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divorce for my daughter

(Querist) 16 May 2008 This query is : Resolved 
We had applied for mutual consent divorce for my daughter, as the marriage did not work. Married on 11th March 2007,she came back on 16th June 2007, and is staying with me eversince. We applied for mutual consent on 31st august 2007,ands as per our advocate we got a waver of six months.When we requested the boy to sign the affidavit, he refused to do say and claims the he has told the court that he now is not intrested for mutual consent.
What are our options now and how to move further in this matter. The seperation period of one year will over next month.
RC Kapoor
rc kapoor (Querist) 16 May 2008
Manish Singh (Expert) 16 May 2008
Find out the reason and ground on which you can base your divorce petition under Hindu laws.Grounds are -
(a) ADULTERY: i.e. voluntary sexual intercourse with any person other than his/her spouse. (Though initially a divorce could be granted only if such spouse was living in adultery, by the Marriage Laws Amendment Act, 1976, even a single voluntary sexual act, with any other person other than the spouse is a sufficient ground for divorce).

(b) CRUELTY: Initially cruelty was a ground only for judicial separation, but now forms a ground for divorce under the Amendment Act of 1976.

(c) DESERTION: This has been added as a ground for divorce by the Amendment Act, though previously it was a ground for judicial separation.

(d) CONVERSION: In order to obtain a divorce on this ground it should be proved that such other party has converted. Mere professing or theoretical allegiance to any other religion does not mean conversion. This ground has been added to the act for obtaining divorce, as according to the Hindu Law, a marriage is not dissolved by conversion by one of the parties. Therefore contrary to the belief that conversion by itself resulted in divorce, a person now has to obtain a decree of divorce under the Act.

(e) UNSOUNDNESS OF MIND: Initially it was essential for a party to prove that his/her spouse was incurably of unsound mind for a continuous period of three years. However now this duration has been omitted. In order to obtain a decree under this ground it has to be proved that the spouse is affected to such an extent that the party seeking divorce cannot be reasonably expected to live with him/her.



(h) ENTERING NEW RELIGIOUS ORDER: i.e., by renouncing the world, This requires the performance of certain ceremonies and the observance of certain formalities.

(i) PRESUMPTION OF DEATH: Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive for a period of at least seven years.

For better interpretation, consult some good matrimonial advocate.

H. S. Thukral (Expert) 16 May 2008
In the cirumstances petition for divorce by your daughter is only option. But it takes a lot of time in getting the final decree of divorce, if other party resists it. Sometime whole life goes into it. Better bring around the boy to agree to a mutual consent, in the interest of both parties.
Grounds on which divorce can be sought are mentioned by Manish in his opinion.
rc kapoor (Querist) 18 May 2008
can you suggest any lawyer in baroda who can be met for this.
rc kapoor (Querist) 18 May 2008
J K Agrawal (Expert) 20 May 2008
A petition for divorce by mutual consent can be filed only when the parties are living separately for more then one year. and as per AIR 1992 SC 1904 consent of both parties should be up to the date of decree. You may proceed on ground of irretrievable break down of marriage which is very new ground of divorce and the court recognizes it.
SANJAY DIXIT (Expert) 18 June 2008
As I think, regarding divorce between your daughter & son in law; Now you have the only option that your daughter should file a divorce petition in the competant court of law.

Now period of 1 year from the marriage is passed; so you are free to sue the divorce petition on the ground of cruelity.

Period of seperation of 1 year will not help in this regard as the ground of desertion will be available after 2 years of seperation.
rc kapoor (Querist) 24 June 2008
I desire light on the following points:
1. The Petetion of Divorce on mutual consent was filed 0n 26th sept 2007.Due to 6 month waiver, the final date of decision was on 26th March 2008.
Due to reasons best known to the common lawyer,we were not informed about this and no one remained present. The petetion was rejected.During this period the groom has told us that he has told the court that he does not agree to Mutual consent.We were also not informed about this by the common lawyer.
Now, can I request the Hon Judge to review the rejection and give his decsion, ex party?
2. In case this is not possible some lawyers are of the view that we file a complain in the court under section 498 and force the groom to come here and sign the mutual consent and then withdraw the complain under section 498.
3. Other lawyers are of the view that a case for divorce may be directly filed.

I Need an expert advise on this.I also need the contact for a good matrimonial lawyer,who can give his views on the net if he is not fron Baroda or gujarat.
Srinivas.B.S.S.T (Expert) 24 June 2008
1. In a petition for divorce under mutual consent the court cannot give exparte orders. The presence of both the parties is a must.

2. It is always a weapon in the hands of women to file a 498A complaint and bring the husbands on their knees.

3. A case for divorce if filed directly without the spice of 498A will not fetch the results and moreover it is lengthy process.

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