Civil Procedure Code (CPC)

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Mona (client servicing)     25 January 2012

Divorce to be filed

I got married 10 yrs ago..........it was a love marriage. I am a muslim and he is a hindu. We got married by VHP where i was first made to change my religion n become hindu...........after tat we got our registration done. From the last 8 yrs i have been in USA with my hubby..........now m back in bombay at my parents place. 

He has been mentally torturing me because as per my visa I was not allowed to work in USA and so financially dependant on him. Also I have a 6 yr old son. My hubby has kept my son with him in USA and has not allowed me to bring him with me.


Please help.........need to know what steps to be taken. I stayed with him for 8 yrs in USA and took care of the house and son...........but now i dont have my son also and I dont have a career either



 41 Replies

Shantanu Wavhal (Worker)     25 January 2012

after 8 yrs of marriage + 6 yrs child, ur alligation of mental harrassment seems doubtful.

AEJAZ AHMED (Legal Consultant/Lawyer)     25 January 2012

The Special Marriage Act-1954 .

27. Divorce.-(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-

(a) has, after the solemnization of the marriage had voluntary s*xual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind, and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation- In this Clause- 
(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form; or
(g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive;

Explanation- In this sub-section, the expression "desertion" means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1-A) A wife may also present a petitioner for divorce to the District Court on the ground.-

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) that in a suit under Sec. 18 of the Hindus Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974), or under the corresponding Sec. 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.

(2) Subject to the provisions of the Act and to the Rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to the District Court on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

27-A. Alternate relief in divorce proceedings- In any proceeding under this Act, on a petition for a dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the ground mentioned in Cl. (h) of sub-section (1) of Sec. 27, the Court may, if it considers it just so to do, having regard to the circumstances of the case, pass instead a decree for judicial separation.

28. Divorce by mutual consent.-(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court by both the parties together 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 the 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 District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the avertments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.


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38. Custody of children.-- In any proceeding under Chapter V or Chapter VI the District Court may, from time to time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.

Ranee....... (NA)     25 January 2012

Originally posted by :Amit---------------
"
after 8 yrs of marriage + 6 yrs child, ur alligation of mental harrassment seems doubtful.
"

why?

1 Like

(Guest)

Can't Believe Sometime After 8 years of Marriage with Child, is Life heading towards Divorce...

Whhoooooppps. :(
May god Bless you


(Guest)

Dont hear your parent's voice ,hear your intution,your 8 years good experience that you spent with your husband .what you do in india?divorce ?Its not easy better try to mediate the matter.

1 Like

Shantanu Wavhal (Worker)     25 January 2012

@ the author, 


u should have contested her TP.

Orders under Section 24 C.P.C., seeking transfer of proceedings, should not be made as a general rule but such orders of transfer may be required to be passed in exceptional circumstances only.


there are several judgements regarding this.


be vigilant now onwards.


Mona (client servicing)     26 January 2012

Why do u think it is doubtful............it is true tat he never physically assaulted me nor did he misbehaved with me in public.............but regularly taunting your wife and showing off your money power is also a kind of torture. And it is not tat I cannot work........i am a graduate and could have easily got a job in India...........it was only because of visa restrictions tat i could not work in USA. and then I have a son............it is not easy for a girl to walk out of a relationship when she has a kid too.................she tries and tries to mend it always. However there is a saturation point..............which i have reached now

Shantanu Wavhal (Worker)     26 January 2012

Oops !

above message posted in wrong thread.

oppologies.

Shantanu Wavhal (Worker)     26 January 2012

regularly taunting your wife and showing off your money power is also a kind of torture

 

cruelty can be a ground for divorce; if proven in the court with strong evidences.

if husband contests, it may take 2 / 5 / 10 ... no. of years to get divorce ...


so think again !

1 Like

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     26 January 2012

Dear Mona

if you want to punish him, you can file a criminal case against him under section 498A, IPC and file a case for maintinence & Parmanent Alimony under section 125 Crpc,  section 24 & Section  25 of Hindu Marriage Act, 1955you can also filed a case for your son's custody under section 26 Of Hindu Marriage Act, 1955.

Feel Free to call

Mona (client servicing)     26 January 2012

Mr. Nadeem........if I file a criminal case I will also need to prove it............and how do i do tat. What he has said to me is not recorded by me nor was it said in front of people.

Cant I just file for divorce and ask for alimony as we went to USA to give a boost to his career and in the process i sacrificed my career?

Shantanu Wavhal (Worker)     26 January 2012

if u file criminal cases, u have to throw alligations & prove with evidence that ur alligations are not false.


u can file for divorce on the basis of cruelty. if ur alligations are proven, u will get divorce.

 

as the husband's career is already boosted up (because of your sacrifice) & he is earning in dollars, u will be granted HUGE financial relief.


(Guest)

@Mona 

Although  you are in India, you can get spousal support/alimony for 50% of the length of your marriage from the US courts. 

You can get visitation rights. US courts can order father to take the child to India at his expense. 

Please send me an email with your story - reachadamkumar@gmail.com

US courts are gender neutral and fair and you can hope to get more than what you would hope. 

Please provide the following informaion

1. Which State, County is the father residing

2. Is there any child abuse or any criminial charges against you. 

3. Do y


(Guest)

...contd

3) Do you have the fathers SSN , childs SSN


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