If you are stuck in such a situation, here is what to do.
Mr. Rohan, a young professional from Panjim, found himself in a serious relationship with Ms. Aisha. Aisha had been living separately from her husband, Mr. Kapoor, for well over a year following a difficult marriage marked by allegations of cruelty and emotional abuse. Initially, Mr. Kapoor had agreed to a divorce by mutual consent, providing a seemingly straightforward path for Aisha to move on.
However, the situation took a complex turn when Mr. Kapoor and Aisha’s family discovered her relationship with Rohan. Mr. Kapoor immediately withdrew his consent for the mutual divorce and refused to proceed. Simultaneously, Aisha’s family began exerting immense pressure on her to abandon the relationship with Rohan and return to her husband, disregarding her history of suffering. Rohan is now concerned about the potential legal complications for himself and is seeking clarity on the proper legal course of action for Aisha to secure a divorce and protect herself from coercion.
Advice in such cases
Navigating such a situation requires careful and informed steps to protect the interests of all involved parties without escalating the conflict. Here is some essential advice:
Understand the Legal Status: It is crucial to recognise that “separation” is not “divorce.” Until a decree of divorce is granted by a competent court, the woman is still legally married to her husband. This has significant legal implications.
Maintain Discretion: While the relationship is personal, it’s advisable to maintain a level of discretion to avoid giving the estranged husband any ammunition to use in court, such as making false allegations of adultery to complicate the divorce proceedings.
Document Everything: Any threats, harassment, or pressure from the husband or the woman’s family should be documented. This includes saving text messages, emails, and recording calls (where legally permissible). This evidence can be vital if legal protection is needed later.
Support, Don’t Interfere: The third party should provide emotional support to their partner but avoid direct involvement or communication with the estranged spouse or their family. The legal battle is between the husband and wife, and interference can be misconstrued as instigation.
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 for such cases in India primarily involves personal and criminal laws:
Hindu Marriage Act, 1955: If the parties are Hindu, this Act governs their divorce. Since mutual consent (Section 13B) is no longer an option, the woman can file for a contested divorce under Section 13(1) on grounds such as ‘Cruelty’ (physical or mental) and ‘Desertion’.
Adultery as a Ground for Divorce: While adultery is no longer a criminal offence under the Bharatiya Nyaya Sanhita (BNS), it remains a strong ground for divorce under Section 13(1)(i) of the Hindu Marriage Act. The husband can file for divorce on this ground and may name the third party in the petition.
Protection of Women from Domestic Violence Act, 2005: The woman can file a case under this Act to seek protection orders against her husband and even her family members if they are harassing or pressuring her. This can include orders for residence, monetary relief, and protection from any form of violence or contact.
Bharatiya Nyaya Sanhita (BNS), 2023: If the cruelty involves criminal acts like physical assault or harassment for dowry, a police complaint can be filed. Section 85 and 86 of the BNS (which corresponds to the earlier Section 498A of the IPC) deal with cruelty by a husband or his relatives.
If you are the complainant
If you are the person in a relationship with the separated woman (like Rohan), your primary goal is to protect yourself from legal entanglements:
Avoid Provocation: Do not engage with the estranged husband or his family. Any communication can be twisted and used against you in court.
Be Prepared for Allegations: The husband might name you in the divorce petition on grounds of adultery. While this has no criminal consequences for you, it can be a source of harassment. Your lawyer will guide you on how to respond if you are made a party to the case.
Focus on Your Partner’s Well-being: Your role is to be a source of support. Encourage your partner to pursue her legal rights through proper channels and stand by her decisions.
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
If you are the woman stuck in this situation (like Aisha), you have several legal remedies available:
File a Contested Divorce: Since your husband has withdrawn consent, your lawyer should immediately file a petition for a contested divorce in the Family Court. The strongest grounds, based on the facts, would be cruelty, citing the past domestic violence and the current mental agony caused by his refusal to grant a divorce.
Gather Evidence of Cruelty: Collect all proof of past abuse, such as medical reports, photographs, emails, text messages, or witness testimony from friends or neighbours who were aware of the situation.
Seek a Protection Order: If your family is pressuring or harassing you, you can file an application under the Domestic Violence Act, 2005. The court can pass orders restraining them from contacting you or forcing you to reconcile.
Claim Maintenance: You are entitled to claim maintenance from your husband for your living expenses during the pendency of the divorce proceedings (maintenance pendente lite) and potentially after the divorce (alimony).
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
The police have a limited role in divorce proceedings, as it is a civil matter handled by Family Courts. They will not intervene in the divorce case itself. However, their involvement becomes necessary if a criminal offence is committed. For instance, if the husband or his family physically harms, threatens, or criminally intimidates the woman or her partner, a police complaint (FIR) can be filed. The police are then obligated to investigate the criminal complaint as per the procedure laid down in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. They can take action based on complaints filed under the BNS for cruelty, assault, or criminal intimidation.
FAQs people normally have
What evidence is required?
For a contested divorce on the ground of cruelty, the woman will need to provide substantial evidence to the court. This can include:
Medical reports or records detailing injuries from physical abuse.
Testimony from witnesses such as friends, family, or neighbours who have seen or heard the abuse.
Electronic evidence like threatening or abusive text messages, emails, or call recordings.
Any police complaints filed previously against the husband.
Evidence related to specific allegations, such as medical proof of fertility issues if that was a source of harassment.
How long will the investigation take?
A contested divorce is a judicial proceeding, not a police investigation. The duration of a contested divorce case in India can vary significantly. There is no fixed timeline, and it can be a lengthy process. On average, it can take anywhere from 2 to 5 years, and sometimes longer, depending on factors like the complexity of the case, the amount of evidence presented, the caseload of the court, and whether the decisions are appealed in higher courts like the High Court or Supreme Court.
Advocate Sudhir Rao, Supreme Court of India