• Divorce

I am a bengali hindu married to a muslim man for 8 years. We have a daughter.we lived in usa for 6 years.last year december my husband moved us back to india to stay with his parents.since then it has been a nightmare for me.i cant adjust to this way of living neither is he ready to stay seperate.he says he is working with his office to go back but i doubt he is.he wants time till april but am sure nothing is going to happen as i have been listening to this for the past 2 months.my mom in law already makes efforts to teach my daughter their religious ways and am not allowed to practice any of mine in this house.
I took an app with a.lawyer to file for divorce last week but my husband is not ready and wants time till april.i really want to.come out of this .please help me.
Asked 3 years ago in Family Law from Kolkata, West Bengal
Religion: Hindu
1) please clarify how was marriage solemnised . was it under Special marriage act ? 

2) since you both belong to different religions your marriage could not have been solemnised under provisions of Hindu marriage act 

3) visit a marriage counsellor to resolve your disputes . 

4) if you have not converted into islam you are free to practice your religion . 

5) give your husband time till April . then file for contested divorce if your husband does not agree for mutual consent divorce 

6) please note that contested divorce take years to be disposed of
Ajay Sethi
Advocate, Mumbai
45671 Answers
2686 Consultations

5.0 on 5.0

 1. Try to stick to your stand and ask him to instruct his parents not to interfere in your and child's affairs till he comes down to decide on either n divorce or going back to US.If you think he is not going to listen, then go ahead with legal procedures of filing a complaint before the police about all the trouble you have from your in laws. 

2. Where you working , how educated are you. if you are not working you have the right of alimony and maintenance in case of you both decide for separation.

3. If the problem is only with your in-laws try to convince your husband and go back to US.it is not advisable to compromise on your religion and other way of living because you married someone other of your religion.

4. if your husband does not agree to your demands of  freedom in religion and to bring up your daughter as per your ways, go for a divorce, if it can be on mutual consent terms ,that is better.

5. demand him for the  maintenance and educational expenses for your daughter in  as you should have the permanent custody of your daughter.

6. You can ask for one time alimony and  a house to live with your daughter if you prefer to live in India.
In case your husband is not understanding the situation and not agreeable to your views you have no option than  initiating divorce and ask for your rights . For this your advocate can help you by filing a domestic violence petition where you can ask for accommodation, maintenance and other relief as per the provisions of the "THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005"
You can also ask for maintenance and alimony, a house to stay  for yourself and daughter, and other reliefs in the divorce petition itself. It is always advisable to go ahead with a consented divorce, after settling disputes of maintenance and custody etc, as it will take only 6 months time. 

7. Since you have a daughter and she will need both parents, so  try to convince your husband and try to save the marriage , if you have a marital relationship (physical, sexual and emotional in place).I mean to say that, try for a  compromise and be in the marriage, if both you and your husband have the same feeling for each bother  now, like how it was at the time of your courtship before marriage. No point in dragging a relation ship if it has no life left, at the same time consider your future interest and of your child.
Thresiamma G. Mathew
Advocate, Mumbai
1515 Answers
134 Consultations

5.0 on 5.0

1) You have been married for 8 years and have a child out of this marriage. You are silent on what prompted your return to India. Did he lose employment?

2) Your options are either to allow him time till April as he requested or proceed to file for divorce unilaterally.

3) If you go ahead with a petition for divorce you can also file for maintenance for yourself and your child.

4) An order in a contested divorce takes years to happen. In the meantime you will not be able to marry anyone else.

5) The choice of religious practice should be left to your child. As it is a child teach it your religious ways as well. 

6) Insist on your husband to find a separate accommodation for your nuclear family. A lot of problems can be avoided until he is able to find his way back to the USA.
S J Mathew
Advocate, Mumbai
2246 Answers
110 Consultations

5.0 on 5.0

Dear Querist
If the marriage was solemnized after conversion either you to Muslim or he to Hindu then this marriage is valid or if the marriage was solemnized as per special marriage act then only this marriage is valid.

if both the situation are not in your case then there is no need for divorce, file an annulment petition before court and declare this marriage as Null and void ab-initio.

if situation is any one of the above then file a divorce petition before family court and pray for counselling by family court counselor, the court will allow to do that and the matter may be settled amicably either with saving the marriage or divorce by mutual consent.

you may contact a lawyer personally or over the phone, it will be better.
Nadeem Qureshi
Advocate, New Delhi
4866 Answers
221 Consultations

4.9 on 5.0

you have not answered my query as to how marriage was solemnised . 

if you dont want to stay with your husband file for divorce on grounds of  cruelty
Ajay Sethi
Advocate, Mumbai
45671 Answers
2686 Consultations

5.0 on 5.0

if marriage has been solemnised under SMA you can file for divorce on grounds mentioned in SMA . file for divorce on any of the grounds mentioned in SMA
Ajay Sethi
Advocate, Mumbai
45671 Answers
2686 Consultations

5.0 on 5.0

1. Under which Act did you marry?

2. Were you converted to Islam?

3. If your husband has asked time till april then it will be prudent on your part to wait till then,

4. If he fails to solve your problem after april, talk to him for MCD.
Krishna Kishore Ganguly
Advocate, Kolkata
18520 Answers
449 Consultations

5.0 on 5.0

1. Are you financially independent?

2. Can you pull on with your child being divorced from your husband,

3. If it becomes unbearable for you any longer then ask him to agree for MCD, 

4. If he does not agree for MCD, you can file a divorce suit as per Special Marriage Act,

5. You can ask for maintenance and alimony/compensation from him.
Krishna Kishore Ganguly
Advocate, Kolkata
18520 Answers
449 Consultations

5.0 on 5.0

You should file DV case and seek maintenance from your husband. if your mother in law  can help you then you can live in your matrimonial home and try to settle this issue amicably. In muslim law wife has limited recourse regarding matrimonial relief so don't give consent to decide divorce under shariyat law. You should profess your religion and manage to live in matrimonial home. living many years shall mount pressure on him to restitute conjugal rights. 

Grounds for divorce in special marriage act :- 
Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-
(a) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
(e) 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.
A wife may also present a petitioner for divorce to the District Court on the ground.-

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) that in a suit under Sec. 18 of the Hindus Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974), or under the corresponding Sec. 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.

(2) Subject to the provisions of the Act and to the Rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to the District Court 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.
Shivendra Pratap Singh
Advocate, Lucknow
5066 Answers
78 Consultations

4.9 on 5.0

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