A.
Dear Client,
In the given scenario, if you want to continue marital relationship with your husband, then you can file a petition for the Restitution of Conjugal Rights(RCR) under Section 9 of the Hindu Marriage Act, 1955 before the District Court under whose jurisdiction the marriage was solemnized, or respondent (the other spouse) resides at the time of filing petition or the parties to the marriage last lived together or the petitioner wife resides at the time of filing the petition. This remedy can be sought by either the husband or the wife who has been deserted or separated from the other spouse without any reasonable cause or excuse. A petition for the restitution of conjugal rights must be filed within one year from the date of the withdrawal of the spouse and the burden of proof lies on the petitioner to establish that the other spouse has withdrawn from society without any reasonable cause. If you win the case, you may be entitled to claim maintenance from your husband under Section 125 Cr. PC provided you are unable to maintain yourself or your child. A maintenance case under Section 125 Cr. PC can be filed in the court of Judicial Magistrate or the Family Court in a district where the respondent is currently resides or where the couple last lived together or where the petitioner resides, even if it's temporary. Under Section 125 Cr. PC(now Section 144 of BNSS), any person having sufficient means is liable to support his wife and children, provided 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. The courts have also held that maintenance can be granted to the wife even if she is living separately from her husband due to his ill-treatment or other reasons. If maintenance is paid monthly, the Supreme Court of India has established a benchmark value of 25% of the husband's net monthly earnings to be awarded to the wife. In the case of Sunita Kachwaha & Ors. versus Anil Kachwaha (2014), the Supreme Court held that the mere fact that the wife was earning some income could not be enough to disentitle her from her right to maintenance. You may consider judicial separation, which is a viable option in the given scenario. Under the Hindu Marriage Act, 1955, judicial separation is governed by Section 10 of the Act. If the court is satisfied with the grounds presented, it can pass a decree for judicial separation. Once such a decree is issued, it relieves the parties from their matrimonial duties and obligations, except for the duty to cohabit. Judicial separation in India allows married couples to live apart while remaining legally married, providing them a chance to resolve their issues or move toward divorce. The grounds for judicial separation are specified in sub-section (1) of section 13, and in the case of a wife, also on any of the grounds specified in sub-section (2) of Section 13 of the Act. Once a decree for judicial separation is passed, the petitioner is no longer obligated to cohabit with the respondent. The marriage remains legally intact, but the parties are permitted to live separately. The burden of proving the grounds for judicial separation lies with the petitioner. After a decree of divorce, parties can legally enter into new marriages. But, during judicial separation, entering into a new marriage would be considered bigamy. Thus, in judicial separation, you still remain legally married to your spouse and are entitled to share all the social securities and financial liabilities. The rights of separated spouses to inherit do not change as a result of judicial separation in India. Further, to maintain the status quo of the jointly own property in Hyderabad, you can file a civil suit in the jurisdictional civil court seeking a seeking a permanent injunction and once a decree of permanent injunction is passed, the defendant is permanently prohibited from the assertion of a right or from the commission of an act that would be contrary to the rights of the plaintiff. Hence, it is recommended to consult with an Advocate specialising in matrimonial matters for tailored advice to understand your rights and remedies to navigate the issues legally and effectively.
Kolkata
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