Hi, Need an advice. My brother has been married since last 4 months. Husband and wife now does not live together, its been a month. This all happened because my brother got her back bitting with her MOM when he had that recorded. Her parents are not even bother about all this instead making her her that. My family tried to get her back 2 days ago but her father refused that he can not let us meet her. My northerners not want to live with her. She is under commence influence of her parents. When she was at home, she used to sit alone for 5-6 hrs 8n a room alone, does not speak anything to my family member or her husband much. I myself tried to make both husband and wife understand but she kept on looKing at us without blinKing but did ni5 say anything and later that day, without inforMing us was roaming around alone for at least an hour. I suspect that she has some mental issue as well but not 100% sure. But deals to her parents well without issue. She is not even able to perform her daily married Life dutys. My brother no Longer wants to Live with her and looKing for divorce bcz we are scared that what if she take a wrong step, if she comes back. Please suggest what to do? I make you assure that nothing wrong has been done by my parents or brother. We consulted a lawyer but he said you can not go for divorce unless it's been 6 months to marriage but can send notice under section 9. Is It true?
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Hello,
Not 6 months, divorce can not be filed before a year of marriage. 6 month is the cooling off period in mutual consent divorce.
So yes you can not file divorce at this juncture, but ypu may file a suit for judicial separation; no beed to file section 9 case.
Regards
1) only in exceptional circumstances can you file for divorce before expiry of one year of marriage
2) since your brother has been married for only 4 months wait for expiry of one year then file for divorce
3) if your brother has evidence that wife is suffering from mental illness and has suppressed said facts at time of marriage he can file for anullment of marriage on grounds of fraud
Firslty, it is rightly suggested to you that you may not go for the divorce until six months are over, but he has been putting you in more trouble by making the case of section 9 as this section talks about RCR to bring back your wife at your home which you do not want.
Secondly, many lawyers do that for the sake of lengthy plus profitable litigation for them.
Thirdly, I advice you to please prepare a good legal notice to her stating that you may be going for the divorce on several grounds the moment six months are over otherwise go for mutual to clear the thing in a good way.
Fourthly, in this way, you may be able to justify your end as to what exactly you want either divorce or RCR.
Fifthly, this may also sage you from any false allegations against your family member in future.
What is suite for judicial separation?
judicial separation is an instrument devised under law to afford some time for introspection to both the parties to a troubled marriage.
2)Either party to the marriage, whether solemnized before or after commencement of the Hindu Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation.
Your Brother cannot file for divorce before completion of one year of marriage.
Alternatively a petition for judicial separation can be filed in order to safeguard him from your sister in law's action.
The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955. The section reads as under:
A decree for judicial separation can be sought on all those ground on which decree for dissolution of marriage, i.e. divorce can be sought.
Though section 10 of the Hindu Marriage Act does not provide any time as to how long judicial separation can last. But section 13 of the Act provides that if there is no resumption of co-habitation between the parties one year after the decree for judicial separation is passed, the parties can get a decree for divorce on this ground itself.
Dear,
Your advocate is not full right, it's 1 year of time after marriage.
Yes you can file section 9 application.
Divorce petition within one year of marriage is not allowed as per law.
Still you can proceed and pray for leave to file it.
You have to prove urgency in your matter.
1. Well, for filing a suit for divorce you need at least one year to expire and any suit filed before that requires permission of court.
2. if you are thinking in terms divorce then there is no need to send notice or suit to be filed for RCR.
3. The instances you have mentioned are all good grounds for divorce if duly proved in court.
4. If the house belongs to your parents and your brother stays away then they can refuse to allow his wife to stay in the same house and then seek injunction to restrain her from causing disturbances or from forcefully entertain into the house.
The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955.
Sir a divorce petition cannot be filed before 1 year of the marriage section 14 hindu marriage act until there are exceptional circumstances. Further can talk to her if she is also looking for divorce then permission under section 14 can be obtained from high court and a divorce on mutual ground can be filed.
As there is no exceptional circumstance in contested divorce on that ground permission shall be rarely granted for filling before one year.
though restitution and judicial separation can be filed
Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e. divorce. The reason for the presence of such a provision under Hindu Marriage Act is the anxiety of the legislature that the tensions and wear and tear of every day life and the strain of living together do not result in abrupt break – up of a marital relationship. There is no effect of a decree for judicial separation on the subsistence and continuance of the legal relationship of marriage as such between the parties. The effect however is on their co-habitation. Once a decree for judicial separation is passed, a husband or a wife, whosoever has approached the court, is under no obligation to live with his / her spouse .
The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955. The section reads as under:
A decree for judicial separation can be sought on all those ground on which decree for dissolution of marriage, i.e. divorce can be sought.
Hence, judicial separation can be had on any of the following grounds:
Adultery
Cruelty
Desertion
Apostacy (Conversion of religion)
Insanity
Virulent and incurable form of leprosy
Venereal disease in a communicable form
Renunciation of world by entering any religious order
Has not been heard of as being alive for seven years
There are in various cases where judgments are in favour where 6 months not required.
You can file for contested divorce under grounds mentioned in sec 13 of hindu marriage act. For contested divorce on any of those grounds you do not need 6 months completion period.
Judicial separation is when court grants you permission to live separately but without divorce.
Divorce case cannot be filed before completion of one year from the date of marriage.
The marriage is hardly 4 months old, hence he may have to wait for another 8 months for filing the contested divorce on the grounds of mental cruelty.
In the meantime if he an get medical evidences for getting treated for mental health he may file a petition seeking annulment of the marriage on the basis of her mental ill health condition prior to marriage which was a fact and materiel for the marriage.
Do not file a RCR petition because it is nothing but a waste exercise.
If he does not wants to live with her then what is the use of filing this RCR case.
What is suite for judicial separation?
Judicial separation is an instrument devised under law to afford some time for introspection to both the parties to a troubled marriage.
Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e. divorce.
The reason for the presence of such a provision under Hindu Marriage Act is the anxiety of the legislature that the tensions and wear and tear of every day life and the strain of living together do not result in abrupt break – up of a marital relationship.
There is no effect of a decree for judicial separation on the subsistence and continuance of the legal relationship of marriage as such between the parties.
The effect however is on their co-habitation.
Once a decree for judicial separation is passed, a husband or a wife, whosoever has approached the court, is under no obligation to live with his / her spouse .
For divorce your brother needs to wait till the time his marriage is one year old.
The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955.
Judicial Separation is a step prior to a divorce. Your brother and wife will be legally separetd, though they will not cease to be husband and wife.
When a decree of judicial separation is obtained, the parties remain married as the decree of judicial separation does not dissolve their marriage (unlike a decree absolute in divorce). Instead, the decree of judicial separation simply relieves the parties of their duty and obligation to live together.