• Pushed into marriage and wife's family is refusing divorce

I was pushed into marriage and haven't spoken to my wife since the marriage 1 year ago. I went to india last month and expressed I want a divorce. I hold a 457 visa in australia and abojt to apply for residency. I feel my in laws are using me to get their daughter abroad. I'm not incline to take care of her and advised her father to end this marriage and not to further spoil his daughters life which he disagreed. I'm lost what to do next.
Asked 2 years ago in Family Law from Australia
Religion: Sikh
1) you should not have married her if you had no plans to stay with your wife . better visit a marriage counsellor  and try to make your marriage work 

2) if your wife is not willing to agree for divorce by mutual consent  you have to file for contested divorce 

3) please note that contested divorce proceedings take around 5 years to be disposed of
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
1) i presume your marriage has not been consummated . 

2) if you file for divorce be prepared that your wife will file counter cases against you . 

3) unless you sponsor your wife she wont get spouse visa in Australia
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
1, You are an adult and educated person and nobody can force you to enter into marriage.
2. Marriage is not a joke that after doing this you will simply tell the person ti end it only because you did not want it.
3. If wife is not ready and willing then you is unlikely to get divorce.
4. In that event if the wife files criminal cases against you, you have to face it regularly apart form monthly maintenance you are liable to part with.
5. You can get rid of this marriage only if your wife forgives you. So seek her forgiveness.
Devajyoti Barman
Advocate, Kolkata
5226 Answers
54 Consultations
4.9 on 5.0
1) you should have informed your wife prior to marriage that you dont want to marry her . 

2) anyhow agree to pay her lumpsum alimony and seek divorce by mutual consent
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
You need to speak with your wife to end this relationship. If you were forced into this marriage you can't just walk away and say that you never wanted to marry. 

I dont think considering to alter the government of Australia would prove any good because she would have proof of a valid marriage according to the rites and customs.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
1. If your spouse has refused divorce then the only legal recourse available under the Indian law is to unilaterally file for divorce i.e no fault divorce on the grounds available to you. 

2. To unilaterally succeed in getting divorce you have to show to the court that the grounds of divorce provided by the law are made out in your case. Has your wife refused to consummate the marriage? If yes, then alone you can file for divorce on the ground of cruelty. 

3. If on the contrary you have not consummated the marriage then you cannot file for divorce. However, mutual divorce can still be filed if she agrees to end the marriage.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
1. Your passport was seized by your family members & to get rid of their such pranks you have considered to choose the easy route of marrying a girl and divorcing her immediately without any fault of hers,

2. Please note that you should have filed criminal complaint against your family members who were seizing your passport,

3. Your wife is completely innocent and by marrying her without informing that you are forced to marry her, you have ruined her life for which she can claim for compensation,

4. Indian law is not that weak that way and you will not get divorce without valid reason and there is no valid reason cited by you for seeking divorce from her,

5. Best way for you will be to talk to her &/or family to ensure that she agrees for mutual consent divorce against payment of adequate compensation for playing with her life and finally ruining it.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1. Until and unless you sponsor your wife there is no way she can come to Australia on spousal visa. 

2. If your passport was seized then you ought to have filed a police complaint against them for criminal intimidation and theft, which you did not do. So this has further weakened your case. 

3. The inherent flaw in your case is that there is no ground available under the law for you to file for divorce. On the contrary, with due deference, you are on the wrong side of the law. It is basic law that one cannot take advantage of his own wrong. So you cannot file for divorce. Furthermore, you ought to have moved court within one year. 

4. The best way out for you would be to persuade your wife to agree to mutual divorce by paying her a reasonable amount of alimony. 

5. If your attempt to convince your wife to agree to joint divorce does not fructify then talk to a lawyer to explore the possibility of filing for divorce on any ground under the Indian law.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Being a major in age you would haven been acted wisely and haven't succumbed to the clutches of your in laws before marriage.And,marriage tie is not so easy to untie whenever we wish so like you.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0
Dear Querist

file a divorce petition before family court of jurisdiction, if you are not able to live with her as per Hindu Marriage Act, 1955 on the ground as mentioned in section 13(1A) of HMA, read the section below:
 [(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground?
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [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 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
1) provisions of section 13(1A) are not applicable in your case . no decree of judicial separation or restitution of conjugal rights have passed 

2) it is only in cases where such decree has been passed and parties have not lived together for one year can such petition be filed . 

3) you will have to file petition for divorce in india on grounds recognised by HMA . if for instance you file contested divorce petition on grounds of mental cruelty you will have to prove mental cruelty then only would divorce be granted by court
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
1. It is strange that you are putting blame on her for her desiring to live with her husband,

2. You think that marriage in India is like a game which can be played with ease and after marrying the wife can be told to get out of the married life without any fault of her?

3. You, as of now, have no ground to file an application seeking a decree of divorce in India whereas your wife has plenty of sections under her disposal against which she as well as her family members can take legal recourse against you and your family members and on hearing your above submitted reason/logic for calling of your marriage, the Court will surely be very harsh on you, not withstanding your planned application for permanent residency,

4. It will be prudent on your part to settle the matter with your wife amicably  by filing mutual consent divorce by paying her the compensation for the damage caused to her by you.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
1. The ideal way out of a meaningless marriage such as this is to file for joint divorce on the basis of mutual consent, but this option is clearly out of picture as your wife has expressed her desire to continue the marriage. This leaves you with the only legal remedy to take recourse to filing for divorce unilaterally.

2. The predicament confronting you at this stage is that there is no ground available under the law to file for divorce. The only ground on which I can foresee your chances of succeeding in divorce is non consummation of marriage.

3. When a complaint is filed against any of your family members they should apply immediately for anticipatory bail to preempt their arrest.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
it is not possible for you to file divorce petition from Australia. and also you can't go australia in pendency of petition because there is rule that judgment must be pass in presence of both parties and it is not easy to serve summon/warrant in Australia, it is better for you to file divorce under section 13 B i.e. divorce by mutual consent. 
divorce is the ultimate solution for you. you have ruined her life.  try to understand difference between husband and wife's life after divorce. if she is not ready to give mutual divorce and file application for maintenance  under sec 125 cr.p.c., criminal case under sec 498-A, 323/328/504/506 or under DV Act then it will be tough for you to leave India. if you file any case or divorce petition under sec 13 then also you should ready to face same problem because she can file cross case upon you and your relatives.
it is good for you to amicably settle this issue and any how file mutual divorce.
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
4.9 on 5.0
Dear Querist

as per My knowledge the section 13(1A) of Hindu Marriage Act may be applicable as per the language of the section, read the below mentioned section

Section 13(1A) in The Hindu Marriage Act, 1955
22 [(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground?
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [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 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

No Need to worry, no need to come to india, Execute a Power of Attorney in favour of any of your family members regarding the filing the case and subsequent proceedings. The POA Holder may do all things on behalf of you and you may came to india only for the evidence Stage, if the opposite party is not ready to settle the matter till then.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0

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