• Husband wants divorce & wife is not ready to give divorce

Hi there, I was married 3 years back when I was in 2nd year of my college and at that time I was 21 years old. At that time my family forcefully married me to marry my sister-in-law's sister. So, both I and my brother were married at that time and place. So, in that 3 years of time, we hardly stay 20 days together and even I didn't touch her because I was not happy from the starting but due to mine and girl side family pressure, we stay together.

 Now I am doing a job in Bangalore and I love someone. So, I need suggestions what should I do now. I need a divorce. So, can you please suggest a way what should I do? I was tortured and forced to do sex and make a relation with the girl but I don't. No one is with me. So, please help. 

 6 months back I tried and told all, that I am not happy and need divorce then girls side told that we'll take both the girl and file a case. Even my brother and sister-in-law is a happy couple.
please suggest a way. From the Law perspective how and what should I do?
Asked 4 years ago in Family Law
Religion: Hindu

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15 Answers

If your wife is not ready to divorce you then you have long legal battle ahead

2) contested divorce cases take 5 years to be disposed of

3) further it would affect married life of your brother too

4) better visit family counsellor to resolve your differences

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

Since there is no relation between you and your wife and she is not agreeing for mutual divorce. You have to file for a mutual divorce on ground of cruelty and it will take time.

Further since there is nothing on record to show wife is cruel or has given any mental cruelty this will be very hard to prove.

and yes this can effect family relations too.

So its better to resolve among family and decide to go for mutual divorce talk to your wife, She would also not like spending rest of life with a man who is not interested in her,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

I can understand that you are caught in a difficult predicament as not only your marriage but even your brother's marriage will be affected by the decision you take.. In such a scenario, you have two options 1) Make a genuine attempt to save your marriage. I understand you were forced into the marriage but that doesnt mean that your marriage cannot be successful. Its how arranged marriage works. Second option available to you is to file a brave alll odds and file for Divorce. However at no costs it is advisable to initiate or enter into any other relation during the subsistence of your marriage. There is unfortunately no easy way out of this mess or relationship, given that you do not have the support of your family.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

This is my response to you:

1. Try talking to your wife and try telling her that, you did not intend to get married to her and she should also give divorce;

2. If she agrees then the process will be simple under the method of 'mutual consent divorce';

3. If there is no way to convince her, then you will have to file for contested divorce;

4. Engage services of a lawyer and collect documents and photographs and file for divorce;

5. This divorce process will take around 8 months to 2 years to finalise;

6. You cannot marry another woman until your divorce is finalised, therefore be careful on that.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Firslty, sir, once you get married then it is irrelevant as to what we’re the situations at that time.

Secondly, and it is very hard for you to prove that you never had sex with each other though.

Thirdly, you should not get marrieds for the second time without getting the divorce from the first otherwise you may be held guilty for bigamy and would have to go to jail.

Fourhtly, as she doesn’t want to give divorce then you can file a case for divorce on the ground which suits you the most.

And it is necessary to know each and every facts from starting till end to suggest you the most suitable to you.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

You can file petition in court to declare marriage voidable u/s 12 (c) of HMA on the ground of force marriage but in the context of Boy, such allegations are tough to prove in court.

And if you do so, repercussion - like criminal, dowry, maintenance, domestic violent case. etc.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Dear Sir,

You can get divorce on the ground of non-consummation. The law is in your favor. You had your marriage forcibly and not consummated. If you wish you can file a case but before that go through the consequences in the following FAQs. Better visit my office. You have consider your decision wisely..

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Non-consummation of marriage a ground for divorce: apex court.

Mental cruelty can cause more serious injury than physical harm to married woman

Spouses owe rights and duties to each otherBegetting children a principal aim of Hindu marriage

New Delhi: The Supreme Court on Tuesday ruled that non-consummation itself would constitute mental and physical cruelty to a married woman and would be a ground for divorce under the Hindu Marriage Act (HMA) 1955. Granting divorce to a woman, a Bench consisting of Justices Ruma Pal and A.R. Lakshmanan said: ``Spouses owe rights and duties to each other and in their relationship they must act reasonably."

Writing the judgment, Mr. Justice Lakshmanan said mental cruelty could cause even more serious injury than physical harm to the married woman.

The Bench said: ``Under Section 13 (1) (iii) mental disorder as a ground for divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation are not possible, it may furnish a good ground for nullifying the marriage because begetting children is one of the principal aims of Hindu marriage where "sanskar" is advised for progeny and offspring.''

The Bench said: ``The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when cruelty consists of not violent acts but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of company and abhorrence, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause.''

Vinita Saxena was married to Pankaj Pandit in keeping with Hindu rites and customs in February 1993. She found that her husband was suffering from schizophrenia and the marriage was not consummated. He was not in a position to perform his matrimonial obligations. According to her, her mother-in-law drove her out after five months and she was not permitted to return again.

Ms. Saxena filed a petition for divorce under Section 13 (1)(1-a) and (iii) of the HMA on the ground of cruelty as well mental disorder. Both the trial court and the Delhi High Court rejected her plea.

Miscarriage of justice

Allowing her appeal, the Supreme Court held that their orders resulted in a grave miscarriage of justice to the woman, who had been constrained to live with a dead relationship for over 13 years. This was a fit case for freeing her from the shackles of the respondent-husband and let her live her own life as a human being.

Denial of Sex to Husband for long time without any sufficient Cause amounts to Mental Cruelty; SC grants Divorce [Read the Judgment]...

A Supreme Court bench comprising of Justice S.J. Mukhopadhayaya and Justice Prafulla C. Pant, in a judgment delivered yesterday, upheld dissolution of marriage between the parties, on the grounds of denial of sex as amounting to mental cruelty....

The Court observed, “Undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse. A Bench of Three Judges of this Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some of the illustrations of mental cruelty.”

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FOLLOWING ARE QUESTIONS ASKED BY MY OTHER CLIENTS….ON THE SUBJECT OF DIVORCE..

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Dear Sir,

My answers are as follows: Before starting you must remember that it is big task and never fight for case. Be cool and face it.

1, I want to know what is procedure to take divorce now and how much alimony i have to give her and monthly expenses as well.

Ans: Alimony means one time full settlement money given to wife. Montly maintenance is awareded during the pendency of case. She is entitled for one only.

2. What’s are rule and regulation for taking divorce?

Ans: It is given below.

3.I want to know whether my wife can claim her rights on the property of my parents like (my parents house) where i and my family live in as alimony.

Ans: No, wife has no share only right for maintenance or alimony. If she is educated and avoiding employment then alimony will be between Rs.2 – 3 lakhs one time settlement.

4.Will court seal my parent house as alimony ? And even she is asking to sign a paper where it will written as tht I can’t meet my son also in my entire life .

Ans: No, your father property cannot be ancestratl property as such your son not entitled for any share. You should not sign any paper. You have pay monthly maintenance to your son till he attains age of majority, only if you have sufficient means/source of income.

5.Can I take my son custody after 7 years from court.

Ans: Yes, even before that.

6.If I want to do settle out court what is the chance of her asking me for alimony amount?

Ans: Rs. 5 to 6 lakhs.

7.On what bases this alimony and monthly expenses is decided?

Ans: On the basis of your personal income.

8.We can deny if they ask huge amount in alimony to pay as I don’t have that much earning or saving with me to give her huge amount of alimony ?

Ans: Yes, definitely. Then she is entitled for monthly maintenance only.

9.What is the difference between alimony and monthly expenses ?

Ans: Alimony means one time full settlement money given to wife. Montly maintenance is awareded during the pendency of case. She is entitled for one only.

10.Do I need to pay monthly expenses only for my son or I need to pay for wife also it is compulsory to give monthly expenses to wife ?

Ans: yes to both. If you do not pay, your belongings will be attached and you will put into jail, if you are purposefully avoiding.

11.Whether she can do any police complain against me or my family ?

Ans: Yes. But now Supreme Court given several instructions to police before arrest.

12.Whether it is bailable or non bailable complaint?What precautions we shud take to avoid this?

Ans: Non-Bailable unders section 498A IPC and 3 and 4 of Dowry Prohibition Act. You must get aniticipatory bail under section 438 of CrPC

13.Can she harm me and family by putting false alligations ? How to take precautions for all this?

Ans: YES, File quashing petition before the High Court.

14.I even want to know that what are strict norms are there for taking divorce?

Ans: It all depends upon evidence, male rarely get divorce but women get very easily, it is the legal presumption, I am saying this as per my experience as judge.

15.Because my wife is continuously telling me now Norms are very very strict what’s are they?

Ans: Nothing to bother, your advocate protect you.

16.Yes she is working if she is working then I am not liable for her maintenance money

Ans: Yes, your burden will be lessened to 50 to 75%

17.what is section 487A IPC in this can we go bail procedure before and keep it ready with us.

Ans: At the end given.

18.What is RCR?

Ans: It is Restitution of Conjugal Rights filed under section 9 of Hindu marriage Act.

19.What are Section 498A and DV Act?

Ans: Given below

20.Under this act will I get bail or not?

Ans: 498A is non bailble, in these days bail is being given to all husbands if there is delay in FIR.

21.But my wife is asking for Alimony separate and monthly maintenance separate Can I combine both as give her?

Ans: No, law does not permit.

22.It is necessary to give her monthly maintenance in her hand or I can transfer to her account?

Ans: to her account.

22.What is Special marriage act and Indian Divorcee Act?

Ans: Please see below. Both applicable in India.

23.what is the procedure for taking bail?

Ans: Your advocate will tell you if you pay fee.

24.If my wife does second marriage will I be still liable to pay her monthly maintenance?

Ans: No.

25.My wife was troubling me a lot and was keep fighting with me for no reason so in the anger I told her if you continue to trouble me like this I will do Second marriage will this create any problem for me in getting the divorce?

Ans: You will be in jail if you marry without divorce under sectin 494 IPC

26.If I am not capable of paying alimony amount if my wife asks for that what court will take the section.

Ans: If you have money and refuse then you will be sent to jail.

27.From almost 9 months she is at her parent home Can she file a complaint against domestic violence against me or my family?

Ans: yes, police create a very good story and register FIR,

28.Mutual Divorce take 6 month time can we do settlement out of court and take divorce fast?

Ans: yes. if you pay alimony and good fee to your advocate it can be settled within 30 days.

Section 9 in The Hindu Marriage Act, 1955

9 Restitution of conjugal rights. — 7 [***] 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.] 9 [***]

Section 498A in The Indian Penal Code

376 [498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun¬ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]

Dear Sir,

Your questions are answered as follows:

1.Can she ask me to come to her place or refuse to come to my place?

Ans: No, it cannot be. Her proposal cannot be accepted by Courts.

2.Can she file false dowry and domestic violence case.?

What punishment will be given to her for false cases ?

Ans: She can file but on its failure no punishment can be given to her saying she lodged false cases, since it is family matter.

3.How long shd I wait for getting divorce if contested ?

Ans: About 2-3 years depending upon the tactics of other side.

4.How frequent can I get visitation rights of child and also during trial ?

Ans: Once a 15 days depending upon age and sex of the child.

5.Does my and parents govt job affected by it also pension settlement as my dad will retire in1 year if she files false cases?

Ans: If she includes your parents in the FIR, there will be some problems in pension settlement.

6.Does separation count from the day she left or the day I stopped visiting her ?

Ans: The day she left you that is deserted you.

7.Is it not the duty of wife to come to husband home as supreme court has granted divorce to husband ,in which wife refused to stay with in laws?

Ans: Yes, you are correct.

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The following are similar FAQs asked by my another client....for your ready reference.

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Dear Sir,

My answers are as follows: Before starting you must remember that it is big task and never fight for case. Be cool and face it.

1, I want to know what is procedure to take divorce now and how much alimony i have to give her and monthly expenses as well.

Ans: Alimony means one time full settlement money given to wife. Montly maintenance is awareded during the pendency of case. She is entitled for one only.

2. What’s are rule and regulation for taking divorce?

Ans: It is given below.

3.I want to know whether my wife can claim her rights on the property of my parents like (my parents house) where i and my family live in as alimony.

Ans: No, wife has no share only right for maintenance or alimony. If she is educated and avoiding employment then alimony will be between Rs.2 – 3 lakhs one time settlement.

4.Will court seal my parent house as alimony ? And even she is asking to sign a paper where it will written as tht I can’t meet my son also in my entire life .

Ans: No, your father property cannot be ancestratl property as such your son not entitled for any share. You should not sign any paper. You have pay monthly maintenance to your son till he attains age of majority, only if you have sufficient means/source of income.

5.Can I take my son custody after 7 years from court.

Ans: Yes, even before that.

6.If I want to do settle out court what is the chance of her asking me for alimony amount?

Ans: Rs. 5 to 6 lakhs.

7.On what bases this alimony and monthly expenses is decided?

Ans: On the basis of your personal income.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

You can file for divorce on grounds of cruelty by wife and in laws by way of threatening you to file false cases against you.

But, you'll need a lot a irrefutable evidence as the onus of proof would be on you to prove your case.

Siddharth Jain
Advocate, New Delhi
5933 Answers
101 Consultations

5.0 on 5.0

You can file a divorce case against her. Try to get mutual Divorce else you need to contest the same.

Prashant Nayak
Advocate, Mumbai
27291 Answers
88 Consultations

4.4 on 5.0

If you do not want to continue this marriage, you may file a divorce case on the grounds of mental cruelty in which you can narrate the events chronologically from the date of marriage in the pleadings of the divorce petition.

Dont be scared by their threats to file false case with police in retaliation.

It is you who has got to decide about your future and life.

However you have to justify the reasons and convince the court on this when you put up the final argument.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

wife can file false case against you of dowry harassment but you can apply for and obtain anticipatory bail from sessions court

2)wife merely chatting with other guys is no ground for divorce . if she had extra marital affair it is ground for divorce

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

Girl side can put up a case if it is false no proof of same then the police shall not register the FIR. Sir such is not the case men are not punished though they can suffer in for some time case goes but in the case no evidence punishment is not given.

Yes you can file a divorce under section 13 on the ground of the adultery.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Sir for adultery physical relationship has to be proved though using these chats cruelty and adultery can be pleased before court. Further she can dispute these chats on grounds that you have done same using her account.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Sex chat is not sufficient to prove wife had extra marital affair

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

Yes sex chat is enough prove. 

Yes these are sufficient prove to prove extra marital affair in the court 

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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