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Abhi (Analyst)     11 December 2010

Is Prior seperation of 1 yr is needed for filing Divorce

I have been married for the past 6 yrs.After 6 yrs of match,trying to compromise and stabilse the relationship,we couldnt get sucess and finally seeking for divorce mutually.

We dont have kids.

Can you please tell me for divorce prior seperation of 1 yr is needed between husband and wife for filing it.,

Awaiting for your kind reply



Learning

 15 Replies

Adv Archana Deshmukh (Practicing Advocate)     11 December 2010

Yes, for filing for divorce by mutual consent, the parties should have been living seperate for one year or more prior to the filing of the petition.

D.V.RamaKrishna (Advocate)     11 December 2010

One of the condition for making a petition under seciton 13-B is the parties must have been living separately for a period of one year or more. But the expression "living separately" connotes not living like husband and wife. If the husband and wife, though have been living under the same roof by force of circumstances, they may be living separately and not as husband and wife due to differences between them and with no possibility of reconciliation.

So it is for the petitioners to prove that they have been living separately and not as husband and wife thought living under the same roof

1 Like

N.K.Assumi (Advocate)     11 December 2010

Dear Archana, can there be a rule laid by the High court for entertaining petition for divorce before the elapsed of one year in exceptional case? Or is it mandatory for i year of waiting. Divorce is difficult but waiting is the worst period? Divirce burnt the dead but waiting burnt the living right?

Adv Archana Deshmukh (Practicing Advocate)     11 December 2010

The provision is contained in S.14 HMA, the petition can be presented within one year, if the petitioner can show exceptional hardship or the case is of exceptional depravity on the part of respondant. The petition for permission can be filed in accordance with the rules made by the HC in that behalf.

Ravikant Soni (LAWYER IN JAIPUR)     11 December 2010

what does mean "exceptional hardship" or "exceptional depravity"?? 

Is it defined in hindu law of in judicial references??

Abhi (Analyst)     11 December 2010

Sir , I have a question My Marriage was never regsitered in court of law,so while filing for divorce wht do i need.

Moreover if we both file mutually for divorce and after 6 months she dont turn up ....then wht steps can i take.Can i go ahead and start my life a new.

Need ur kind help

Adv Archana Deshmukh (Practicing Advocate)     11 December 2010

Even if the marriage is not registered, you can file other evidence of marriage such as marriage invitation card, photographs etc. If your wife does not attend the second motion then, divorce will not be granted. You cannot remarry without a valid decree of divorce, otherwise it would be bigamy. 

Abhi (Analyst)     11 December 2010

Thanks Madam,

But she is not even interested to stay ,neither she wants to relieve me.She is not even interested to  go for settlement.I dont understand whths the case may be.

In such scenario what can i do.Do i need to wait till her mind change  or is there  any clause in the court of law , that i can seek justice on it.

Awaiting eagerly for ur reply

Adv Archana Deshmukh (Practicing Advocate)     11 December 2010

Try to convince her through mediation of relatives of friends. If not possible then, after 2 years of seperation you can file for divorce on the ground of desertion in such a case.

Ravikant Soni (LAWYER IN JAIPUR)     12 December 2010

Archana ji,

My question still unanswered..

 

what does mean "exceptional hardship" or "exceptional depravity"?? 

Is it defined in hindu law of in judicial references??

Adv Archana Deshmukh (Practicing Advocate)     12 December 2010

@Ravikant Soni jii,

S.14 of the HMA provides that the,  Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. 

The words, exceptional hardship or exceptional depravity are not defined in the Act, but from the circumstances of the case, it can be inferred whether, it would cause hardship to the petitioner if permission is denied. There may be various judgements in this regard, for eg- in a case of Mutual Concent Divorce - TARUN KUMAR VAISH versus MEENAKSHI VAISH, the Delhi HC have allowed the petition to be presented within 1 year of seperation where the marriage was not consummated, & it was contended that the parties have irreconcilable differences between them and that they will suffer mental as well as physical hardship on account of the continuation of their marriage. It  was also submitted that the families of both the parties have already initiated the process of re-marrying them.

Ravikant Soni (LAWYER IN JAIPUR)     12 December 2010

I think the period described in sec 14 is deferent from the period of 1 yr separation before filing of pet. u/s 13b. NO??

N.K.Assumi (Advocate)     13 December 2010

Dear Ravikant, I am of the view that Archana has correctly stated the statements of law. The period of one year provided in section 14 of the HMA is to laid down fair trial being given to every marriage. It is expected that within one year the friends and near relations of the parties to persuade them to buried the hatchet with emphasis on reconciliation and when it is disclose that they can not live together and no more leave should be refused. Regarding your exceptional Case under the SMA as well as the HMA pregnancy per allium is a ground for annulling the marriage and one year restriction does not apply. It has been laid down by philips' in Divorce Practice, states that ... leave to present petition before the expiration of waiting period is given where a young wife is treated cruelly and callously from the outset of her marriage, or where the respondent flagarantly disregard the marriage by living in adultery and leaving the petitionet (husband or wife with small children to look after.Thanks Archana for the contribution.

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     14 December 2010

All these limits should be relaxed.When two persons can marry without any waiting period then why to wait for 1 year.

It should be 3 months only.

The total divorce proceedings till decree should be over within 1 year of filing application for divorce.


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