HOW TO GET A DIVORCE BY SPECIAL HINDU MARRIAGE ACT
Querist :
Anonymous
(Querist) 18 May 2011
This query is : Resolved
Dear Sir,
I thank you for this lawyers club India portal. It’s very useful and important.
This is regarding my sister life battling issue:
She is married to her husband by special Hindu marriage act in the year 2002 at family court in Agartala, Tripura.
She and her husband is from Andhra Pradesh, caste wise she is SC (Scheduled Caste and He is OC - REDDY)
They were working together in the central government department at Delhi till February 2011.
She also given birth to a boy and his age is 3 years and the boy is with his parents in native and his parents have rejected to give the boy to her.
Due to the mental and physical tortures, she doesn’t want to continue further to live with him. Everyday he used to harass her by unparliamentarily words and torture physically. He had sent her out of the house in the midnights many times.He tried to push her out of the running bike while coming back from the office together. She suffered so much and sustained with all these issues for many years from 2002 to till now for about 7 years.
He abuses about her in unlawful words to her parents and relative in native. He is forcing her to live with him. He is threatening that he will commit suicide, if she doesn’t oblige to live with him. Presently, he is abusing and torturing to her parents and relatives about her over the phone. Now she is mentally disturbed and lost the job.
He is black mailing and challenging her that “ Let me see, how you get the divorce?”. That’s the reason he is not giving her document such as educational certificates, Caste Certificate, Marriage certificate, her dresses, furniture’s, Kitchen Utensils, LIC policies, both equally purchased immovable property in native,threatening her mother to vacate the house since the individual house (in a village) is in my sister’s name given by her father as a gift and her yearly earning from the crop land which had been enjoyed by her mother till now.
So, she finally decided to divorce him. But without the marriage certificate, she is not able file a case.Presently she is not working and living with him.
Please guide her how to get the divorce and the source to get the duplicate marriage certificate from Tripura.
Guest
(Expert) 19 May 2011
1. send a legal notice to regarding the marriage details and family disputes/ground as divorce notice and also call for the return of documents which are in his possession.
if he send the papers proceed according to special marriage act.
otherwise
2. claim the documents under the domestic violence act by filing complaint. The protection officer will help you get your documents.
3. based on the legal notice you can file the divorce o.p. in delhi or tripura courts. get relief.
Bhawani Mahapatra
(Expert) 19 May 2011
Dear Anonymous
Here is the relevent provisions of filing a divorce petition as per special Marriage Act. You can also cousult with your local lawyer and proceed as per your situation demands.
27. Divorce.-(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-
(a) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind, and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation- In this Clause-
(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form; or
(g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive;
Explanation- In this sub-section, the expression "desertion" means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
(1-A) A wife may also present a petitioner for divorce to the District Court on the ground.-
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
(ii) that in a suit under Sec. 18 of the Hindus Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974), or under the corresponding Sec. 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
(2) Subject to the provisions of the Act and to the Rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to the District Court on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
27-A. Alternate relief in divorce proceedings- In any proceeding under this Act, on a petition for a dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the ground mentioned in Cl. (h) of sub-section (1) of Sec. 27, the Court may, if it considers it just so to do, having regard to the circumstances of the case, pass instead a decree for judicial separation.
Querist :
Anonymous
(Querist) 19 May 2011
THANK YOU SO MUCH FOR THE REPLIES BY BOTH THE LAWYERS.
Guest
(Expert) 19 May 2011
Good advice.
M/s. Y-not legal services
(Expert) 19 May 2011
