• Divorce case

My wife was fighting with me last 4-5 years for live separate with my parents while i am only single son of my parents . she also attemp suside once because of this reason .since last 1 year she is living separate also . i have one 8 years child and he is living with me . she also not take care of him. now i wanst to divorce from her . so please advice me as below query :
1. Can i file divorce ? , if yes then on which ground 
2. whats is better way for divorce either i file sec 9 if it will help me or can file directly divorce case .
3 If i file sec 9 first then can i convert it in to divorce case before decision after some time if she dont wants to come
Asked 4 years ago in Family Law
Religion: Hindu

2 answers received in 10 minutes.

Lawyers are available now to answer your questions.

26 Answers

File for divorce on grounds of mental cruelty

2) wife forcing husband to stay separate from parents amounts to mental cruelty and is ground for divorce

3) wife refusing to stay husband amounts to mental cruelty

4) RCR is useless even if you get decree you cannot force your wife to stay with you

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1.Any force exercised to make you stay separately from your wife is an instance of mental cruelty for which you can file a suit for dissolution of marriage. The supreme court has recently held this ground as a valid reason to seek marriage.

2.RCR will only delay the proceeding. if you wish divorce then file divorce suit only. RCR decree and after one year filing of divorce suit will take you nowhere.

3. Conversion of RCR into divorce suit will not depend on your choice.For this there has to be subsequent instance of mental cruelty on which you on withdrawal of RCR will have to file divorce suit on the fresh cause of action.

4. If there is any apparent wild and reckless allegations raised agaisnt you in her written statement then you can apply for conversion of RCR into divorce suit.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1) Yes you can file for divorce on cruelty and desertion ground.

2) Go for Mutual Consent Divorce instead of judicial separation, because mutual consent divorce will proceed fast.

3) Yes you can, but you and court can't force her to live with you together.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Dear Sir,

Answers to your query are as follows:

1. Can i file divorce ? , if yes then on which ground.

Ans On the ground of DESERTION you can file it. it is defined as follows:13(1)(ib) see last line.

Section 13 in The Hindu Marriage Act, 1955

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—

[(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

2. whats is better way for divorce either i file sec 9 if it will help me or can file directly divorce case .

Ans: Directly file divorce case.

3 If i file sec 9 first then can i convert it in to divorce case before decision after some time if she dont wants to come

Ans: Both sections are quite opposite to each other as such your case may not stand if you file under section 9 and then to section 13.

I have read more than 10,000 judgments and prepared Head notes which are published in many law journals. Further I worked a judicial officer for 20 years. Out of my experience I say that you have to file divorce case directly.

Section 9 in The Hindu Marriage Act, 1955

9 Restitution of conjugal rights. — When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. 8 [ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. Yes, apply for divorce on the ground of cruelty. Wife forcing you to abandon your parents and live with her separately amounts to cruelty. Besides her act of abandoning you and the kid also amounts to cruelty.

2. If you have taken a decision to come out of your marriage, file a divorce case straightaway.

3. No, this cannot be done. You will have to withdraw this and thereafter file a fresh divorce case.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

1. Yes on the ground of cruelty to you and parents.

2. If you file section 9 and she responds to it and comes back the would you like to live with her. If yes the file RCR.

3. Section 9 is Restoration of conjugal rights and what has to decide in favour of the person who is being victimized so you will be losing the ground while the pendency of Restoration of conjugal rights petition if you change to divorce petition

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1.) it would be better to file the petition under section 9 which may become the strong cause for the divorce petition in future.

2.) Yes Sec 9 further can be converted into divorce petition if magistrate satisfies that girl is not ready to live with you at any cost.

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

4.8 on 5.0

The very fact that she has asked you to stay separate from parents amounts to cruelty.

That is a sufficient ground for divorce given the 1 year separation period already gone.

R. S. Akolkar
Advocate, Mumbai
53 Answers
1 Consultation

4.8 on 5.0

1. You can file a divorce decree against her on the ground of cruelty. Forcing husband to separate from his old parents has been considered as a form of cruelty by the Supreme Court for being a ground for seeking decree of divorce. Hope you have collected the evidence of her such cruel demands from you by audio/video recording her such conversations.

2. There is no point in filing case u/s9 of HMAct since it will be wastage of time and money. You can directly file the divorce suit on the ground of cruelty.

3. No. RCR case can not be converted to divorce case since the prayers are diametrically opposite. Divorce caset can be converted to MCD case since both are similar in nature in prayer.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

No need to go for the section 9 as it won’t give you relief of mental satisfaction which she can’t give you as she doesn’t want to live with you.

Straight away file a case for divorce on metal cruelty as also by a latest Supreme Court judgement if wife asks to get separate from the parent would constitute mental cruelty to the husband.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

File divorce on the ground of mental cruelty sec 13(1)a of Hindu marriage act. If you file under sec 9 it may become lengthy procedure. If you really want to stay with her you can file under sec 9. If you file under sec 9 it is for restitution of conjugal rights so better not to step into that arena and file for divorce directly.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Respected sir...

1- There are number of grounds on which you can file divorce petition under section 13-A of HMA such as cruelty, Adultery, mental harassment , conversion, unsoundmind, desertation, and separation...Just pick up atleast one ground which suits you the most and file divorce petition..

2-if you want her back in your life and want to spent your life with her then file section 9 of HMA else directly petition under section 13-A of HMA will be filed

3-sir one the suit is entered into the court it can not be convert into any other section at latter stage ...

Just make your mind clear weather or not you want to spent your life with her and then file section 9 or section 13-A .....As per me section 13-A of HMA will be much better for you as per above facts and circumstances ...

Thank you

Dinesh Sharawat
Advocate, Delhi
1258 Answers
12 Consultations

4.9 on 5.0

Hello sir , it is first advisable to file RCR .. Let's see what she claims when she appears before court .. Later on you can file a divorce on the grounds of desertion and mental cruelty

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

Hello

Dear

Please not your question wise reply here under

1. You can file a divorce petition under section 13 (a-i) HMA act on the ground of cruelties. As you have stated that your wife is staying separately for last 1 year from you. Further it is important to note here that there are 1000 of judgments of the Hon'ble supreme court as well as other high courts wherein it has been held that if wife compelled, force and caused cruelties on the pretext of separation from the parants to the husband then the husband is entitile to get divorce on this sole ground alone. As you mentioned herein that you have only the son it is best ground with you for filing the divorce petition.

2. The proceeding under section 9 of the HMA act will not work in your case as you stated that your wife cause utmost crutleis, atrocities, upon you. Rather you should file divorce proceeding I would advice.

3. Please note that if you intended to file Section 9 peition which will never be converted in to divorce petition. If you have already file then you have to withdraw the same and has to file divorce petition in court.

Regard

G.L.Soni

Advocate

G. L. Soni
Advocate, New Delhi
87 Answers
3 Consultations

5.0 on 5.0

You can file for divorce on grounds of mental cruelty and desertion.

If you want to save your marriage then file RCR, If not file Divorce

No conversion is allowed RCR case can not be converted to divorce case .

Ajay N S
Advocate, Ernakulam
3991 Answers
93 Consultations

5.0 on 5.0

1. You can file divorce case ion the grounds of mental cruelty and desertion.

2. Do not file section 9 petition, it is a waste exercise, you can file a divorce case directly if the tortures are intolerable and it may aggravate the situation.

3. Section 9 cannot be converted into divorce case at a later stage, you may have to file a divorce separately.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Dear Client,

Forcing husband to live separate from parents amount to cruelty, Valid ground for divorce.

What the need for filling sec 9, it will take time to get decide and if she refuse to comply order of court, u will get one more ground for divorce but time consummating.

Sec 9 can`t be change into divorce, u have to withdrawn and than file for divorce.

For any Legal Assassinate in Jaipur, do contact.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. Yes you can file the divorce, on the ground of cruelty you can file.

2. You can file the same directly, asking you to leave your parents also amounts to cruelty.

3. Section 9 can not be converted to divorce, both are different cases.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

There is no point of filing a section 9 case at this juncture, if you do not want her to come back and live with you.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Engage a detective agency and gather evidence of your wife employment

2) you can make application to court to direct wife to produce her bank statements, income tax returns for last 3 years

3) non need to file any case against wife at present

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1) where she is working you have to bring attendance record book and whether payment is taken by cash or cheque, now a days all of employees payment get by cheque or transfer in account.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

You cannot vaguely state this before the court.

Court will not accept oral evidence if she rejects your claim.

No criminal complaint is maintainable

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Sir you can provide documents in case if she files for maintenance to court that she is employed and earning nice salary. Since child is in your custody court may not grant her maintenance. Secondly if the contractor is ready to help you ask him to lodge a police complaint that she's impersonating someone else. You cannot lodge complaint unless you are at loss by her acts.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1. You shall have to submit evidence of her such working. If she has been collecting her salary in some other name, then try to collect the salary payment voucher wherein she has signed. If you can not collect pray before the Court to direct her employer to submit the list of its contractual employees and their salary payment voucher from where you shall be able to identify the voucher bearing your wife's signature in the other name.

2. You shall have to collect irrefutable evidence about her such working in different name for proving the she is not entitled to any maintenance from you. However, you have no locus standii to file criminal case against her. Moreover, if she becomes unemployed, then she will become entitled to maintenance from you.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

1. You may file an RTI with the said department and also you may ask her to file an income affidavit.

2. If you know exact details then definitely you can.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. Get some details/evidence. You can take recourse to the RTI Act to find out the details as to her employment.

2. In case this is true, you can file a complaint anonymously.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer