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Sandeep Jain (NA)     30 June 2010

Divorce for wife whose husband is in jail

I know of a girl whose husband has been accused of rape of a minor girl and is in jail (judgement pending).

She wants to divorce this man. Is there grounds to do so because of the above fact. How will her husband contest the charge if he wants to & would he be able to stall her divorce application?


 6 Replies

Sandeep Jain (NA)     30 June 2010

And I would also request recommendations of a lawyer in Mumbai or Navi Mumbai with experience in handling such cases. The girl is from a middle class family, so charges should not be exhorbitant. Having said that she is ready to pay for a good lawyer.


1. If he is convicted then it could be facts leading to mental cruelty grounds and she will get easily Divorce.

2. She has to wait till Judgment is announced otherwise he may contest her moves.


Devesh A. Bhatia (Advocate)     03 July 2010

US 13(2) ii HM Act she can easily get divorce if her husband is convicted. I agree with Mr. Arun Kumar that she can also file a petition on grounds of mental cruelty but if the person is not convicted her petition will lose weight as well. 

Pranjal Srivastava (Lawyer)     04 July 2010

Sec 13 (2) (ii) of HMA Lays down that

"A wife may present a petition for Divorce if the husband is, after the solemnisation of their marriage , guilty of rape, sodomy ,or bestiality"

Where the husband was guilty of any of the offences, prior to petitioner's marriage, The petitioner can not claim for divorce.The offence must be subsequent to the petitioner's marriage with the respondent.

An attempt to commit rape ,sodomy, or bestiality is not a ground for obtaining the decree of divorce {Page 140 Modern Hindu Law by Dr.U.P.D. Kesari}


It is not required of the wife to prove that the husband had actually had been punished for such offences. Mere proof of such a misconduct on his part is sufficient to enable the wife to get the decree of divorce.{Page 141 Modern Hindu Law by Dr.U.P.D. Kesari}



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Sandeep Jain (NA)     04 July 2010

She is Muslim. Her husband misled her into believing he was single about 6-7 years back when she was only about 12-13. He married her through an affidavit in which her age was misdeclared by him as 20 years and they have some kind of marraige certificate as well.

He seems to have an attraction for minors and now is in jail as he has been accused of rape by another minor girl whom he employed for his house work.

Pranjal Srivastava (Lawyer)     05 July 2010

Dear Mr. Sandeep

 There is no such provision inTHE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939   as similar as specially mentioned in HMA Sec 13 (2) (ii) But


 A woman married under Muslim law shall be entitled to obtain a decree for the    dissolution of her marriage if the husband has been sentenced to imprisonment for a period of seven years or upwards;



(viii) that the husband treats her with cruelty, that is to say,-

         (a) habitually assaults her or makes her life miser- able by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

        (b) associates with women of evil repute or leads an infamous life, or 

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