• Divorce

Hi. I have been married for four years. There is no good understanding between me and my husband. I am finding it very hard to live with him. I stay in Bangalore. He is an IPS officer but posted in different state. I don't want to stay with him. But my parents want me to stay with him. Can my husband or my parents force me to stay with him ? Can they take any legal action against me ? Can I get a divorce even if my husband doesn't agree to giv me a divorce ? Can my parents or his parents stop me from getting divorce ?
Asked 2 years ago in Family Law from Bangalore, Karnataka
Religion: Hindu
1) you cant be forced to stay with your husband . 

2) if you want divorce from your husband better do it by mutual  consent . if your husband refuses then you can file for contested divorce on grounds of mental cruelty 

3) contested divorce proceedings take some years to be disposed of 

4) parents have no role to play in divorce proceedings of their children .
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
Your parents or your husband cannot force you to live with anyone however since you are married it becomes your duty to take care of the in-laws and your husband. 

You cannot take divorce without proving mental cruelty and in your case just because you and ur husband are not compatible with each other, it is no ground for divorce. However if there is some mental cruelty being meted out, that should be proved by concrete evidence.

But If your husband is agreeable to mutual consent divorce, it is advisable to go for mutual consent divorce.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:

Can my husband or my parents force me to stay with him ?
Opinion: Nobody can force you to live with him neither your parents nor your husband.

 Can they take any legal action against me ?
Opinion: There is no offence made out against you, hence they have no right to take any legal action against you.

 Can I get a divorce even if my husband doesn't agree to giv me a divorce ?
Opinion: if there is any ground as mentioned in section 13 of Hindu Marriage Act then you may file a divorce against him before family court at Bangalore.
13 Divorce. ?
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party?
16 [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]
16 [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]
16 [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
17 [(iii) 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,?
(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or
(v) has 18 [***] been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vi) 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 it, had that party been alive; 19 [***] 20 [ Explanation. ?In this sub-section, the expression ?desertion? means the 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.] 21 [***]
22 [(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.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,?
(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 23 [bestiality; or]
24 [(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 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; or
25 [(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]
Explanation. ?This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*.] State Amendment Uttar Pradesh: In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13?
(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following clause, namely:? ?(1a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or?, and ?(viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and?
(ii) for clause (viii) (since repealed in the principal Act) substitute (and shall be deemed to have been substituted) following clause, namely:?
[ Vide Uttar Pradesh Act 13 of 1962, sec. 2 (w.e.f. 7-11-1962)].
(i) Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty; Maya Devi v. Jagdish Prasad, AIR 2007 SC 1426.
(ii) Making false allegations against husband of having illicit relationship and extramarital affairs by wife in her written statement constitute mental cruelty of such nature that husband cannot be reasonably asked to live with wife. Husband is entitled to decree of divorce; Sadhana Srivastava v. Arvind Kumar Srivastava, AIR 2006 All 7.
(iii) The expression ?Cruelty? as envisaged under section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Intention to be cruel is not an essential element of cruelty as envisaged under section 13 (1) (ia) of the Act. It is sufficient that if the cruelty is of such type that it becomes impossible for spouses to live together; Neelu Kohli v. Naveen Kohli, AIR 2004 All 1.
(iv) The levelling of false allegation by one spouse about the other having alleged illicit relations with different persons outside wedlock amounted to mental cruelty; Jai Dayal v. Shakuntala Devi, AIR 2004 Del 39.

 Can my parents or his parents stop me from getting divorce ?
Opinion: nobody can stop.
Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
4.9 on 5.0
1. Even a court of law, let alone your parents, cannot force you to stay with your husband. You are free to reside separately from your husband. 

2. If there is no compatibility between you and your husband then both of you may file for mutual consent divorce which is the quickest form of divorce under the Indian legal framework.

3. If your husband does not agree to mutual divorce then you may unilaterally apply for divorce on the ground of cruelty. Your husband may contest the divorce proceedings initiated by you, but the court can grant you divorce despite his opposition.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1. No boy let alone any provision of law forces a spouse to stay with his/her partner.
2. Your husband can file suit for restitution of conjugal rights to ensure your company which order can not practically be executed though.
3.If both parties want then diuvorce on mutual consent can be hranted. if that does not happen then any of the souses can apply for divorce.
4. in the divorce the wish of your parents has nothing to do.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
Hi, if you dont want to stay with him you can reside separately but he may file a petition for restitution of conjugal right.

(2) If you want divorce you have to file a petition for divorce on the ground of cruelty or any other ground but if your husband does not consent  for divorce it is difficult to get divorce and consented divorce the court can dispose of the matter with in 6 months.

(3) No body can't pressurize to stay with your husband and it is better tried to settle the matter amicably.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. No body can force you to stay with your husband against your wish,

2. Review your decision to divorce him since divorce is the 2nd most stressful event in one's life and you are not sure whether your 2nd man will be any better. Spending life alone may become difficult later on when you might regret for your to-day's decision,

3. However, if you have already decided to terminate the relationshiop, talk to him and try for mutual consent divorce which will take around 6 months from the date of filing,

4. If he does not agree for MCD, file a contested divorce case on the grounds mentioned in the HMA like cruelty duly submitting adequate evidence in support of your allegation.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Hello,
1) Have you been staying separately all these years? Has there been any legal action initiated by your husband to persuade you to stay with him?

2) Regardless of what the answer to the above questions are no one can bring on any sort of compulsion or pressure on you to live with your husband just because you married him.

3) Your husband, the in laws or your own parents can not force you to stay in the marriage that you are convinced that you can not live.

4) There are also no provisions in the law  that will order either of the spouse to stay with the other against his/her willingness to do so. Although in a petition seeking restitution of conjugal rights the spouse who is not living with the other is ordered to stay with the other by the court and the order is not complied with there is no provision to execute the order albeit it may pave way for divorce.

5) If your husband will not co operate with a mutually consented divorce you can unilaterally file for divorce on grounds of mental cruelty.There is no reason why you can not obtain a divorce decree.
S J Mathew
Advocate, Mumbai
1949 Answers
65 Consultations
5.0 on 5.0

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