If you are stuck in such a situation, here is what to do.

Ms. Anjali, a working professional from a suburb near Jaipur, found herself at a crossroads after enduring nearly five years of a tumultuous marriage to Mr. Vikram. Their union, solemnized in a small temple ceremony during a period of public restrictions, was never formally registered. The relationship, which began with promise, descended into a cycle of verbal and occasional physical abuse. Despite the support of her in-laws, who acknowledged their son’s behaviour, Anjali felt she had no choice but to leave the marital home with her young daughter for her own safety and well-being.

Her parents supported her decision, providing her with a safe haven. However, Vikram, who lacks a stable career, began showing up at her parents’ residence, not just to see their child but with the apparent intention of staying there indefinitely. He operates under the assumption that Anjali will eventually relent and return to him. Anjali is resolute in her decision to seek a divorce but is concerned about the legal complexities, especially since their marriage is unregistered. Vikram has also threatened to contest for the child’s custody, citing videos he took of Anjali during a difficult period of post-partum anxiety, from which she has now fully recovered with medical support.

Advice in such cases

Navigating the end of a marriage, especially one involving abuse and legal ambiguities, requires a clear and strategic approach. Your safety and your child’s welfare are paramount. It is crucial to act decisively and with proper legal guidance to protect your rights and secure a stable future.

• Prioritize Safety: Ensure you and your child are in a safe environment, away from the abusive partner. If you feel threatened, do not hesitate to seek protection.
• Document Everything: Keep a detailed record of all abusive incidents, including dates, times, and what transpired. Preserve any evidence such as threatening text messages, emails, or recordings.
• Secure Finances: If possible, secure your personal financial accounts and documents. As a working individual, your financial independence is a significant asset.
• Consult with Lawyer: The very basic and important step to start is to talk to a 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 on a case-to-case basis. He is helping you come out of this situation. He is an 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 in 7-10 days.

Applicable Sections of Law

Several laws in India provide protection and recourse in such situations. Your legal strategy will likely involve a combination of the following:

• The Hindu Marriage Act, 1955: This Act governs divorce, child custody, and maintenance for Hindus. Even if a marriage is unregistered, it can be proven valid in court to seek relief under this Act.
• The Protection of Women from Domestic Violence Act, 2005: This is a crucial piece of legislation that provides swift, civil remedies. You can obtain protection orders, residence orders (preventing the husband from entering your current residence), and monetary relief.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Section 144 of the BNSS allows a wife and child to claim maintenance from the husband, irrespective of a pending divorce case, if he neglects to support them.
• Bharatiya Nyaya Sanhita, 2023 (BNS): If the abuse amounts to criminal cruelty, Sections 85 and 86 of the BNS (which deal with cruelty by a husband or his relatives) can be invoked. This would involve filing a police complaint.

If you are the complainant

As the person initiating the legal process, you must take structured steps. First, your lawyer will help you gather evidence to prove the existence of your marriage. This can be done through photographs of the wedding, witness statements from those who attended, or any joint documents. Once the marriage is established, you can file a petition for divorce on the grounds of cruelty. Simultaneously, you can file an application under the Domestic Violence Act for immediate protection and a maintenance application under Section 144 of the BNSS to secure financial support for yourself and your child during the legal proceedings.

If you are the victim

As a victim of domestic abuse, your immediate priority is your safety and mental peace. The law is on your side. You can approach the court under the DV Act to get an order restraining your husband from contacting you, harassing you, or coming to your place of residence. The court can also pass an order directing him to pay for your and your child’s expenses. It is important to remember that his threats regarding past health issues are often intimidation tactics. Courts prioritize the child’s welfare, and a parent’s recovery from a health issue is seen positively, especially when they have been the primary caregiver.

How the police behave in such cases

The response from the police can vary. In some cases, officers are sensitive and proactive, especially when approached for matters under the Domestic Violence Act or for filing an FIR for cruelty under the BNS. However, sometimes the police might attempt to mediate or encourage reconciliation, viewing the issue as a private family matter. It is important to be firm and clear about your intentions. If you wish to pursue legal action, insist on your right to file a complaint. Having a lawyer accompany you or guide you before you approach the police can be very effective.

FAQs people normally have

Do I need to register my marriage to file for divorce?

No, it is not mandatory to register your marriage to file for divorce. While registration simplifies the process, a marriage solemnized through religious rites is legally valid. You will need to prove the marriage took place using evidence like photographs, videos, and witness testimony from guests or the priest who performed the ceremony.

Can my husband use my past mental health issues against me in a custody battle?

It is highly unlikely that a court will deny you custody solely based on past, treated mental health issues. The paramount consideration for any court is the “welfare of the child.” If you can demonstrate that you have recovered, are now healthy, and have consistently been the child’s primary caregiver, your past health condition will not be a decisive factor. A certificate from your treating psychiatrist and therapist will be valuable evidence.

Can my financially unstable husband win custody?

Custody is not solely determined by financial status. Courts consider numerous factors, including the emotional bond between the child and each parent, who has been the primary caregiver, the stability of the environment each parent can provide, and the child’s preference (if old enough). While he can contest for custody, his financial instability and history of abuse will weigh against him. The court’s goal is to place the child in an environment that is most conducive to their overall well-being.

What evidence is required?

To build a strong case, you should gather the following evidence:

• Proof of Marriage: Wedding photos, videos, invitation cards, and statements from witnesses.
• Proof of Abuse: Any medical reports of injuries, photos, threatening messages (WhatsApp, SMS, email), or recordings. Testimony from family or friends who witnessed the abuse can also be used.
• Proof of being the Primary Caregiver: School records, vaccination and medical records of the child, photographs of you with the child at various events, and testimony from teachers or family.
• Evidence of Husband’s Conduct and Financials: Any proof of his unstable employment, erratic behaviour, or failure to provide financially.
• Your Stability: Your employment records, salary slips, and bank statements to show you can provide a stable environment for the child.

How long will the investigation take?

For civil cases like divorce and custody, it is not a police “investigation” but a judicial process. The timeline can vary greatly. Obtaining interim relief, such as a protection order under the DV Act or interim maintenance under the BNSS, can be relatively quick, often within a few months. However, a contested divorce case, where both parties disagree on terms, can take several years to reach a final decision in the Indian legal system. The process involves filing petitions, replies, evidence, cross-examination, and final arguments.

Advocate Sudhir Rao, Supreme Court of India