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

My name is Priya, and I am writing this out of concern for my mother, Sunita. For nearly two decades, my mother has been subjected to continuous domestic cruelty and emotional abuse by my father, Ramesh, and his family in our home in the city of Jayanagar. My father, while not an alcoholic, has always been emotionally neglectful and his behaviour has worsened over time, leaving my mother in a state of constant distress. She has never experienced happiness or peace in her marriage.

As her daughter, I feel I must act to end her suffering. I am exploring the possibility of helping her file for a divorce on the grounds of domestic violence. However, we have a significant fear regarding our financial security. The property my father controls is not self-acquired; it is an ancestral property that he inherited from his father. Our main question is: if my mother proceeds with a divorce, what happens to her and our rights to this ancestral property? Will filing for divorce mean we forfeit any claim to a home and financial support?

Advice in such cases

• Prioritize Safety: If you are in immediate danger, your first step should be to move to a safe location, such as a friend’s, relative’s, or a women’s shelter.
• Document Everything: Keep a detailed record of all incidents of abuse, including dates, times, what happened, and who witnessed it. Save any threatening messages, emails, or recordings. If there is physical abuse, get a medical examination and keep the reports.
• Secure Important Documents: Safely keep original copies of important documents like your identity proofs, marriage certificate, birth certificates of children, bank account details, and property papers.
• 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

In India, several laws protect individuals from domestic violence and provide avenues for relief:

• The Protection of Women from Domestic Violence Act, 2005 (DV Act): This is a civil law that provides for immediate relief, including protection orders, residence orders (the right to live in the shared household), monetary relief, and custody orders.
• The Hindu Marriage Act, 1955: Cruelty is a valid ground for seeking a divorce under this Act. The acts of domestic violence can be cited as instances of cruelty.
• Bharatiya Nyaya Sanhita (BNS), 2023: Sections 85 and 86 of the BNS deal with the offence of cruelty by a husband or his relatives, which is a criminal offence. This has replaced the earlier Section 498A of the IPC.
• Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: Section 144 of the BNSS provides for maintenance for wives, children, and parents, ensuring financial support.

If you are the complainant

• Gather All Evidence: Systematically collect all proof of abuse. This includes medical records, photos, witness information, and any digital communication.
• File a Complaint: You can file a complaint under the Domestic Violence Act, 2005, with the help of a Protection Officer or directly in the Magistrate’s court. This can secure immediate orders for your protection and residence.
• Lodge an FIR: If the cruelty involves criminal acts (physical assault, threats, etc.), you can file a First Information Report (FIR) at the local police station under the relevant sections of the Bharatiya Nyaya Sanhita (BNS).
• File for Divorce: A separate petition for divorce can be filed in the Family Court on the grounds of cruelty.
• 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

• Your Safety is Paramount: Remove yourself and your children from the abusive environment if possible. Your life and well-being come first.
• Confide in Someone: Inform a trusted friend, family member, or a professional counsellor about your situation. Do not suffer in silence.
• Understand Your Rights: You have the right to live in the shared household, the right to be free from violence, and the right to claim maintenance for yourself and your children.
• 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 response of the police can vary. Legally, upon receiving a complaint that discloses a cognizable offence like cruelty under Section 85/86 BNS, they are obligated to register an FIR. In marital disputes, some officers might initially suggest counselling or mediation to try and resolve the issue amicably. However, if you insist on legal action due to the severity of the abuse, they must proceed. They will also assist you in getting a medical examination done in case of physical injury and will record the statements of witnesses. Under the DV Act, a Protection Officer is appointed to assist the victim and prepare a Domestic Incident Report (DIR) for the court.

FAQs people normally have

What about my rights to my husband’s ancestral property if I get a divorce?
A wife does not have a direct ownership claim on her husband’s ancestral property. However, she has the right to residence in the “shared household,” which can include an ancestral property if the couple lived there. Upon divorce, she is entitled to claim maintenance and alimony, and the court will decide the amount based on the husband’s financial status, including his income and assets (both self-acquired and ancestral). The children, if they are coparceners in a Hindu Undivided Family (HUF), have a right by birth in the ancestral property, which is separate from the divorce proceedings.

Can I file a domestic violence case and a divorce case at the same time?
Yes, you can. The case under the Protection of Women from Domestic Violence Act, 2005, is for immediate civil reliefs like protection orders and maintenance. The divorce petition is for the legal dissolution of the marriage. The two proceedings are independent but can run concurrently, and evidence from one case can often be used in the other.

What evidence is required?

• Witness Testimony: Statements from children, neighbours, friends, or relatives who have witnessed the abuse.
• Medical Evidence: Doctor’s reports, photographs of injuries, and hospital records.
• Electronic Evidence: Abusive text messages, emails, social media posts, or audio/video recordings (subject to rules of admissibility).
• Personal Records: A detailed diary or journal documenting the incidents of violence chronologically.
• Proof of Financial Control: Bank statements or other documents showing that the abuser is withholding financial resources.

How long will the investigation take?

The duration of legal proceedings can vary significantly. Under the BNSS, the police investigation for an FIR has defined timelines. Cases under the DV Act are supposed to be fast-tracked, with the law stipulating that the court should try to conclude the case within 60 days of the first hearing, but delays are common. A contested divorce case can be a lengthy process, often taking several years to reach a final decision, depending on the complexity of the issues involved, such as child custody and property disputes.

Advocate Sudhir Rao, Supreme Court of India