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Somnath Mallick   30 May 2023

Divorce on the grounds on separation.

Hello Everyone,


My sister-in-law is looking for file for a divorce. But the husband is unwilling to go for the mutual option. And he also wants custody of the daughter. Before I go any further, I just want to give you some background.


1. They got married at a very young age. 20 and 21 if i recall correctly. Both of them at the time, didn't have a stable income to be honest. A bit naive if you ask me.

2. After the marriage, the husband continued to be useless at home. And it was the wife's income that sustained the family. The husband did odd jobs here and there and nothing permanent that could qualify him as being called a "bread-winner"!

3. The marriage somehow lasted for like 7 years. But in 2021, the wife threw the husband out of the house, coz he attacked some other dude with a knife who had feelings for the wife. Since then they have been living separately. The husband could have been serving jail time now coz of "attempted murder" charges. But he got saved, coz the guy didn't want to press any charges.

4. Since then the wife and the daughter have been living a decent life without the husband.

5. She says that over the years there have been a lot of mental harassment, nothing physical but all psychological. When i ask her about it, she ignores it, so i didn't press her on the matter.

6. Now 3 years on, she finally is ready to file for divorce. So we all went to a lawyer to discuss the matter.


The first lawyer we went to said, since you have been living separately for so many years, and the husband is not going to agree on a mutual divorce. It is best to file a domestic violence case and a 498 case against him, just to create pressure on him to go for a mutual divorce. Otherwise it may drag on for ages. And when the husband agrees to a mutual divorce, just withdraw the cases. On top of that, she is also looking for some child support from the husband, because she is turning 6 now, and with her education and college and everything in mind, she is looking to get some maintenance for the growing child. The husband has not contributed much, if at all, to the upbringing of the child till now.


Now the second lawyer we went to, said that since you have been separate for so long, the court will readily grant you a divorce. There is some new law about it (which at least I never knew). No need to file for a case and all that stuff.


Now I am not sure who to believe. From what I understand, the law should be the same, but two lawyers are saying completely different things here.


Any advice on this would be really helpful. If you need any info and i am sure I missed out something, please ask.




 5 Replies

Sudhir Kumar, Advocate (Advocate)     30 May 2023

There is ground to file divorce.


filing 498a and thennwithdrawal is not easy way home.  only high court can allow so.

Somnath Mallick   30 May 2023

Thanks for the advice. I forgot to add that the divorce will be filed in Siliguri, West Bengal, if that means anything.

Advocate Bhartesh goyal (advocate)     30 May 2023

You may file divorce petition on ground of desertion and cruelty. Don't  file complaint u/ sec 498 A of IPC , as it will create your sister in law case complicated and lengthy. 

ABDUL RAZIQUE (Advocate)     30 May 2023

There is a better way to file divorce petition in the district court of your jurisdiction on the ground of desertion and cruelty. If you file 498A and Domestic Violence case and or any criminal case against husband, then both parties will suffer and it took long time to get proper order. so my personnel advice that don't act like foolish and follow the advice of our respected experts. 

Shashi Dhara   01 June 2023

Issue legal notice to co-operate for divorce through mutual consent if he disagree with reply notice file maintenance case for both mother and child u/s 125 crpc and take decree and also file for divorce.

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