• Divorce petition by husband

Can a husband file divorce First? For cruelty against wife who is demanding entire house for which 90% is paid by him though she is a co applicant/owner , EMI is paid by husband, wife is very abusive does not cook food, Abuses his parents and family members, the have a child (Son) who is 8 year old, wife also is a working professional (working from home) earnings are more than husband, her mother is constantly interfering , though wife has a separate house in her own name, she is asking for the flat of her husband to be given to her for securing Sons future Is there anything the law can do to protect husband's interest,Can he file for divorce first? Will that be a sensible move to take or should he refrain? Note multiple mediation efforts have taken place, situation improves temporarily and within few months she is back to her antics, Seems she is a greedy person Please advice
Asked 2 months ago in Family Law from Dombivili East, Maharashtra
Religion: Hindu

husband can file for divorce on grounds of mental cruelty 


2) wife abusing husband amounts to mental cruelty 


3) no need to bow down to wife pressure tactics 

Ajay Sethi
Advocate, Mumbai
61305 Answers
3721 Consultations

5.0 on 5.0

Dear Sir,

Yes, you have the legal right to file for divorce if your spouse has been behaving cruelly. There is no strict legal definition and there are no strict guidelines on what amounts to cruelty - the courts will decide if the behaviour of your spouse does in fact amount to cruelty. It will depend on facts and how the courts interpret cultural norms. Please read about some of the decided cases below to get an idea of what would be considered cruelty by the courts:

If my spouse hurts me physically, will it be considered cruelty?

Yes, if your spouse is physically harming you, it is definitely cruelty. However, cruelty can take many forms does not have to include physical violence. If your spouse verbally abuses you or mentally tortures you, it can also be cruelty.

Does wanting to stay separately and not with my in-laws amount to ‘cruelty’?

Generally, the courts have recognized that today women might not want to live in a joint family set-up and instead live separately with their husband and children. Most courts recognize that making such demands would not amount to cruelty. However, the Supreme Court has recently held that continuously insisting on separating your spouse from his family without any reason amounts to cruelty.


Netravathi Kalaskar
Advocate, Bangalore
2447 Answers
6 Consultations

5.0 on 5.0

Yes, Husband can file a divorce first.


But in your case there can be better approach than filing for divorce.


Why don't you make a Will stating that after you the flat will belong to your son. And if he is a minor, then your wife will be the guardian to the property till he attains majority. This way she might feel secure.

Also, you can ask her to write similar Will as she is the co-owner.


Basically, if you file for divorce, you will end up loosing the entire flat! So better try something else.


These problems that you are mentioning are common among many couples.

Sandeep Prakash
Advocate, Bengaluru
268 Answers
2 Consultations

5.0 on 5.0

Dear Client,

Any one can file diovrce on various grounds of cruelty. And wife has no claim in husband property except right to residence in shared house hold.

And ownership in house is acc. to contribution towards purchase and if questioned, same shall be declare by court.

Yogendra Singh Rajawat
Advocate, Jaipur
9801 Answers
8 Consultations

4.6 on 5.0

If mutual consent divorce is not possible then file divorce on mental cruelty grounds. 



Mohammed Mujeeb
Advocate, Hyderabad
7067 Answers
3 Consultations

4.5 on 5.0

no law stops the husband to start litigation first (divorce also)

though many efforts already been done still I advise you to settle the matter amicably involving close relatives,

if failed,

go for Mutual Consent Divorce, which seems tough due to her demand of House, for which you paid 90%,

now, as you know yourself (financial status) better than anyone (me) therefore, it is you who can take the decision whether giving a house for a peaceful life is a good bargain or not?

ALIMONY is basically a consideration to be given to the wife for a peaceful life (rest) and amounmt depends upon financial status


Suneel Moudgil
Advocate, Panipat
649 Answers
1 Consultation

4.3 on 5.0

1) If flat is on joint ownership name at the time of purchasing flat in the agreement if sharing ratio is mentioned that will be applicable for both of you, otherwise 50-50% sharing ratio will be there if not mentioned.


2) For husband time being you should contact family counselor for counselling both of you for better and healthy family life.



Ganesh Kadam
Advocate, Pune
6426 Answers
47 Consultations

4.9 on 5.0

Dear Sir,

- As per shared information, you may file divorce petition on ground of Cruelty and  non-cohabitation clause. 

- There is no such rule that husband can not file Divorce petition first. (THE HINDU MARRIAGE ACT, 1955, clearly specify U/S 13. (1) that either party can submit the petition on behalf of cruelty by other party U/S 13 (1) -(ia).

- Try to have enough evidence to prove the cruelty in your favor. 

- Try to soft corner for restitution of marriage but due to condition became worse not possible




Vivek Arya

Vivek Arya
Advocate, Gurgaon
302 Answers
3 Consultations

5.0 on 5.0

Yes husband can file divorce against his wife on the grounds as mentioned under section 13 hindu marriage act like of cruelty adultery or desertion. Yes the husband can take ground of cruelty can site incident , cruel nature abuse by wife and can file divorce petition.

He can take this move if there are sufficient evidence to prove cruelty and he doesn't want to be in this relationship of marriage with her, 

Shubham Jhajharia
Advocate, Ahmedabad
15304 Answers
63 Consultations

5.0 on 5.0

  1. Yes even the husband can file for divorce.
  2. For any further advice, you will have to come to my office for exhaustive consultation 
  3. Your number is not shown to me here. So [deleted] (nine eight two zero eight nine seven eight eight four) 
  4. Seek appointment by calling me up.
  5. You can leave your number in feedback if you desire me to call you

Netra Mohanchandra Pant
Advocate, Navi Mumbai
751 Answers
1 Consultation

4.4 on 5.0

She can't claim ownership of the said house. She can only claim residence rights in the same. She can claim alimony depending upon your income

Prashant Nayak
Advocate, Mumbai
8291 Answers
11 Consultations

4.8 on 5.0

  1. As per the information mentioned in the present query, makes it clear that your wife has been doing such acts which fall under the ground of cruelity for seeking divorce.
  2. And yes there is now law, that may prohibits a husband to file he divorce petition.
  3. In fact, if you happen to succeed in getting the decree of divorce onthw ground of cruelity then you might be saved from giving any alimony in whteosver form to her.

Sanjay Baniwal
Advocate, South Delhi
3996 Answers
7 Consultations

5.0 on 5.0

There is no law prohibiting anyone to file a divorce case first, either of them can file divorce case against the other on the grounds they may rely upon.

If the property is jointly owned then she will be having 50% share in it as a right, however she cannot claim the entire property as a right even on the pretext of allotting it to her son or any other reason.

She will not be eligible for maintenance as she is employed and earning a handsome income as salary.

You can decide further course of legal action based on the prevailing circumstances and compelling atmosphere.



T Kalaiselvan
Advocate, Vellore
51403 Answers
612 Consultations

5.0 on 5.0

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