Netri (Lead) 02 December 2013

Seeking divorce

Hi,

Its been two years since I am married, I have one year age daughter and my wife is working.

We have reached to a point where we donot want to stay with each other anymore. My wife asked for divorce many times last year but I kept defending it , consoled her to stay together.

Six months after my marriage , my wife's father died and her mother started staying with us. She never told me if her mother is going to stay with us here on. In last two years her mother and wife has given me lot of mental stress and they been quite ruthless and careless. My wife never want to go to my parents house also, this also created lot of pressure on me. At times I have tried suicide but somehow saved.

All n all, we want to get divorced.

What is the procedure? can this be done out side court like mutual consents? What Impacts it would create?

-Netri

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8 Replies

SHIRISH PAWAR, 7738990900 (Advocate) 02 December 2013

For any kind of divorce you have to approach court only. Divorce outside court is not legal. In your case your wife is asking for divorce so you can apply for mutual consent divorce. For further help you may contact me.

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Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 02 December 2013

Dear Querist

if you are Hindu then the divorce can be grant only from the court and if there is any custom in your society only then you can get divorce outside the court otherwise not. for divorce you can file a divorce petition before district court of area concerned. read the section carefully.

13. Divorce.

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the

1. Subs. by Act 68 of 1976, s. 6, for" or fraud".

2. Subs. by s. 6, ibid., for" the grounds for a decree".

husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) 1[ has, after the solemnization of the marriage, had voluntary, s*xual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) 1[ 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 other party, and whether or not it require or is susceptible to medical treatment; or]

(iv) has 2[ been suffering from a virulent and incurable from of leprosy; or

(v) has 2[ been suffering from venereal disease in a communicable from; or

(vi) has renounced the world by entering any religious order; or

(vii) 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 it, had that party been alive.

1. Subs. by Act 68 of 1976, s. 7. for the former cl.

2. Certain words omitted by s. 7, ibid

1[ Explanation.- In this sub- section, the expression" desertion" means the 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.] 3[

(1A) 4[ Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 5[ 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 5[ one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 6[ bestiality; or]

(iii) 7[ that in suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 , (78 of 1956 .) or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 .) (or under the corresponding section 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;

(iv) that her marriage (whether consummated or not) was Solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation.- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 .] (68 of 1976 .)

Laxmi Kant Joshi (Advocate ) 02 December 2013

engage a lawyer for you and file a mutual concent divorce in the family court jointly with your wife by making yours terms and conditions ( MOU) , and get rid from each other and live happy life .

Netri (Lead) 02 December 2013

OK.

Yesterday I came to know she might shift from my house with her mother and stay somewhere else in the city.

So:

-should I do any legal procedure before she leaves my house?

-I donot want her to my daughter with her, what can be done?

As she been working since last four years and she continues to work, what is compensation I have to give? Its weired but should I give money to her, its her who been toturing me all the while? Its me who was in trouble? she been asking money from me though she was earning.

SHIRISH PAWAR, 7738990900 (Advocate) 02 December 2013

You cannot stop her from leaving house but you can approach court. In respect of maintenance you cannot aviod maintenance for your daughter.

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Netri (Lead) 02 December 2013

So, But is she allowed to take my daughter with her without my permission? Can she claim my property(direct and parental)?

How fast a divorce can be settled? given mutual concent divorce.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 02 December 2013

file a custody case before court and get restriction order from the court not to take your child without permission of court. there is 6 -18 months time to decided MCD

(Guest)

The procedure for seeking a divorce by mutual consent is same under each Act, which is initiated by filing a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners present in Court, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required to reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, before filling petition are custody of child, alimony to wife, return of dowry items and litigation expenses which should be mentioned in their petition for divorce by mutual consent.

However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an inquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties. In recent times, the Courts have in some exceptional cases, done away with the 6 month waiting period and have granted divorce. There are various High Court judgments in this regard. However, it has now become a settled law that the Trail Courts cannot waive the 6 month cooling off period and it is only the Supreme Court in exercise of its jurisdiction under Article 142, can it waive the 6 month waiting period.

The Delhi High Court has held in the Sankalp Singh vs Prarthana Chandra case on 1 March, 2013, that the matrimonial court or the High Court has no power to waive the minimum period of six (6) months required to elapse between the first motion and the second motion and it is only the Supreme Court which can do so by exercising power under Article 142 of the Constitution of India. Where the Supreme Court finds an irretrievable breakdown of marriage it can do complete justice under the said Article: Numerous cases were cited by the Court in this regard. In India, there is no concept of out of court divorce. What all is out of court, a settlement to live separately & move for divorce from the competent court for legally dissolving the marriage by decree of divorce. In case there has been separation between husband & wife of more than one year, they both can file joint Petition for divorce by mutual consent in the District Family Court & seek dissolution of marriage by decree of divorce that will be granted to them by the court after six months of filling of the joint petition being satisfied that they have been living separately as husband & wife for more than one year at the time of filling the joint petition for divorce & there exist free consent of both for dissolving the marriage which was not withdrawn during the six months period after filling of the divorce petition.

Filing of the divorce creates a right on the woman to seek for temporary maintenance, during the pendency of the divorce petition in the Court (Section 24 of the Hindu Marriage Act). Also, when the marriage is severed by the Court, then the wife is entitled to seek permanent maintenance from the husband till the time she remains unmarried (Section 25 of the Act). The quantum of maintenance awarded to the wife depends on the qualification of the husband and wife, the living standard of the wife before being divorced, the income of the two, etc. also, you would be required to pay for the maintenance of your child.

-Regards

Advocate Pooja

www.lawkonect.com