• How to take divorce?

I would like to file a divorce, i dont think i would be happy in this marrige over long term. Its been 3 months i have been married, but it does not seems so that it can last. My husband is perfectly fine, but in laws comand is too much. How to file the divorce and take one. As my husband would obvioulsy wont want to?
Asked 4 years ago in Family Law
Religion: Hindu

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24 Answers

Under section 14 Hindu marriage act a divorce petition cannot be accepted by court within 1 year of marriage only.in exceptional hardship it is allowed.

After expiry of.1 year or within same if you are able show that it is exceptionally hard for.you to be in this marriage than you can file.divorce.under section 13 hindu marriage act.on grounds mentioned there under.

Also if your husband is fine than you don't.have ground to.seek.divorce and court may not allow same. I would advise you to.live separately from in laws talk it out with husband than.also you.dont want to conitinue then file for.divorce.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Madam,

First try for reconciliation from all angles if fails go for mutual divorce. Getting divorce depends upon grounds. At this initial stage only mutual divorce is possible as follows: For any doubt call me.

Six Months Waiting Period In Section 13B(2) Of Hindu Marriage Act For Divorce By Mutual Consent Not Mandatory: SC [Read Judgment]...(Please write on my e-mail for judgment)

In case of Divorce also Six month outer limit is provided under law:

“Section 21-B of the Hindu Marriage Act provides for an expeditious trial — to be concluded within a period of six months. However, the disposal of petitions before the trial courts take many years,” the court said.

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It is in the hands of LITIGANTS how early they wish to conclude, it may be a request or by approaching the High Court ......For your kind information the relevant news its are below. Hope you will appreciate this information and award me fifth rank..

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Law deadline 60 days, cases stretch for years

AHMEDABAD: A resident of Shahpur , Shabanabanu Shaikh , filed a case in January 2009 under the Protection of Women from Domestic Violence Act, 2005, against her husband Mushtaq Shaikh . The protection officer submitted the 'domestic incident report' within two weeks.

The court concerned began proceedings — which the law stipulates must be concluded in 60 days — but has not yet taken any decision on her application for maintenance. The next hearing is scheduled for November 26.

The case of Bapunagar's Farzana Saiyed is no different. She too had filed in 2009 an application for maintenance against her husband and for shelter at her in-laws' house. Five years later, she is a widow and her case is still pending.

Most of the cases filed under the domestic violence law follow this grim pattern. It is the section 12 of the Domestic Violence Act which lays down the proviso that a magistrate will endeavor to dispose of every application within 60 days from the date of the first hearing. But that deadline is seldom maintained.

In fact, Dinesh Sharma, an advocate, says: "There is not a single instance of a domestic violence case, in my knowledge, that was completed within two months in city courts, unless the quarreling parties reached a compromise." Sharma says the format to be adopted by courts for these cases comes from the Criminal Procedure Code. "And criminal lawyers know ways to defer such proceedings," he says.

Another advocate, Imtiyaz Pathan, says that courts deal with DV cases in the same manner as they would handle other criminal cases. "There are some magistrates who give adjournments of more than three months in proceedings," he says.

The delay in court proceedings is the result of grave deficiencies in human and infrastructural resources to deal with women's complaints of domestic violence. Kashmira Kapadia is the only protection officer in Ahmedabad district, which receives more than 1,000 complaints every year. "Ideally there should be six protection officers in this district to expedite the processing of domestic violence complaints," she says.

Earlier, based on a TOI report, the Gujarat high court had taken suo motu cognizance of the issue and had ordered the state government, on February 22 last year, to fill vacancies and create infrastructure in protection officers' offices across the state. The vacancies are yet to be filled.

Times View

The Domestic Violence law makes it incumbent on magistrates to settle a case in 60 days. The reality is that often adjournments of two months are won by defence lawyers. This is a travesty of the law, especially since it lays down a deadline unambiguously. The law was created to offer speedy redress. So domestic violence cases should not be treated like any other litigation.

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High Court wants divorce cases disposed of in 6 months

Directs trial courts to ensure speedier granting of alimony and maintenance to the ‘weaker spouse’.

Taking note of the undue delay in granting maintenance and alimony in divorce cases under the Hindu Marriage Act, the Delhi High Court has directed the lower courts to ensure that the trial in the matrimonial dispute cases be completed within six months as prescribed by the Act.

“No standard uniform practice and procedure is followed by the courts,” noted the court of Justice JR Midha, adding that in most cases, the provisions for interim maintenance and permanent alimony under Section 24 and 25 of the Hindu Marriage Act were not being utilised.

“Section 21-B of the Hindu Marriage Act provides for an expeditious trial — to be concluded within a period of six months. However, the disposal of petitions before the trial courts take many years,” the court said.

“This is matter of serious concern. It was certainly not the intention of the law that parties to a dissolved marriage suffer further misery of starvation in the absence of grant of alimony,” the court said.

Observing that most people resorted to “parallel proceedings” under the better known maintenance provisions under Section 125 of the Criminal Procedure code, the court noted that parallel proceedings took more time and deprived the weaker spouse of maintenance.

The maintenance provisions under the Hindu Marriage Act apply to both spouses, meaning that the husband can also claim maintenance from wife at the time of divorce in case it is proved that he does not have sufficient income or assets.The directions have been issue after the court decided to hear nine separate pleas for maintenance filed by women whose husbands had filed for divorce.

The court noted that the disposal of cases had taken a long time, with the oldest of the nine cases dating back to 1996.

The court in its order has now directed that the spouse who files for divorce is required to file his or her affidavits with details of income, assets and expenditure, as required by Section 24 of the Hindu Marriage Act, at the same time as the divorce plea, if they want to claim maintenance.

The respondent party should also file their affidavits within 30 days of the notice being issued, the court said.

Further, in order to protect the spouse who is the respondent in divorce proceedings, and is usually the party which claims maintenance, the court has said lower courts could consider directing the petitioner to deposit money to be paid to the respondent as litigation expenses.

The court has also prescribed that the affidavit and counter affidavit on income must be filed within six weeks of notice being issued on a divorce petition.

“If the disposal of maintenance application is taking time, and the delay is causing hardship, some ad interim maintenance should be granted to the claimant spouse,” the court said.

The court also said the time-table prescribed should be followed for all cases of maintenance under the Hindu Marriage Act, Domestic Violence Act, Hindu Adoption and Maintenance Act as well as pleas under Section 125 CrPC.

The district courts have also been asked to file a report on the implementation of the time-table and on whether the suggestions have curbed the delay in matrimonial cases.

Divorce by Mutual Consent Step by Step Procedure

http://indianexpress.com/article/news-archive/web/marriage-divorce-does-mutual-consent-matter/

Hindus: Under Section 13B of the Hindu Marriage Act, a husband and wife can file a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about inability to continue the marital relationship due to some unavoidable circumstances. Both the sides must voluntarily agree to dissolve the marriage. The filing of a mutual divorce by both the husband and the wife is termed as ‘the first motion’. A couple can file for a second motion after a gap of six months. This time span is provided to the couple so that they get time to reconsider their marriage. A divorce decree can be passed before the completion of the six months term if all the mandatory requirements are sufficed. If the divorce file is not withdrawn within 18 months,the court passes a divorce decree. In case one of the sides withdraws the petition,the court initiates to make an enquiry. If the concerned side disagrees to give the consent,the court holds no right to pass the judgment.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1)only in exceptional circumstances can you file for divorce before expiry of one year of marriage

2) since you have no problems with your husband better visit marriage counselor to resolve your disputees

3) contested divorce proceedings take 5 years to be disposed of

4) mutual consent divorce takes 6 months

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

If your in laws is a problem talk to them, tell your parents to talk to them, tell your husband also. Then tell your parents to quote that if such continues you have to take legal action. See what responses you get.Breaking is easy, but tackling it properly would need patience from you.

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

1) You can go for divorce after 1 year of your marriage not now, after 1 year try for Mutual Consent Divorce. May be meanwhile things gets changes in the life, if your husband is good than don't worry about your in-laws.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

For filing a divorce petition the minimum time period required is one year from the marriage.

As you are married for only three months you need to live separate till the completion of one year and the file the divorce petition.

In special case you need to file a petition for approval of the court to file a divorce petition. If you like the answer please rate it.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

You can file a divorce case only after your marriage becomes one year old.

Take help of a marriage Therapist to get your differences resolved with your husband and in-laws.

If you have have taken a final decision to get out of this marriage and you do not want to wait for one year till the time you become eligible to file a case of divorce, you can file a case of judicial separation.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

- As per Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple should be living separately for at least one year before divorce proceedings can begin.

- As you have completed only 3 months period till date ,so no case is maintainable for getting the divorce.

- Otherwise, in some special cases , you will have to approach Principal Judge of family court of your jurisdiction for waiving the period of one year.

- A divorce is among the most traumatic occurrences for any couple. So, my suggestion will be to resolved the matter in disputes with the help of family members and further discuss with your husband for living separately under one shed i.e.without the family members of your husband.

If, the dispute still continue , then you should file a complain before the Women Cell of your area .

The lady official of the CWC will try to reconcile the matter in dispute in the presence of both parties.

If, even the dispute not resolved , then you have two ways to get the divorce from the court of law.

- By mutual divorce

- By filing a case of Divorce before the family court

But,in both the situation one year period is mandatory.

Mohammed Shahzad
Advocate, Delhi
9872 Answers
121 Consultations

5.0 on 5.0

You need to file the divorce petition after the completion of one year on the ground of mental cruelty against him in the court of law with the help of any good local advocate

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

4.8 on 5.0

You said that your husband s perfectly fine. Talk to your husband frankly that I cannot live with your family and in case he is interested to live with you separately, it is all right otherwise you want divorce with mutual consent.

In mutual consent divorce, there are two joint motion applications to be filed before the Principal Judge, Family Court. First motion application under section 13B(1) HMA can be filed only after living both the parties separate at least for one year. If you calculate it from the next date of marriage, the time to file first motion comes in October/November, 2018. You talk to your parents and live with your parents for one year and by the time things will be cleared.

The terms can be mutually decided and mentioned in the joint applications as per your conveniences. The second motion can be filed after passing of six months from the first motion. But now the Hon'ble Court has given a latest judgement where the second motion can be filed after 15 days provided you have to explain the reason.

But in case you want to give divorce without mutual consent,you have no ground for divorce at present.

Think it over as advised and take decision patiently as you have to go a long way.

Dalip Singh
Advocate, New Delhi
1039 Answers
36 Consultations

5.0 on 5.0

Hi, it is suggested that no case for divorce can be filed within 01 year of marriage. However, you are suggested to wait and watch, discuss the things with your husband.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Since the marriage is hardly three months, you may have to wait for at least one year to file a divorce petition before court seeking dissolution of marriage by a decree of divorce.

However you may have to project and present strong reasons for seeking divorce.

Flimsy reason or reasons of trivial issues cannot form a good ground for divorce.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

Divorce allows a person to break free from an onerous marital relationship.Under Section 14 of the Hindu Marriage Act, 1955, no petition for divorce can be filed within one year of the marriage. But in case the petitioner's case is of exceptional hardship High Court is in empowered to grant leave to file the case before the expiry of one year.

As per your query , My husband is perfectly fine, but in laws comand is too much

So First you have to take a correct decision. If you save your marraige then settle the matter amicably and meet a marriage counselor.

If you want a divorce,

There are two ways to legally end a marriage – annulment and divorce. If you are withdrawing from marriage and relationship then file petition for nullity of marriage. An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid. A divorce, or legal dissolution of a marriage, is the ending of a valid marriage between a man and a woman returning both parties to single status with the ability to remarry. While each individual state has its own laws regarding the grounds for an annulment or for a divorce, certain requirements apply nationwide..

Annulment can file any time before expiry of one year from the date of marriage.The party initiating the annulment must prove that he or she has the grounds to do so and if it can be proven, the marriage will be considered null and void by the court. The following is a list of common grounds for annulment and a short explanation of each point:

Bigamy – either party was already married to another person at the time of the marriage

Forced Consent – one of the spouses was forced or threatened into marriage and only entered into it under duress.

Fraud – one of the spouses agreed to the marriage based on the lies or misrepresentation of the other.

Marriage Prohibited By Law – Marriage between parties that based on their familial relationship is considered incestuous.

Mental Illness – either spouse was mentally ill or emotionally disturbed at the time of the marriage.

Mental Incapacity – either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent.

Inability to Consummate Marriage – either spouse was physically incapable of having sexual relations or impotent during the marriage.

Underage Marriage – either spouse was too young to enter into marriage without parental consent or court approval.

Ajay N S
Advocate, Ernakulam
3990 Answers
93 Consultations

5.0 on 5.0

Dear Querist

As per Hindu Law, You can not file a divorce petition before completion of One year of Marriage.

after completion of one year you may file the divorce case based on any ground as mention in Section 13 of 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]

(ii) has ceased to be a Hindu by conversion to another religion; or

[(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,—

(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 other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has 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;

[ 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.

[(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 [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.]

(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]

[(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

[(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.]

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

Hello,

You can only file divorce after one year of the marriage.

And you can only obtain the same on the grounds as mentioned in the Hindu Marriage Act.

As of now I do not think so that any such ground is mentioned in your case.

You may wait and collect evidences of mental cruelty and file divorce after 1 year of marriage.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You can file for anullment of marriage if wife is impotent and marriage has not been consummated

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

Grounds For Annulment

The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence including the following:

(1) Either spouse was already married to someone else at the time of the marriage in question;

(2) Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse's reaching marriageable age);

(3) Either spouse was under the influence of drugs or alcohol at the time of the marriage;

(4) Either spouse was mentally incompetent at the time of the marriage;

(5) If the consent to the marriage was based on fraud or force;

(6) Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;

(7) The marriage is prohibited by law due to the relationship between the parties. This is the "prohibited degree of consanguinity", or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.

(8) Prisoners sentenced to a term of life imprisonment may not marry.

(9) Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)

Dalip Singh
Advocate, New Delhi
1039 Answers
36 Consultations

5.0 on 5.0

If the marriage was not consummated for the reasons that the opposite party refused conjugal or sexual relationship, then you may file an annulment case citing her impotency as reason for seeking annulment of marriage.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

She annulment of marriage can be filed.om following grounds specified under in Section 12 in The Hindu Marriage Act, 1955

12 Voidable marriages .—

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—

12 [(a) that the marriage has not been consummated owing to the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

So non-consumation of marriage on ground of impotence is ground for impotence which is very difficult to prove in court.

You have to file for divorce in court and seek divorce from.the court. Also when there is nothing wrong with husband it will really hard for you to state grounds in court and seek divorce you have to tell court exceptional.hardship in relation cruelty or adultry or other grounds mentioned under section 13 have to be fulfilled.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Than you can go for annulment, as per HIndu marriage Act

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

This is not a ground for annulment.

If a marriage took place as per hindu rites and rituals and it is a valid marriage then annulment can not be filed.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Yes, case of annulment can also be filed.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

You file the case under the provision of law

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

Annulment or Nullity of marriage means that the marriage has not happened at all. After getting the annulment or nullity decree, the status of the individual is UNMARRIED/SINGLE,

Conditions of the annulment of the marriage are:

a. The marriage has not been consummated ( no sexual relationship has occurred between the husband and wife)

b. It should not have been in the prohibitive relationships (Husband and wife cannot be as brother and sister, like first or second cousin, or through same father and different mother etc., unless accepted by the caste)

c. This marriage should not have happened through fraud or force and without the consent of both the individuals to the marriage.

d. The marriage should not have happened through the concealment of the facts. (like either parties were married before and later divorced, or have a child through previous relationship)

e. The parties of the marriage should not have the contagious disease which cannot be cured within the specified period of 1 year.

f. The parties of marriage should not be impotent or have the disease which can be unable to bear the family.

g. The parties of the marriage should not be of unsound mind.

h. The parties of the marriage should not be in any marriage earlier, and if the marriage has happened, the divorce should have been happened (except for Muslims) before the second marriage.

3 it is mandatory to be filed within one year of the marriage or 1 year from the date when the fraud came into light.

4. The process of annulment is same as other case like divorce or RCR

5. The time taken depends on the co-operation from other party.

Ajay N S
Advocate, Ernakulam
3990 Answers
93 Consultations

5.0 on 5.0

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