Ms. Sunita found herself in a deeply distressing situation. After several years of a troubled marriage, she and her husband, Mr. Rajesh, had been living separately for a long time. The separation was not amicable; she was forced to leave their marital home in the city of Ayanagar shortly after she became pregnant. The marriage had been fraught with emotional and physical abuse. Mr. Rajesh would often subject her to silent treatment to control her and even tried to force her to consume alcohol against her will in social settings. The abuse escalated to physical violence, leaving her injured and traumatized.

With the unwavering support of her parents, she carried her pregnancy to term and has been raising her child as a single mother for several years. Life dealt her another blow recently with the passing of her father, followed by a job loss. Compounding her troubles, she received a notice that Mr. Rajesh, who now resides in a foreign country, has filed for divorce in an Indian court. While she is not opposed to the divorce itself, Mr. Rajesh is refusing to provide any financial support for their child or any alimony for her. He is aggressively pushing for a mutual consent divorce, a proposition she is unwilling to accept given the circumstances and her current financial instability.

Advice in such cases

If you find yourself in a similar situation, it is crucial to understand your legal rights and options. Here is some preliminary advice:

• Do not agree to a mutual consent divorce under pressure, especially if your rights to maintenance and alimony are being denied.
• The fact that your husband is living abroad does not absolve him of his legal and financial responsibilities towards you and your child under Indian law.
• Immediately gather and organize all documents related to your marriage, the child’s birth, any evidence of your husband’s income, and any proof of the domestic abuse you have faced.
• You have the right to claim maintenance for yourself and your child, regardless of your employment status.

Applicable Sections of Law

Several Indian laws protect your rights in such a scenario. It is important to be aware of them:

• The Hindu Marriage Act, 1955: Section 13 allows for a contested divorce on grounds of cruelty. Section 24 provides for maintenance ‘pendente lite’ (during the proceedings), and Section 25 provides for permanent alimony and maintenance.
• The Protection of Women from Domestic Violence Act, 2005: This Act provides a broad definition of domestic violence, including physical, emotional, and economic abuse. You can file a case to seek protection orders, residence orders, monetary relief, and custody of your child.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Section 144 of the BNSS (which replaces Section 125 of the CrPC) is a powerful tool for claiming maintenance for yourself and your child. This is a swift remedy and can be claimed even if divorce proceedings are not pending.
• Bharatiya Nyaya Sanhita, 2023 (BNS): Section 84 of the BNS (which replaces Section 498A of the IPC) deals with the offence of cruelty by a husband or his relatives. If you have been subjected to cruelty, you can initiate criminal proceedings.

If you are the complainant

As the wife responding to the divorce petition and seeking relief, you are effectively the complainant in your own counter-claims. Here are the steps you should consider:

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think
• File a detailed reply to the divorce petition filed by your husband, contesting his claims and stating the facts of cruelty and desertion.
• Simultaneously, file an application under Section 24 of the Hindu Marriage Act within the same divorce case, asking the court to direct your husband to pay for your litigation expenses and monthly maintenance until the case is decided.
• Initiate a separate case under the Protection of Women from Domestic Violence Act, 2005, to claim comprehensive reliefs including maintenance, compensation, and a protection order.
• You can also file a petition under Section 144 of the BNSS for monthly maintenance for yourself and your child.

If you are the victim

Recognizing yourself as a victim of domestic abuse is the first step toward securing justice. Your strategy should be proactive:

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think
• Document every instance of past abuse, including dates, details, and any witnesses. If you have medical records or photographs, they are crucial pieces of evidence.
• Do not communicate directly with your husband or his family without your lawyer’s guidance. Any communication can be used in court.
• Focus on your well-being and that of your child. The legal battle can be draining, but with the right legal support, you can secure your future.
• Consider filing an FIR under Section 84 of the BNS for the cruelty you have endured. This criminal proceeding is separate from the civil divorce and maintenance cases.

How the police behave in such cases

The police’s role varies depending on the case you file. Divorce and maintenance are civil matters and do not directly involve the police. However, if you file a complaint of domestic violence or a criminal complaint for cruelty under Section 84 of the BNS, the police are required to register a First Information Report (FIR). They will then investigate the matter. Since the accused is abroad, their ability to arrest him is limited, but the FIR itself is a strong piece of evidence in your civil cases. The police can also be directed by the court to help enforce protection orders granted under the Domestic Violence Act.

FAQs people normally have

• Can my husband get a divorce without my consent?
  He cannot get a mutual consent divorce without your signature and consent. He can, however, proceed with a contested divorce, but he will have to prove the grounds he has alleged in his petition, which you have the right to defend.
• Am I entitled to maintenance if I am currently not working?
  Absolutely. The law mandates that the husband support his wife and child, ensuring they can maintain a similar standard of living. Your current unemployment, especially while you are upskilling, strengthens your claim for maintenance.
• What if he gets married again abroad without divorcing me in India?
  As long as your marriage is validly registered in India and not dissolved by an Indian court, any subsequent marriage is legally void in India and constitutes the offence of bigamy.
• How can court orders for maintenance be enforced if he is in another country?
  India has reciprocal agreements with many countries for the enforcement of judicial orders. The court can issue specific directions, and through legal channels, these orders can be enforced in the country where he resides.

What evidence is required?

To build a strong case, you will need evidence. This can include:

• Your marriage certificate and the child’s birth certificate.
• Any photographs, emails, text messages, or recordings that prove the abuse, cruelty, or his admission of responsibilities.
• Medical records or police complaints, if any, from the time of the physical abuse.
• Proof of your husband’s residence and employment abroad, including his salary slips, bank statements, and details of his assets.
• Your own financial documents to demonstrate your lack of income and need for support.
• Testimonies from family or friends who witnessed the abuse or are aware of your situation.

How long will the investigation take?

The timeline for legal proceedings can be lengthy. A contested divorce case where one party is abroad can take several years to conclude. However, the law provides for interim relief. An application for interim maintenance under the Hindu Marriage Act or the Domestic Violence Act is typically decided within a few months, ensuring you receive financial support while the main case is ongoing. The duration depends on the complexity of the case, the cooperation of the opposing party, and the caseload of the court.

Advocate Sudhir Rao, Supreme Court of India