Legal advice on accommodation and divorce

Dear Client,
A person can restart his or her life afresh at any stage or age if she or he is inspired or encouraged to do so by well-wishers. If you feel you can manage yourself outside without the support of others for all your needs, nothing prevents or restricts you from walking out of your toxic marital home to look for the destiny of your choice. So, you need to arrange for an independent source of income to live your life on your terms. In the prevailing situation, you have the following legal remedies to resolve the crisis. 1) You can file a complaint against your husband and his other family members who subjected you to domestic violence at the local police station under Sec.12 of the PWDV Act, 2005. Under Section 12(1) of the DV Act, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application directly to the Judicial Magistrate seeking one or more reliefs under this Act that include the right to reside in the shared household, prohibitory order, maintenance order and residence order. 2) You may consider judicial separation or divorce on the grounds of mental cruelty to resolve the matter permanently. Either spouse can obtain a decree of divorce if one spouse has treated the other with cruelty. Section 13 (1) (ia) of the Hindu Marriage Act, 1955, allows either spouse to seek divorce on the grounds of cruelty. If there is no possibility and no scope of mutual consent divorce, you can file a one-sided/contested divorce petition before the Family Court/District Court where the couple last lived together, such as their marital home, where the marriage was solemnized, or where the wife currently resides praying for a decree of divorce and seeking maintenance or alimony from the husband. The party seeking divorce can submit audio, video, or written evidence to prove his or her claim. As regards maintenance, be informed that interim maintenance, temporary financial support during legal proceedings, can be granted under Section 23 of the Domestic Violence Act (DV Act), Section 24 of the Hindu Marriage Act (HMA), and Section 125 of the Code of Criminal Procedure (CrPC). and any person having sufficient means is liable to support his wife and children, provided that she is unable to maintain herself and her children. Certain guidelines had been set down by the Supreme Court in its judgment in the case of Rajnesh v. Neha (2021(2) SCC 324). Said criteria include the parties’ status, the respondent Wife needs, the respondent’s income and property, the claimant’s liabilities and financial responsibilities, the parties’ age and employment status, the parties’ residential arrangements, the parties' minor children’s maintenance, and illness or disability, etc. Maintenance is not restricted to the husband's income alone. The courts have held that the husband's income, as well as his assets and properties, can be taken into consideration while determining the maintenance amount. A contested divorce is more expensive and time-consuming than a mutual consent divorce. However, grounds for one-sided/contested divorce reflect the various challenges and complexities that may arise in the course of divorce proceedings. It is always recommended to consult an expert divorce lawyer to get the right legal advice before filing a contested divorce petition. Under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the custody of a child below 5 years of age is given to the mother. As per the Guardians and Wards Act 1890, once a child achieves the age of 9 years in India, his/her preference for custody is considered by the Court on appeal seeking custody of a child by either parent. If you are not financially sound enough to continue with litigation expenses, you can apply to the Member Secretary, State Legal Services Authority, or the District. Legal Services Authority seeking free legal services available to women under Sec.. 12(c) of the Legal Services Authority Act, 1987 to contest the cases in the Court for appropriate relief. Hope it may help.