• Regarding divorce

I don't know which court it belongs. But I want divorce from my husband. Its been 1 year and 3month for my marriage. He is disrespectful for my parents especially for my mom. I have son now, who is 3 month old. My husbands and his family life style and mentality is different than mine. They are forcing me to indulge in there. I m happy my only son but my husband want some more children. I am in my maternity period but He is forcing me to have more and not ready to take any precaution. 

So I want divorce and my son's custody. I am educated completed my BE in computer science. I can afford a good life for me and my baby. Don't want anything from husband. 

Please help, I really love my baby care about his future and need some suggestions rega ding this.
Asked 4 months ago in Family Law from Bangalore, Karnataka
Religion: Hindu
Hello
 It's only been an year of your marriage but if you really want a divorce then you have to file a petition in a family court stating that there are irreconcilable differences between you and your husband and incomparable temperament and therefore you want a divorce.
If your husband agrees then you can have a divorce with mutual consent but if he does not then you have to contest it.
In either case....you have to file a petition in the family court
Regards
Rahul Mishra
Advocate, Lucknow
1671 Answers
7 Consultations

5.0 on 5.0

You need to go to family court and submit your petition for divorce. You can get the custody of the child as well as maintenance if you are not working
Sudhindra Bhat
Advocate, Bangalore
49 Answers

Not rated

Visit marriage counsellor with your husband to resolve your differences 

If reconciliation fails then file for divorce on grounds of mental cruelty 

You cannot b forced to have another child against your wishes 

Husband abusing mother in law amounts to mental cruelty
Ajay Sethi
Advocate, Mumbai
53250 Answers
3188 Consultations

5.0 on 5.0

Dear Madam,

You can get mutual divorced if he agrees or else you have to put some cases against him which will be made known to you in personal discussion. The mutual divorce and contesting divorce are described below. Choose any one.
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How To Get A Divorce In India
http://chaynindia.com/law-divorce/
http://www.divorcelawyers.co.in/how-to-get-a-divorce-in-india/
There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872.Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 &The Muslim Women(Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.
A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it clear broadly that the Divorce can be obtained by two ways:
•	Divorce by Mutual Consent
•	Contested Divorce
1. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses.
Duration of Divorce in Mutual Consent varies from one month to six months or more from States to States and as per the High Court directions.
2. Contested Divorce	
As the name suggests, you will have to contest it. Indian laws in general recognizes cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years), Unsoundness of mind( of Incurable form), Impotency, renouncing the world, etc. Aggrieved party has to take one of the above grounds of divorce and will have to file the case in the Court of appropriate jurisdiction. Party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly.
ANNULMENT OF MARRIAGE:
Marriage in India can also be dissolved by means of Annulment. Procedure for annulment is same as that of Divorce except that the grounds for annulment are different than that of divorce. Grounds for annulment are fraud, pregnancy of wife by person other than the husband, impotency prior to the marriage and subsist even at the time of filing the case.
Once annulment is granted by the Indian Court, status of the parties remains as it was prior to the marriage.
VOID MARRIAGE:
There are certain form of marriages which are null and void despite the performance /solemnization of the same. Marriage is void under following circumstances:-
a) neither party has a spouse living at the time of the marriage
b) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
c) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Time duration for obtaining divorce varies from case to case & place to place. Generally speaking, contested divorce proceedings take approximately 18 to 24 months. Mutual Consent Divorce varies from 4 weeks to 7 months and more. In Delhi, Mutual Consent Divorce is possible with in two to four weeks.
Generally speaking procedure for obtaining Divorce in all forms of law (based on religion) is same with only bit of variation.
There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872. Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.
How to file divorce petition by mutual consent? What happens in the court?
The divorce petition is in the form of affidavit, which is to be submitted to the family court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months.
After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.
Can any one party withdraw the mutual consent petition after filing in the court? What will happen by that?
During this period of 6 months when the petition is pending in the court, any of the partner is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent.
In such circumstances, the court grants no divorce decree.
What can the other partner do under such circumstances?
There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950.
In such a situation divorce can be granted only on certain specified grounds like cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.
Can the spouse consent for remarriage without getting divorce from existing partner?
Remarriage without getting divorce is a punishable offence with seven years imprisonment.
If either of the spouses is not heard for a long time, should the divorce be applied?
If there is proof of the absence of spouse without any information to the other spouse about his whereabouts for a continuous seven years period, a petition should be filed in this regard in the court.
When the divorced persons can remarry?
Depending on the nature of decree, after the expiry of three months from the date of decree if no notice of appeal is received by the person remarrying from the other person.
What are the costs involved in getting divorce by mutual consent?
If you hire an advocate, it will be somewhere from Rs 25,000 to Rs 75,000.
But if you get the documentation done by us and file on your own without a lawyer, the cost will be very very low. You will not have any problem in filing your petition with our guidance, and you will save a lot of money.
How much time does the whole process take from filing the mutual consent petition in the court till the passing of the decree (judgment) by the court?
It takes from six months to one year from the date of filing of the petition. It varies from case to case & place to place.
Kishan Dutt Kalaskar
Advocate, Bengaluru
3064 Answers
55 Consultations

5.0 on 5.0

1. Better to file for a Mutual Consent Divorce by you and your husband on mutually agreed terms. MCD is the best option, which makes divorce less stressful by saving time, effort and money.
2. By avoiding long litigation, couple can move on with their lives just after 6 months' of filing for divorce ( this 6 months cooling period may also be waived off in exceptional cases).
3. In MCD the return of articles, rightful division of finances and assets, agreement over maintenance or alimony, etc.. can be settled amicably.
4. Similarly in the matter of custody of child, support money, visitation rights. 
5. Regarding child care, spouse can agree to a lumpsum payment or a staggered payment to the person who will be the custodian of the child either at different stages of child's education or a monthly amount with increase in the rising cost of living.

6.. In MCD, both you and your husband can decide about the custody of your child with you on mutually agreed terms.

7.
To file for a divorce petition, you must have lived separately from your husband for 1 year.
8. Many issues can be mutually settled in mutual consent divorce.
Shashidhar S. Sastry
Advocate, Bangalore
1750 Answers
117 Consultations

5.0 on 5.0

Hi, you can file a divorce petition in court on the grounds of mental and physical cruelty .. The custody of child is likely to stay with you as he/she is a infant
Hemant Chaudhary
Advocate, New Delhi
3890 Answers
16 Consultations

4.9 on 5.0

This is my response to you:
1. You will need to apply for separation and then divorce under the grounds of cruelty;
2. Then you can also file for interim or permanent maintenance if needed by you;
3. More importantly file a separate application for full custody of the child;
4. If you want then give certain visitation rights to your husband in respect to your child;
5. Also if your husband agrees with you then file for Mutual Consent Divorce otherwise go for contested divorce;
6. Rest assured, take legal steps from your side;
Gowaal Padavi
Advocate, Mumbai
1525 Answers
2 Consultations

5.0 on 5.0

Firstly, Mam, with all respect I must appreciate the thinking that you are carrying with you.

Secondly, Yes, he behaviour of your husband toward you fall under the category of divorce in the ground of cruelity.

Thirdly, as you are working and capable of taking good care of your child, you may not get any maintenance.

Fourthly, and I think that maintenance is also not the question for you.

Fifthly, but still, I would advice you to ask for the same at least for your child as to make him realise that just having more and more children is not right as they require to be taken care good.
Sanjay Baniwal
Advocate, South Delhi
2404 Answers
5 Consultations

4.9 on 5.0

You can file a divorce on ground of cruelty under section 13 hindu marriage act with the family court. Further since the age of child is below 5 years custody is generally with mother only so you can file along an application for child custody also.
Also if he agrees since you do not want anything as o maintenance you can go for mutual divorce if he doesn't then you have to contest the divorce and further bring on record before the court mental cruelty you are suffering.
Shubham Jhajharia
Advocate, Ahmedabad
8531 Answers
26 Consultations

5.0 on 5.0

Dear Concerned, 

Under such and present circumstances when its you who want to separate from your husband - you should leave your husband's house and start living separately and file a divorce. PLEASE note you may not be eligible for any maintenance as the reasons mentioned above i.e dont want a second child and you dont want to follow lifestyle of your husband's family are no ground for divorce . 

NOW THE OTHER SIDE - Life is short - you need to live it the best way you could - you have a toddler who have a father's name to him - It is extremely difficult to be a single parent - THINK THINK THINK - Divorce is not the only solution ..... Speak to you husband - speak your heart out of the issues you have with him or his family - then take a decision.......

Best of Luck
Atulay Nehra
Advocate, Noida
1123 Answers
38 Consultations

4.7 on 5.0

1. You are free to file a petition for dissolution of marriage on the ground of cruelty but if your husband is ready then mutual divorce petition can also be filed which is hassle free and takes only 6 months.

2. To retain the custody of your son you may file a petition for child custody in the court of Guardianship Judge. Since the child is only 3 months old the court will not uproot him from you, but visitation rights will be granted to the father.
Ashish Davessar
Advocate, Jaipur
24643 Answers
688 Consultations

5.0 on 5.0

Custody of child rest with mother only, 
You can file for divorce on the ground of mental cruelty and forced intimacy during crucial maternity period.
Yogendra Singh Rajawat
Advocate, Jaipur
6113 Answers
5 Consultations

4.7 on 5.0

Try to bring him to table and agree for a divorce by mutual consent and you may ask any relative to intervene if required. And if he doesn't agree then you can file a divorce petition under ground of cruelty.
Sunita Bafna
Advocate, Mumbai
20 Answers

Not rated

The child will remain in the custody of its mother till it attains 5 years of age.

If you feel that it is intolerable to live with him anymore then you can decide tgo quit the married life b filing a divorce petition before the concerned family court on the grounds of cruelty.

The burden to prove your allegations against him while seeking divorce will fall on your shoulders.
T Kalaiselvan
Advocate, Vellore
43320 Answers
488 Consultations

5.0 on 5.0

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