Divorce

Dear Client, 

In the present matter, the law is in your support. There are many good reasons, as well as very clear legal reasons, that you have for getting a divorce, and your child's welfare will be protected during the entire process. 

You have established grounds for divorce pursuant to Section 13(1)(ia) of the Hindu Marriage Act of 1955 based upon the fact that you have been subjected to cruelty by your spouse.The Supreme Court in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 laid down comprehensively that physical violence, especially when committed repeatedly under the influence of alcohol, constitutes the highest form of matrimonial cruelty. A husband who habitually gets intoxicated and physically assaults his wife satisfies this ground completely. You do not need to prove every single incident a consistent pattern of abusive behaviour is sufficient. Additionally, habitual drunkenness that renders cohabitation unbearable is specifically mentioned under Section 13(1)(ib) of the Act as a separate ground. You therefore have two independent grounds cruelty and habitual intoxication.

On your son's custody and maintenance, as the mother of a minor child, you have an extremely strong claim to custody. Under Section 26 of the Hindu Marriage Act, the Family Court can pass interim orders for your son's custody and maintenance from the very first hearing. Do not delay filing once you file, you can simultaneously seek interim maintenance under Section 24 of the Hindu Marriage Act for yourself and your son, which will be granted quickly given your husband's established conduct.

On how to proceed: First, approach a Family Court lawyer immediately and file for divorce on grounds of cruelty and habitual intoxication under Section 13(1)(ia) and (ib). Second, simultaneously file for Protection Order under the Domestic Violence Act, 2005 before the Magistrate this can be done in parallel and will give you immediate legal protection against further physical assault. You may have the right to live in the marital home and receive financial support. Lastly, gather and keep all evidence, including witness accounts, photographic evidence, and voice recordings if you have them.Fourth, if you are in immediate danger, file an FIR under Section 115 BNS (Voluntarily causing hurt) and Section 85 BNS (Cruelty by husband) at your nearest police station. You need not fear being alone in this the law is firmly on your side.

Dear Client,

Yes, you can apply for divorce as the said acts constitute cruelty under the Hindu Marriage Act (or your Personal Law), and this is a valid ground for divorce. You can also claim maintenance and usually physical custody of your son as courts generally prefer the mother for young children unless there is strong reason not to. You should immediately go to a local women’s help‑cell or police station or Protection of Women from Domestic Violence (PWDVA) shelter to file a complaint for domestic violence, and then consult a women‑rights or family‑law lawyer in your city who can file a divorce petition on the ground of cruelty and a maintenance/DV case, because you should not stay in a violent home and your safety and your son’s welfare must come first.

I hope this helps and if you have any further issues do not hesitate to contact us.