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Nirali Nayak   08 June 2021

Divorce from wife

  1. Dear team,

My brother and sister in law got married on November 2020. One  day my sister in law went to her parents home because she wanted to spend time with them. One day when my brother checked her cupboard he found that she has taken all the gold jewellery and money with her. When we questioned her she said that she doesn't want to stay with my brother anymore and doesn't want to file divorce as well. She said she wont sign the divorce papers want to stay like this. My brother thinks she doesn’t wants to come back anymore. Please advise how can my brother get divorce on mutual, cruelty or desertion basis.

Thank you



 6 Replies

Sankaranarayanan (Advocate)     08 June 2021

Consult local lawyer and send notice to her. The local lawyer will guide you properly

P. Venu (Advocate)     09 June 2021

Seeking divorce or even sending a Notice would be a very very hasty step at this stage. it is not too late to try to reconcile.

Any hasty action is likely to boomerang.

T. Kalaiselvan, Advocate (Advocate)     09 June 2021

Since the marriage is not even one year old, your brother cannot think of filing a contested divorce on the grounds of cruelty so soon before completion of one year of their marriage.

For mutual consent divorce, they should have lived separately for a period of one year or more and she should agree for the proposed mutual consent divorce case, if she is not willing then your brother cannot force her to agree for mutual consent divorce. 

In any case he has to wait for one year from the date of marriage to take any decision on this subject.

 

Dr J C Vashista (Lawyer)     10 June 2021

Let your brother and other members of family reconcile, settle the matter amicably and enjoy married life which is just few months old and not a joke.

Do not consider any legal action, which is bound to spoil matrimonial institution.

There is no ground for divorce in the facts posted by you in any personal marriage / divorce law in India.

Vasundhara Singh (Student)     10 June 2021

Hello!  

The facts mention that the wife has left her husband without any reasonable cause and she is staying at her mother's place. The husband can file for divorce under Section 13(1) of the Hindu Marriage Act, 1955 on the grounds of desertion as she has left him without any justifiable reason and refused to come on the calling of husband. Desertion can be a ground of divorce. If the husband has suffered any mental torture or pain due to the behavior of the wife, he can claim divorce also on the grounds of cruelty.  

He can file the petition for divorce at family court stating the reason for divorce and if he does not want a divorce, the husband can apply for restitution of conjugal rights under Section 9 of the Act. If satisfied, the court will order the spouse to return to her husband's company as she has left without any reasonable cause and will be bound by the order of the court.  

Best regards  

Vasundhara Singh  

Priyanka Khosla   11 June 2021

  1. Section 13B of Hindu Marriage Act, 1955 specifies divorce by Mutual Consent. Your brother and her wife can only file for divorce on ground of mutual consent if they have been living apart for 1 year or more. This is the basic requirement which is meant to be fulfilled while filing for divorce under Section 13B.

Since your brother and sister-in-law have not completed one year of their marriage, they cannot apply for divorce under this ground.

One thing must be very clear, living separately does not specifically mean that they have been living apart. Even if they have been living together in the same house yet not acting as husband and wife, they are said be living apart. When such period of one-year lapse, your brother can contest for divorce.

But he would only be able to file for divorce on ground of mutual consent if his wife is ready to do the same.

 

  1. Your brother can however file for divorce on ground of Cruelty mentioned under Section 13(1) (ia) of Hindu Marriage Act, 1955. It is not necessary that cruelty has to be in form of physical force, it could be mental too. It is the duty of a wife to live with her husband and if she denies to do the same, it would amount to Cruelty on her part.
  2. He cannot file for divorce on ground of Desertion as the minimum period mentioned under Section 13(1) (ib) of Hindu Marriage Act, 1955 for desertion should not be less than a continuous period of 2 years.

 

If your brother still wishes to live with his wife, he can file for Restitution of Conjugal Rights under Section 9 of Hindu Marriage Act, 1955 which states that when either husband or the wife has withdrawn themselves from the society of other, the aggrieved party can file for their Restitution of Conjugal Rights. If the court is satisfied with the facts of your case, it would order your sister-in-law to return back to her matrimonial house.


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