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Prem   20 October 2021

Contested divorce

Dear Forum Members, I need your advice on divorce proceedings of my daughter. She got married 10 months ago. Both of them are NRIs. Unfortunately, the boy turned out to an alcoholic and abusive. He physically and mentally abused and harassed her in the one month they lived together. He cast aspersions on her character, penalized her for money for his drinking and even resorted to blackmailing. He verbally abused and tortured her to such an extent that she decided to go for a separation. Therefore, she withdrew her resignation and is continuing in her job abroad while he lost his job due to his awful habits mental instability. he is presently in India leading an idle and worthless life. We are supporting our daughter in her decision and in this regard I have a few queries.

1. Is it mandatory to wait for one year to file for divorce?

2. Since he is not willing for mutual divorce, on what grounds can she contest for a divorce?

3. What are the chances of him filing for restoration of conjugal rights?

4. Can the court force the girl to rejoin her husband against her wish?

5. How long would contested divorce take and what would be the approximate cost? The same with mutual divorce too.

Your valuable advices and opinions are much awaited and appreciated.



 5 Replies

Anusha Singh   21 October 2021

As per your query it is understood that you need information regarding the filing of divorce petition.

1)    Section 14 of the Hindu Marriage Act, 1955 puts an impediment of One year for filing divorce before the court but if the situation is so worsening that it falls under the exceptions created by Section 14(1), which is exceptional hardship to petitioner & exceptional depravity to respondent, then it can be filed after any number of months. But it is going to be rarest of rare.

2)    You can file the divorce petition on the grounds of cruelty.

Cruelty: Cruelty is also recognized as a ground for divorce in all the aforementioned laws. In the context of the Hindu Marriage Act, 1955, cruelty was not enumerated as a ground for divorce but the course was changed after the amendment of the Act in 1976. But, no legal regime has exactly defined the term ‘cruelty’ and it is interpreted based on various contexts like physical or mental, subjective or relative, intentional or unintentional, direct or indirect. Even the matrimonial laws in India have left it to the discretion of the judges to give remedy to the spouse based on circumstantial awareness of the case. But, in the case of Russell v. Russell ([1897] AC 395), Justice Lopes tried to give an abstract definition for the term ‘cruelty’ as conduct which has the potential to cause danger to one’s life, limb mental or bodily health along with the apprehension of such danger. In the Indian scenario, the Supreme Court contextualized ‘cruelty’ in 1975 in the case of Narayan Dastane v. Sucheta Dastane wherein, it was laid down that the courts must essentially look into the question of whether the victim or the petitioner spouse was treated in such a cruel manner by the alleged spouse that their co-habitation will be harmful or injurious to the life of petitioner spouse. Further, this ground has evolved by the decision in the case of Shobha Rani v. Madhukar Reddi wherein it was held that divorce cannot be withheld even if the cruelty contended is not deliberate or the ill-treatment is not willful.

3)    He can file restitution of conjugal rights but the court can deny such appeal made by him if the allegation of cruelty is proved in the Court of law.

4)    “NO”, the Court cannot force anyone against their wish. Even though the appeal for restitution of conjugal rights is granted still if the wife do not wish to stay with the husband then the Court cannot force her to do so.

5)    Depending on the mode of divorce, time will vary. While contested divorce can take years to finalize, mutual consent divorce is much faster and less complicated. Mutual consent divorce can probably take 6-8 months and contested divorce can take 3-4 years.

Hope it helps!

 

Regards,

Anusha Singh

1 Like

Adv Praveen Kumari (Advocate)     21 October 2021

firstly you should file the Domestic violence complaint against her husband for mental, physical verbal abuse and secondly you can file the divorce petition on ground of cruelty . hope it helps
for detailed query you can contact me

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     21 October 2021

without divorce also she can file for judicial seperation. A judicial separation is a legal process by which a married couple is formally separated, despite being legally married. It is often known has divorce from bed and board. The separation is granted in the form of a court order.

1 Like

Kishor Mehta (CEO)     21 October 2021

A marriage can be annulled within a year, however divorce proceedings have to be filed after one year of marriage. 

Prem   21 October 2021

Dear Anusha Singh, Advocate, Thank you for the detailed information given. May I know from which place you are and if you can take up our case- regards


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