in relation with this girl. They even got married but they do not possess any solid proof of the same. This relation ended due to misunderstandings between the two.
Then I and my husband got married. I have been noticing my husband’s behaviour for the last 8 to 9 months, I came to know that his old flame is back in his life. I now want a divorce but he says he will not give me any money.
What can I do?
Firstly we would suggest that you register a complaint for the offence of Adultery against your husband under Section 497 of the Indian Penal Code.
Secondly, you should file a petition claiming maintenance from your husband for yourself and your child. Thereafter you can file a petition for divorce in the competent court.
Now explaining them in detail:
1. With respect to maintenance: Your husband is under a legal obligation to provide for your and your child's maintenance. Any female can claim maintenance from her spouse through criminal proceeding or/and civil proceeding. Interested parties may pursue both criminal and civil proceedings, simultaneously, as there is no legal bar to it.
In criminal proceedings under Section 125 of the Code of Criminal procedure, the religion of the parties does not matter at all, unlike in civil proceedings. So we would suggest that firstly file a petition under Section 125 of the Code of Criminal Procedure claiming maintenance.
2. Divorce and maintenance: Thereafter if you wish to seek a divorce, a petition for divorce needs to be filed. You shall be governed by the Indian Christian Marriage Act, 1872 and Indian Divorce Act, 1869. And if you have registered your marriage under Special Marriages Act, 1954, then you shall be governed by Special Marriages Act, 1954.
For your understanding, we will explain the provisions governing divorce under both the legislation:
1. Indian Divorce Act, 1869
It provides that:
When wife may petition for dissolution.-Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof,
a. her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;
b. or has been guilty of incestuous adultery,
c. or of bigamy with adultery,
d. or of marriage with another woman with adultery, or of rape, sodomy or bestiality,
e. or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro,
f. or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
So you can claim a divorce based on any of the above mentioned grounds.
2. The Special Marriage Act, 1954
Section 27 of the Act provides that:
Divorce.-(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-
(a) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind, and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
(f) has been suffering from venereal disease in a communicable form; or
(g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive;
Explanation- In this sub-section, the expression "desertion" means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be
(1-A) A wife may also present a petitioner for divorce to the District Court on the ground.-
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
(ii) that in a suit under Sec. 18 of the Hindus Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974), or under the corresponding Sec. 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding
maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
(2) Subject to the provisions of the Act and to the Rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to the District Court on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards.
Hence we suggest that depending upon the Act applicable to you, you should file a petition for divorce on the grounds of adultery.
Thereafter you can claim maintenance under Section 36 and 37 of the Indian Divorce Act which governs interim and permanent alimony from your husband both for yourself and for your child.
- Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at LawRato.com and has been responded by one of the Divorce Lawyers at LawRato.com to address the specific facts and details. You may post your specific query based on your facts and details to get a response from one of the Lawyers at LawRato.com or book a Detailed Consultation with a Lawyer of your choice to address your query in detail.
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