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cruel spouse unwilling to divorce

I have a cruel husband, who I believe is mentally unstable as well. He and his family used to torture me when we were still living together. We have been living separately now for around 5 years. I recently filed a divorce petition on grounds of cruelty. After a few dates, the judge asked us to go for mediation. In the mediation he basically said that he didn't want a divorce as he did not want to remarry. He doesn't care about the custody of our son or anything else. 

Although all I want now is a peaceful divorce he is hell bent on making things as difficult as possible. I really dont want to spend the next few years of my life fighting out this divorce in court. I want to let bygones be bygones and move on in life. What other legal recourse do I have to get this divorce quickly. I have heard that I can file cases under sec 498A and the Dowry act and  make it a condition that he agrees to a mutual divorce before relieving him of these (true) charges. Does that make sense? Anything else I can do?

Any advice would be tremendously appreciated.


Dear Mrs Archana

The one and only way for getting divorce for you is to proceed with the divorce petition that you have already filed. Giving the advice of mediation is the duty of the Court. If that fails then the Court must proceed with your petition. The burden of proving cruelty is solely upon you. So my advice for you is not to loose patience. If you can prove your husband's cruelty, then whether your husband is willing or not, the Court shall grant divorce.

You can file a complaint u/s 498-A IPC if he still dealing with you with cruelty - either mentally or physically. The burden of proving such cruelty is upon you again. You should  not opt for filing the case only to compel your husband for divorce. This might not serve your purpose. You must take the counsel of your lawyer before filing any such complaint. I suggest you proceed with your case sincerely rathar than multiplying your litigations.

All the best.

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Senior Partner

@ Author

Read your briefs and it is a stalemate classic civil matrimonial case scenario wherein one spouse wants divorce and other spouse does not want so what shall the opening spouse do? While reading further down I also noticed bad advise given to you on criminal cases filing and sum total what I feel is that ‘grounds’ of divorce as alleged in your plaint are bit shaky that it is not able to stand the silver test before Bench thus delay and latches may be happening and introspectively his side is also aware of weak plaint of yours!

However above observation comments apart what caught my antenna is your saying that “he says he does not care of custody of child’, wait a minute, did you ponder on this crucial piece of statement ever! I bet no, reason being frustration to get faster way out of the situation that civil litigants miss out on such crucial ‘confrontation’ statements over heat of crowded courts moments, when unconsciously uttered by one side to such litigation. That is where the catch lies.

Advise is to file a simple Guardianship / Custody suit for your son and get him (husband) to witness box and get recorded his above statement and once Judgment on Guardianship is announced in your favor (since he being natural guardian is showing moral irresponsibility’s to his own flesh and blood) you have the divorce suit in your favor. How? When his above statement under Oath is elicited at Box take certified copy of the same and immediately file an amendment of divorce plaint application to include this as one of the additional grounds of “mental cruelties” and thus the divorce case is now on strong footings. Well, there are different aspects to “mental cruelties” in each and every case scenarios and each case are one of its kind if properly adduced before Bench. However you also need to file a separate application for speedy trial on time bound fashion irrespective he come or not to the Board. Remedies are there in such situations instead of further getting entangled in web of criminal charges which are very difficult to prove provided the 5 years gap you are stating under criminal jurisprudence (Limitation Act is one cause of worry here) and he may get acquittal from such criminal charges after all, yet you still be left minus a decree in divorce proceedings with extra baggage of more frustration and piling ld. Advocates legal fees. Remember civil litigation is a art and not a rocket science that you start using different fashionable formulas (as per whisper of various vested interests and on overhearing gossips of society) and mind it various Courts do not take them (means criminal charges) lightly now-a-days!

Honestly pursue above suggestion it is said in your own benefit and better to avoid multiplicity of cases. 

Total likes : 1 times

Legal Consultant / Solicitor

Better focus only on the divorce case and not to proceed with any false or criminal case as the focus will be deviated.

Pending the divorce case, file an interim maintenance application for yourself and your son and also for legal  expenses. If really your husband dont want divorce, he will contest the case. Otherwise will come with option for divorce


Archana ji,


You have raised a really a BIG and GRAVE issue, a real 'grey matter', in subtle words



You wrote "We have been living separately now for around 5 years. I recently filed a divorce petition on grounds of cruelty. After a few dates, the judge asked us to go for mediation. In the mediation he basically said that he didn't want a divorce as he did not want to remarry. He doesn't care about the custody of our son or anything else. "


Females themeselves strikeout / discount their husbands as incapable to look after their kids in their absence ..... Then why would husband challenge that?  :).... In fact husbands happily agree to it!!!



Aren't you beating around the bush?



Real fact is you want to get rid of husband and also want to have a fresh start but for that you intend to shed cumbersome baggage if possible as well without hurting anyone's feelings, emotions as well as rights.  It is a major factor if one wants a fresh start.



But you are a practical and strong woman who can boldly say that ................... 'if kids in broken marriages can stay, grow-up without a father's care, can't they grow without a mother's care?   Aren't there any families where someone's mother gets expired after evn pregnancy?' 



There is nothing wrong as well and a real sign of parity of genders in abilities, First thing is that one should not have a guilty feeling while thinking like this ....  But one needs to take some more precautions .............


Why female are grappled with this emotional limbo that .............. if marriage breaks-up, automatically they are supposed to carry the kids along? ...  But it is what practically happens!!


Or rather females separate out in such a manner that .... on this front .................. they inadvertantly go on closing the back doors!!


If females try to win gender sympathy, project a cruel picture of husband, and play badmouth against him, then how can they expect husband to come forward to take custody of kids?  ...  even courts would find it absurd!!!


One should be sensible enough to say that husband is a Good Father!!



Is this your agony that "he isn't fighting/comming forward over the custody of his son?"



Probably you want to get rid of marriage as well as any links to your husbands (ad hence also would agree to give custody of sone .... But husband isn't insisting on it!! Is that the dilemma? )  .................. It is a fact and stark reality that .......... remarriage options for women get narrower if one carries along the baggage of offspings from previous marriage and adoption issues often remain unresolved.



I am not making any bias against your practical thinking .... But The problem is with women that ................ whenever they separate out from husband over a fight  ..................... they tend to drag their kids along .............................................. as if it is female's sole duty to care for kids  ........................... and they themselves relinquish husbands from their burden/duty to look after their kids. 


The alienation of husband from kids wins them sympathy in society but it gradually diminishes the chances for females to offer the custody of kids to fathers/husbands. Reason ?  .. even kids start viewing father as cruel man and dislike to be with him.


IF females handle this issue with care and sensibly, females won't be blamed for abandoning kids as well as    their husbands would also come to a realisation  .................  what it takes to bring-up, look after a child!!  ...... 



And it may turn out .................... as a surprising outcome ................. that both spouses understanding mutual expectations and problems of each other and  probably reconcile.



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498a may buckle your husband to give up and concede. But that may not help you afterwards.


Husbands get sympathy

They say that "wife filed 498a and harrassed me and hence I had to take that difficult decision although i had a kid!!" Then who becomes the cruel person in the eyes of society?


Fight case on merits or convince him for mutual consent.


Keep cool and you will find many ways to come out of your present problems.

Private Service

@ Advocate Arif Iqbal

"You should not opt for filing the case only to compel your husband for divorce"

You are first ethical lawyer I have seen in a long time. Good to see lawyers advicing on a case to case basis and not encouraging false Dv & 498A cases. Keep up the good work !!




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