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indira (abc)     05 June 2010

seeking divorce

I have certain queries regarding divorce. This is about a couple who are married since 2and half yrs & dont have any kid yet.

Could you be pls kind enough to answer the questions separately as it is asked like pointers.


What if wife wants divorce on grounds that she is being tortured mentally & physically by husband.But it is for sure that he will not give divorce just to trouble her & her family.

Can the wife stay separate (not at her parents' home,as she doesn't want them to get troubled) &apply for divorce?

Can the reason that husband had illicit affairs before marriage & had aborted his mistress' child twice but now the wife isnt sure whether he still has some other affairs.so is this enough reason to file for divorce?

Can the husband file for divorce if because of above mention affair, wife decides not to have child with husband?

Is it so that even if wife doesnt want to have child ever law can force her if husband wants it?

Can wife go for tubectomy without being mothered not even a single child?

Is divorce mandatory even if marrige was performed with Hindu rituals but it wasnt registered in marriage court?

Is divorce mandatory even if wife doesnt wish to get married again?

What if wife wants to stay separate & alone throughout her life(not even with her parents as it will be trouble for other siblings' marriage and of course the society in which they live its shameful thing to go for divorce) & doesnt want any alimony or any thing from her husband & just wants herself to be left alone throughout.Can any law force her to stay with husband or that she has to stay at her parents home & not anywhere else?


What if after staying separate & not taking divorce if after some years wife wants to marry & husband has gone abroad & settled & she knows that he would not even  bother to know about her.so inthis situation can she get married to someone else ?

What if we know that we both have moved on in our lives & it doesnt matter that we both have got married for the second time.Again if its husband's ego still not to give divorce,then still is divorce required to be taken to be legal wife for the second husband & he legal husband for his second wife?Can the second marriage be registered without first divorce?Since the husband would not come to say that "she is still my wife &i havent divorced her"?

Also can you suggest good marriage counsellors in Mumbai?

 

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Pankaj Mehta (Advocate)     05 June 2010

very detailed queries have been asked, which can't be described in detail, briefly to say if both the parties are belonging to hindu community and the marriage was solemnised as per hindu rituals & customs, they will be governed by hindu marriage act always and in this case wife should file divorce without any hesitation stating in detail all acts of crueility & tortures made by her husband, also taking ground of desertion it both the parties are living separate since last two years continued. 

if wife doesn't adopt any legal action, she can not remarry till life time of his husband without getting divorce decree from competant court, husband can file petition for restitution of conjugal rights against her wife, forcing her to live with him, in that case too, wife can file counter petition demanding divorce.

proving acts of cruelity & character of husband before the court needs strong documentary & oral evidence, wife can choose to live separate from her husband & her parents too, it will be more better to file divorce petition along with application for interim maintenance u/s 24, dont worry for willingness of husband about divorce, it is subject matter of trial and evidence placed by both the parties. choosing tubectomy  without filing any petition may give rise a defence to husband, so dont choose this remedy at instant & can be done after lawful separation

For other detailed enquiries, you can approach a good, reputed civil lawyer practicing in your area


(Guest)

no she cannot undergo tubectomy . there has to be husband's consent for it.


(Guest)

What if wife wants divorce on grounds that she is being tortured mentally & physically by husband.But it is for sure that he will not give divorce just to trouble her & her family.

She can file petition on the ground of cruelty.  Whether she succeeds or not does not depend upon the whims and fancies of the husband but depends upon the evidence she leads before the court.

Can the wife stay separate (not at her parents' home,as she doesn't want them to get troubled) &apply for divorce?

Yes. She can.

Can the reason that husband had illicit affairs before marriage & had aborted his mistress' child twice but now the wife isnt sure whether he still has some other affairs.so is this enough reason to file for divorce?
 

Yes.  Under Section 13 (1) (i) - "has, after the solemnization of the marriage, had volunatary s*xual intercourse with any person other than his or her spouse;" she can apply for divorce.  Further, his above said actions, if proved before the court, be treated as cruel acts for granting divorce to the wife.


Can the husband file for divorce if because of above mention affair, wife decides not to have child with husband?
 

He can file the divorce petition on the above said grounds, but difficult to succeed.


Is it so that even if wife doesnt want to have child ever law can force her if husband wants it?
 

No.


Can wife go for tubectomy without being mothered not even a single child?

Yes.   I differe with Mr. Swatir on this point.



Is divorce mandatory even if marrige was performed with Hindu rituals but it wasnt registered in marriage court?

Yes.



Is divorce mandatory even if wife doesnt wish to get married again?

No.  But she must be quite sure that she will not be going to marry again.



What if wife wants to stay separate & alone throughout her life(not even with her parents as it will be trouble for other siblings' marriage and of course the society in which they live its shameful thing to go for divorce) & doesnt want any alimony or any thing from her husband & just wants herself to be left alone throughout.Can any law force her to stay with husband or that she has to stay at her parents home & not anywhere else?

No.  She can.  If the husband moves the court for "restitution of conjugal rights" and gets a favourable decree, then also, she can simply ignore.  No force in this world has got the power to force the estranged couples to live together.  But,  if he forces himself physically in the place, where she is residing separately on the ground that he is a legally wedded husband, it may be awakward situation for her.  For that, is she does not want to get divorce, she can seek "judicial separation" to avoid such situations.


What if after staying separate & not taking divorce if after some years wife wants to marry & husband has gone abroad & settled & she knows that he would not even  bother to know about her.so inthis situation can she get married to someone else ?
 

Legally No.  It is better to get divorce in such a situation.


What if we know that we both have moved on in our lives & it doesnt matter that we both have got married for the second time.Again if its husband's ego still not to give divorce,then still is divorce required to be taken to be legal wife for the second husband & he legal husband for his second wife?Can the second marriage be registered without first divorce?Since the husband would not come to say that "she is still my wife &i havent divorced her"?
 

Yes.  Divorce is required to be legal wife for the second husband.  Yes.  For him also divorce is required to have another wife legally.  No.  Second marriage cannot be registered without the divorce of first marriage.    One may manipulate it by giving false declaration that he/she is not married earlier, at the time of registration of second marriage, but is has got severe criminal repercussions, if estranged partner or his/her near relative files a criminal complaint. 


Also can you suggest good marriage counsellors in Mumbai?

Sorry. 

mrgop (Owner)     06 June 2010

Originally posted by :Pankaj Mehta
"
For other detailed enquiries, you can approach a good, reputed civil lawyer practicing in your area
"

Just curious about why do people reommend civil lawyers for divorce cases? Does it mean criminal lawyers dont have expertise in such cases? As far as I know, both study same subjects in LLB, but what does make them different? 

Pankaj Mehta (Advocate)     06 June 2010

Mr.mrgop,

firstly let me know you are a practicing lawyer or not?

A lawyer who had spend years & years for getting expertise and command over a speciality such as criminal matters can not handle other specilities such as civil, revenue & other civil litigations so skillfully

Why do tax practitioners doesn't deals with civil & criminal matters when they have studied the same subjects??

there is a large distinction between lawyers practicing at high courts/ supreme court and at trial courts too..

 

Pankaj Mehta (Advocate)     06 June 2010

Very well explained by Mr.Prabhakar and i request mr. Prabhakar to resolve curiosity of Mr.mrgop

mrgop (Owner)     06 June 2010

Originally posted by :Pankaj Mehta
"
Mr.mrgop,

firstly let me know you are a practicing lawyer or not?

A lawyer who had spend years & years for getting expertise and command over a speciality such as criminal matters can not handle other specilities such as civil, revenue & other civil litigations so skillfully

Why do tax practitioners doesn't deals with civil & criminal matters when they have studied the same subjects??

there is a large distinction between lawyers practicing at high courts/ supreme court and at trial courts too..

 
"

Thanks pankaj, I know expertise in each filed is a big factor in being successful in both criminal and civil cases. I see there are well known  criminal lawyers and civil lawyers handling cases only from their field. But I couldn't see any good lawyers handling family cases only, and could see both civil and criminal lawyers in family court. I think the reason is that the Family Law, even though its a part of civil law,  is a small one compared to civil and criminal so lawyers in both fields master it easily. I also heard that lawyers handling only family cases are 'caseless' lawyers who are not not successful in their filed. Most of the family cases are coupled with criminal law ie DV, 498a etc at the initial stage or later. So, would it be better if criminal lawyers handle family cases?

Pankaj Mehta (Advocate)     06 June 2010

thanks, you better knows about the distinction, i didn't mean here that only civil lawyers should handle family/matrimonial cases, material thing is expertise which we can expect much better by civil lawyers in these matters. whatsoever type of lawyer engaged, he must be well acquinted with personal laws for securing the interest of the parties at large. I am also handling these kind of cases along with criminal matters and much more things are there to be learned, to win over, more we prepare more we get results.

indira (abc)     07 June 2010

thankyou Mr.Pankaj n Mr.Prabhakar for your replies

Anil (SD)     07 June 2010

Hi ,

My Name is Anil .My divorce petition is pending in  court since 2006 and now we have both have agreed to go for mutual constant .This month we are filling the 2nd motion and after that i will get the divorce.

From last two years i am staying away from my home town with living in relationship. We have one child also.

As i getting the divorce from court .I want to marry with that lady and wanted to go outside from india. Below are my queries.

1-How will i get the marriage certificate .

2-What date i should enter in passport for the marriage and son date of birth.

3-How soon i can get married.

indira (abc)     07 June 2010

well there's one more problem now

in t he above case now the husband says that in a week's time he is leaving for out of mumbai(but in Maharashtra,but still dont know which place for job.

since husband n wife were staying staying  separate in a rented place.Now  as husband is leaving the wife n going,which address will she send summons etc .as he has not told the address still of his new place of work.can the wife send it to in laws address which is also in Mumbai.But can police forcibly ask them about their son's address or no.

what if wife doesnt get the address then how divorce would be filed? 

Husband has mentioned that he wont give divorce mutually and to file for it if wife wants

I would like to know it is so that it may take 4-5 years or probably more for divorce and what about expenses.How much the expenses would be for hirinh lawyer etc.Do lawyers also charge for first meeting when we have just gone to them to discuss the case and whether they hsve taken the case or no.

As mentioned in the post above she cannot stay wid parents to take help.Whatever she will earn ,she has to fend for herself.then how would she fight the case?

Can she  stay with her relative or friend who can help her?If husband finds about this can he harm that relative or friend lawfully that they should not give refuge to his wife.I mean can he file a case against them?


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