What to do if wife is not ready to give divorce
Nikhil Gupta
(Querist) 07 December 2014
This query is : Resolved
I am reposting with more details:
Got married in Feb 2014 and filed annulment in march 2014 due to non consummation of marriage. On judge's advise that I will not able to proove annulement, I amended it to Divorce petition under 13(i)( ia). However, after 7 months of filing the petition, it was finally dismissed by the family court in Delhi citing reason that denial of consummation does not amount to mental cruelty and I was not able to proove it as exceptional hardship... Now, I have the following concerns:
1) As per my lawyer: We will file the divorce case in month of Feb 2015 which will initiate the case automatically since it will be after one year of marriage. I hope this is correct ?
2) Now, the matter of the case, evidences etc will remain same. How, will I be able to win the case.. ( IT IS A CONTESTED DIVORCE)..
3) I am 100 percent sure that the wife is either Physically or mentally impotent to consummate,, How can I insist in court to order for medical examination. Because the judge refused to issue any such order when my lawyer was raising this again and again in my lost petition.
4) My wife and her parents are not ready to settle it outside the court. I have offered them return of all expenses they incurred on marraige.. They just want a stamp of marriage on girl for as long as they can.
Devajyoti Barman
(Expert) 08 December 2014
Why wa the sit dismissed? It is not clear from your query.
ANYWAY FILE A FRESH SUIT FOR DIVORCE.
It is true that non consummation of marriage is very difficult to prove.
Rajendra K Goyal
(Expert) 08 December 2014
Divorce petition should have been filed after one year of marriage.
You have not stated the reason of dismissal.
Consult local lawyer and show him all the documents.
If she is not ready for divorce or live together, contested divorce would take time.
ajay sethi
(Expert) 08 December 2014
when you raise a query you must mention reasons for rejection of your divorce petition . unless we know detailed facts we cant advice
Nikhil Gupta
(Querist) 08 December 2014
The petition ( it was filed after one month of marriage in March 2014 and was dismissed in Nov 2014) was dismissed on ground that I was not able to prove that it is the wife who is responsible for non consummation of marriage and hence this does not amount to mental cruelty. Now my lawyer suggests that instead of challenging the decision we will file the divorce petition in March 2015 which automatically initiates the divorce case.. Now my concerns are :
1) What and how to prove that in the bedroom it is the wife who is not ready to consummate the marriage ( cant install camera,, right ? )
2) On account of dismisal of this petition, can wife forcibly enter my house ? currently she is living with her parents and I am living separately from my parents on a rented accomodation as suggested by lawyer ( Filed another case for injunction by father to prevent her entry) ?
3) What to do if the wife and her parents are neither ready to settle out of court, Nor mutual divorce..Will the case go on and go on.for years and years..
4) Can I request for her medical examination,, as I am confident that she is either medically or mentally impotent to consummate ?
Nikhil Gupta
(Querist) 09 December 2014
Kindly refer to following / I have modified the main query.
I am reposting with more details:
Got married in Feb 2014 and filed annulment in march 2014 due to non consummation of marriage. On judge's advise that I will not able to proove annulement, I amended it to Divorce petition under 13(i)( ia). However, after 7 months of filing the petition, it was finally dismissed by the family court in Delhi citing reason that denial of consummation does not amount to mental cruelty and I was not able to proove it as exceptional hardship... Now, I have the following concerns:
1) As per my lawyer: We will file the divorce case in month of Feb 2015 which will initiate the case automatically since it will be after one year of marriage. I hope this is correct ?
2) Now, the matter of the case, evidences etc will remain same. How, will I be able to win the case.. ( IT IS A CONTESTED DIVORCE)..
3) I am 100 percent sure that the wife is either Physically or mentally impotent to consummate,, How can I insist in court to order for medical examination. Because the judge refused to issue any such order when my lawyer was raising this again and again in my lost petition.
4) My wife and her parents are not ready to settle it outside the court. I have offered them return of all expenses they incurred on marraige.. They just want a stamp of marriage on girl for as long as they can.
P. Venu
(Expert) 10 December 2014
The facts disclosed do not support the factum of cruelty due to non-consummation or otherwise. Hence, your petition for divorce could only be based on non-consummation.
V R SHROFF
(Expert) 10 December 2014
settle it amicably with help of common friends & relatives.. don't waste ur valuable time. it cost.
T. Kalaiselvan, Advocate
(Expert) 11 December 2014
From your contents it appears that you are still missing out some details because, once your petition for annulment was either dismissed or withdrawn, you have filed a petition for divorce, however, the court will not entertain an application for divorce without a petition u/s 14(1) of HMA is filed and allowed. The provisions of section 14(1) are:
Requirement of provision section 14which is intended by the Legislature not to allow a marriage to be dissolved by a decree by either party to a marriage in a huff and hurry without allowing even the minimum time needed for making the marriage success, if cannot be regarded as an absurdity because of the well accepted canons of construction of a statutory provision, has to necessarily relate to Hindu Marriage governed by the HMA. If so, the question of presentation of a petition for divorce u/s 13 respecting a marriage, which is not a Hindu marriage governed by the HM act does not arise. But the legislature by enacting segion 14 has imposed a ban upon presenting a petition for divorce unless one year has elapsed from the date of marriage. In case of exceptional hardship to the petitioner or exceptional depravity of the respondent, the court under proviso to section 14(1) of the Act may, however allow a petition u/s 13 o be filed within one year from the date of marriage.
Inview of above, in my opinion, the petition reported to have been dismissed by the court would have been u/s 14(1) wherein the court would have justified the dismissal on the stated grounds being not an exceptional one. Clarify this issue properly from your advocate or take a second opinion from another advocate by showing the relevant papers to him/her.
