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What legal rights do i and our child gets entitled to after divorce?
10-May-2023 (In Divorce Law)
What are my rights in a legal divorce? It’s my and my husband’s second marriage. A case under Sec. 498 is pending in the court since March 2012. My father before marriage agreed to pay 10 k per month for husband's home EMI, which was returnable, who took more than 30-40 k after marriage. In 2011 he retired as a pensioner & had an affair with his old friend when he started misbehaving and abusing me.
He also asked me to move out of the home he purchased using my father's money. I and my daughter were physically abused by my husband and his son. We had to call the cops. On 5th April I filed 354. What should I do now?
If your husband and your spouse did not exist at the time of your marriage or both of you were legally divorced, then one of the most important rights under divorce and matrimonial laws is right to receive maintenance.
You may file a Divorce petition under Section 13 (1) of Hindu Marriage Act (assuming you are a Hindu) therein, pleading the ground of cruelty under the Hindu Marriage Act.
The term cruelty has been specifically provided in Section 13(1)(ia) of the Hindu Marriage Act 1955 which is reproduced here under:
Under Section 13(1)(ia) the term cruelty includes mental as well as physical cruelty. Mental cruelty has been elaborated upon by the Supreme Court of India to include:
“Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.”
Subsequently, you may further file an application under Section 24 of Hindu Marriage Act 1955 and seek interim maintenance from your husband.
Kindly contact us for any further details and action.
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Adv. Sudershani Ray
Delhi | 200+ Answers
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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.
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