If you are stuck in such a situation, here is what to do.
A client, Ms. Aditi, finds herself in a distressing situation. She is planning to leave her abusive marriage, having endured significant mental and physical trauma from her husband, Mr. Vikram. She has substantial proof of the abuse in the form of digital communications. Mr. Vikram, who worked at the same level as her, is currently facing employment issues, and his job prospects look bleak.
Ms. Aditi has an infant child. To secure a future for her child, she recently purchased a property in Sundernagar using a concessional loan from her employer, TechGenix Pvt. Ltd. The loan was taken just a few months before her child was born. She does not wish to claim any alimony from her husband but wants to ensure he provides for their child's future. She is considering seeking a court order for monthly child maintenance to be deposited into an account accessible by the child upon turning 18.
Her primary concerns are whether Mr. Vikram can claim a share in her self-acquired property and if he can legally claim maintenance from her, given his current unemployment. She has also inquired about the possibility of temporarily transferring the property's ownership to a trusted person while she continues to pay the EMIs, or if she can sell the property altogether if the situation becomes more complicated.
Advice in such cases
When facing such a complex intersection of domestic abuse, divorce, and property disputes, it is crucial to proceed with caution and strategic legal planning. Here are the initial steps to consider:
- Document Everything: Continue to securely save all evidence of abuse, including messages, emails, and any medical records. Also, gather all financial documents related to your income, the property purchase, loan agreement, and bank statements.
- Secure Finances: If you have joint bank accounts, understand the implications of moving funds. It is important to secure your own income and create a separate bank account if you haven't already.
- Avoid Rash Decisions: Do not attempt to sell or transfer the property without legal guidance. Such actions during marital discord can be legally challenged in court as an attempt to deny the other spouse a potential claim, complicating your case.
- 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.
Applicable Sections of Law
The legal framework in India for such cases involves several statutes:
- The Hindu Marriage Act, 1955: Governs divorce proceedings, child custody, and maintenance for either spouse. Section 24 allows a spouse with insufficient income to claim maintenance from the other during the court proceedings.
- The Protection of Women from Domestic Violence Act, 2005: Provides for protection orders, residence orders, and monetary relief for victims of domestic abuse.
- The Bharatiya Nyaya Sanhita, 2023 (BNS): Section 85 (replacing Section 498A IPC) deals with the offence of cruelty by a husband or his relatives. This is a criminal provision.
- The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Section 144 (replacing Section 125 CrPC) provides a legal avenue for wives, children, and parents to claim maintenance.
If you are the complainant
If you are in Ms. Aditi's position, you are the complainant seeking legal remedy. Your course of action would be:
- File for Divorce: You can file a petition for divorce on the grounds of cruelty, using the evidence you have collected.
- Seek Child Custody and Maintenance: As part of the divorce proceedings, or separately under Section 144 of the BNSS, you must file for sole custody of your child and for child maintenance. The idea of depositing it into a trust for the child is a valid request to put before the court.
- File a Domestic Violence Case: You can file a separate case under the Domestic Violence Act to obtain protection orders against your husband and seek monetary relief for the abuse suffered.
- 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.
If you are the victim
As a victim of abuse, your immediate safety and well-being are paramount. Here are steps focused on your protection:
- Prioritize Safety: If you feel you are in danger, move to a safe location, such as a parent's or a friend's house, with your child.
- Preserve Evidence: Ensure all digital and physical evidence of abuse is backed up and stored safely where the abuser cannot access or destroy it.
- Seek Protection Orders: A lawyer can help you immediately file for protection orders under the Domestic Violence Act, which can legally restrain your husband from contacting or harming you.
- 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.
How the police behave in such cases
In cases involving cruelty, the police are required to register a First Information Report (FIR) under Section 85 of the BNS, as it is a cognizable offence. However, in practice, they might initially suggest mediation through the Crime Against Women (CAW) Cell to see if a settlement is possible. You have the right to insist on the registration of an FIR if you wish to pursue criminal charges. The police will then investigate the matter by collecting evidence and recording statements from all parties involved.
FAQs people normally have
Here are answers to common questions that arise in such situations.
What evidence is required?
To build a strong case, you will need comprehensive evidence, including:
- Proof of Marriage: Marriage certificate or photographs.
- Proof of Abuse: WhatsApp chats, emails, recordings, photographs of injuries, and medical reports. Witness statements from friends, family, or neighbours can also be valuable.
- Financial Documents: Your salary slips, income tax returns, bank statements, and the loan and property documents to establish that the property is self-acquired.
- Child's Documents: The child’s birth certificate to establish paternity for maintenance claims.
How long will the investigation take?
The duration of legal proceedings in India can be unpredictable. A police investigation may take a few months. A contested divorce case, involving disputes over property and custody, can often take several years to reach a final verdict. A divorce by mutual consent is significantly faster but requires both parties to agree on all terms, including alimony, child custody, and property division.
Advocate Sudhir Rao, Supreme Court of India