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R K........ (Analyst)     20 October 2012

Minimum time period for filing divorce case

Respected Experts

I want to know that what is the rule for filing divorce

As per rule, is it 1 year after marriage or 1 year seperation that we can file divorce

e.g I had got married in Oct'11 and got seperated in Apr'12, so as per law when can i file the dovorce petition

I am not in a hurry, i want to delay the filing of petition as much as possible, so if girl side force us to file in Oct.. Can we say that as per rule, we can file in Apr only ?



Learning

 11 Replies

adv. rajeev ( rajoo ) (practicing advocate)     20 October 2012

two years from the date of sepewation

Tajobsindia (Senior Partner )     20 October 2012

[I] For the time being below is the factual Law re-told to her / her side as and when basic need arise;

 

S. 14 in The Hindu Marriage Act, 1955

 

14. No petition for divorce to be presented within one year of marriage.

 

(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, [unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage: Provided 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, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

 

(2) In disposing of any application under this section for leave to present a petition for divorce before the [expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the [said one year].”

 

 

S. 13 B in The Hindu Marriage Act, 1955

 

"13 B Divorce by mutual consent

 

(1) Subject to the provision of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together,whether such marriage was solemnized before or after the commencement of Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

 

(2) On the  motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree]"

 

 

[II] However as per S. 13 B of Hindu Marriage Act one year period of sepration from the date of marriage is required for seeking divorce by mutual consent and not one year from the date of marriage. Whereas as per S.  14 (1) of the Hindu Marriage Act, the one year period of sepration can be waived in hard and exceptional circumctanses


(Guest)

Hi tajobs

Same question as RK.

If there is no extreme hardship or exceptional circumstances then can husband nake wife wait for one year separation to complete even if she is bent to immediately file divorce??


(Guest)

A divorce petition can be filed even within a week after marriage if there is extreme hardship which has to be pleaded specifically. In the absence of extreme hardship a petition for divorce is not maintainable before a year from marriage. What constitutes extreme hardship depends upon the peculiar facts and circumstances of the case.

 

 

Ashish Davessar

Advocate

Supreme Court of India

Punjab and Haryana High Court

1 Like

(Guest)

Hi Ashish

Can you please answer to first querist (RK)

His question was that in case of MCD when th divorce can be filed? After 1 year of marriage or separation?

R K........ (Analyst)     21 October 2012

Thanks everyone..

As per Tajobsindia statement, I think its one year from date of seperation and not one year from date of marriage

So if a lawyer from girl's side calls me an says that we have to file petition in Oct, so can i say him confidently that the rule if one year after seperation, so we cant file it before April ??


(Guest)

Hi RK

I have sent you a PM. Please reply there.

Rgds


(Guest)

@fight with 498A.

I have answered the question. My answer envelopes the legal position as regards contested as well as mutual divorces. 

1 Like

(Guest)

You seem to be wrong here.

For mutual, its one year after separatikon when you can file the divorce.

R K........ (Analyst)     21 October 2012

Dear Ashish,

Its one year after seperation and not one year after marriage

Read the following links for your clarifications

https://www.crisp-india.org/laws/60.html

https://www.manushi-india.org/pdfs_issues/PDF%20140/03%20kyr%2024-25.pdf

 

Satish Mishra   10 March 2017

It is can only be filed after 1 year of valid marriage not prior to this unless in exceptional circumstances where parties persists to face hardships and depravity, courts on HC directions can grant a decree of divorce but it is a rare phenomenon. 


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