• Right time to directly file divorce petition

I got married in August 2018 (Approx 16 Months). From the day one she was not showing interest in continuing the matrimonial life.. She went to her hometown on May 23 2019 by saying I'll come back in 10 days. It's been 7 months she left me and I talked with her parents and family members and tried my best to convince and asked her to come and continue the matrimonial life. But she refused and started putting all falls allegations and completely going in blaming mode along with his brother. 

With this grounds, I am exhausted and do not want to continue the matrimonial life with her. 

I would to know the grounds to directly file divorce petition, without sending conjugal rights notice to her. Can you please let me know the right time to file divorce petition and also please let me know the steps to initiate this process. Thank you.
Asked 6 years ago in Family Law
Religion: Hindu

2 answers received in 30 minutes.

Lawyers are available now to answer your questions.

17 Answers

Before act think twice. 

If you do hurry you may get divorce decree. 

But what if court order for maintenance or your wife claim maintenance later on. 

First establish that your wife has left  you without any sufficient reason. And you tried your best. 

Court must be satisfied that entire fault lies with your wife. And you also can  protest any maintenance order issued by court. 

At present scenario of court issuing high quantum of maintenance,  you should do some homework before proceeding for divorce. 

Everything can not be explained here.  Some overall idea some guidance can be made available here. 

You discuss the issue pointed out here at length with some local lawyer. 

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

1) you can file for divorce on grounds of mental cruelty 

 

2) wife refusing to have sex amounts to mental cruelty 

 

3) wife refusing to stay with husband amounts to mental cruelty 

 

4) in case wife files false dowry harassment case apply for and obtain Anticipatory  bail from sessions court 

Ajay Sethi
Advocate, Mumbai
99776 Answers
8145 Consultations

Marriage is a serious thing in life if not most important one. So do not make a child play out of it.

After marriage the compatibility issue in most cases takes lot of time to get resolved and hence on the drop of hat as you have mentioned do not think in terms of divorce.

So remove all the negative thoughts from your mind, take your wife to some holiday trip . With passage of time in private every issue gets solved.

Have patience and take positive steps to tide over the crisis. Divorce is no solution for a marital problem. 

Devajyoti Barman
Advocate, Kolkata
23653 Answers
537 Consultations

- As per Supreme court judgement ,  wife is expected to move in with the relatives of their husbands, follow the rules and customs of their home, and ideally, blend in seamlessly as a new daughter. 

- Further, the court granted divorce to a man on the grounds of “cruelty” after his wife refused to share a home with her in-laws.

- Further, Wife Living Separately from Husband Without Any Reason Can’t Get Maintenance, and further this is a good ground for getting divorce from the court of law.

- If wife is not supporting her husband for the enjoyment of life and denying relation , then the husband can get divorce after filing a divorce petition before the court on this ground.

-  Hence, as per law, she cannot deny living with you, under any condition.

- Since, you dont want to continue relation with her , then you should file a divorce petition before the family court , on the ground of cruelty and the above mentioned laws. 

- For filing a Divorce petition, you will have to enclosed the proof of marriage, address proof , and photograph of marriage if any. 

- Before filing the above said suit , you are suggested to lodge a complaint/information to the police ,after mentioning that you are facing mental harassment & agony due to her continous desertion , and also due to getting threaten for involving in false cases of dowy demand.  

 

Good luck and dont forget to rating Positively.

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

You can file divorce case on cruelty and desertion ground. And she is not interested in Continuation of  marital life with you. 

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

As your wife has deserted you from last six month at any time you can file a divorce petition on the ground of desertion and cruelty you can add also in case you have any other ground which you can prove in the court in case you do not want to go for the divorce petition now then you can file Restoration of conjugal rights under section 9 of Hindu Marriage Act and let your wife be responded to this petition if this turning back to your home then it is ok otherwise you can find divorce on the basis of ex Parte degree of rcr

Vimlesh Prasad Mishra
Advocate, Lucknow
6851 Answers
23 Consultations

A divorce petition should be filed on grounds of cruelty and desertion.but it can filed only after 2 more years. Let her stay at her parent's house. File the divorce petition after the minimum period is over.

Regards 

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

You can file divorce on ground of cruelty against your wife that she is harassing you , intimidating and further left you and not doing her conjugal duties.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Dear Sir,

It is better to file Restitution of conjugal rights against your wife in family court.

If RCR is passed it will help you in proving that you are innocent, she cannot claim maintenance from you
she is deserter in the eyes of laws , she has no right of maintenance in future, husband will be in safer place
RCR will be passed and if she fails to join him within one year ,it a ground for divorce for husband for failure of restitution decree

If she denies to cohabit with you even after the R.C.R. decree is awarded then you can file an suit for execution of such decree under order 21 Rule 32 of the Civil Procedure code and then after a lapse of one year from the date of such R.C.R. decree you can file divorce petition u/s 13 (1-A)(ii) of the Hindu Marriage Act, 1955. If conjugal right is not restored within one year of getting the RCR decree, the aggrieved party is eligible to get divorce.

 

  1. she can file any case as she likes
    this RCR will dilute the seriousness of her cases
    3. if she doesnt join with you as per the court order within one year then that will become the ground for you to apply for the divorce

 

  • You get a leverage in maintenance & alimony, since you are ready to take care of her needs and necessities but she doesn’t want to join you.

 

SEC 9 OF HMA – restitution of conjugal rights. it is a prayer by a  petitioner; summon by a competent court ;  and order by a court to the spouse who left her matrimonial duties without sufficient reason.

Netravathi Kalaskar
Advocate, Bengaluru
4951 Answers
27 Consultations

 

 Opt for contested divorce, then any one of the conditions have to be satisfied:-

(a)  After marriage, voluntary sexual intercourse with any person other than his/her spouse

                       OR

(b). Treated the petitioner with cruelty

                       OR

(c).  Has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of petition

                                OR

(d)   Has ceased to be a Hindu by conversion to another religion

                                      OR

(e).  Has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder

                                       OR

(f). Incurable form of Leprosy

                                       OR

(g). Incurable form of VD

                                       OR

(h). By entering into any religious order

                                       OR

(I)   Has not been heard of as being alive for a period of 7 years or more.

 

for Mutual Consent Divorce.

1. Let you convince your spouse to agree for Mutual Consent Divorce. Better to  opt Mutual consent divorce route and mutually the husband and wife can take decisions in the matter of child custody, finance, assets, maintenance or alimony, returning the jewellery given by  your parents and relatives etc.

  t2..In the joint petition to be filed by both husband and wife for dissolution of their marriage U/S. 13-B of the Hindu Marriage Act (Mutual consent divorce) , the custody of child, maintenance, finances, property matters, visitation rights will be mentioned.

 r3.The reason can be mentioned as due to irreconcilable differences they have been living separately since one year, and their marriage has broken down irretrievably and efforts to bring about reconciliation have also failed.

4. The time for concluding mutual consent divorce will be 6 months and this cooling period of 6 months can also be waived off in certain cases.

 

Shashidhar S. Sastry
Advocate, Bangalore
5623 Answers
339 Consultations

You can file the contested divorce on grounds of cruelty. 

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

You can file for divorce after completion of one year from date of marriage.

You need to have substantial proofs in support of your case to prove cruelty against her.

She may retaliate with 498-A, DVC, Sec.125 / Sec.24 etc., cases against you & your family members.

 

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

You may issue a legal notice to her asking her to return to the matrimonial fold since she had voluntarily left or abandoned the matrimonial home without any valid reason.

If she is not taking any steps to return within the time prescribed in the legal notice then you may initiate steps to institute a divorce case on the grounds of cruelty 

You may consult an advocate in the local and proceed on the suggestions made.

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

You can file section 9 RCR  if she not contest then court may award you exparte RCR. execute this RCR decree on her and if she does not return to cohabit with you within one year from the date of awarding of the said decree then you can file a petition u/s 13(1-A)(ii) of the H.M.Act, 1956 seeking divorce on such grounds of her not honoring the decree. If she does not appear during the proceedings the divorce decree can be awarded ex-partee. She cannot claim any maintenance while you file such divorce petition nor would she can claim alimony. 

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

You can file divorce petition now on ground of mental cruelty by your wife by refusing you build physical relationship with you and leaving you without any sufficient cause as you insist on having physical relationship.

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

Dear Querist

Immediately file a divorce case against her under section 13(1)(ia) of Hindu Marriage Act-1955 before the family court where both of you were last reside together, without issuance of any RCR Notice. after your case if she filed any case against you and your family than her complaints may be treated as counterblast case and you may get sympathy of the court too.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6348 Answers
302 Consultations

  1. As per the information mentioned in the present query, makes it clear that there can be the two ground material on which you can file the divorce petition.
  2. One would be that you can file it on the ground of mental trauma/ cruelty as one year of marriage has been passed away which is also the requirement.
  3. Second would be the desertion, but for that two years time is indeed.
  4. So, both these cannot be come together, so would advice you to wait for some more time and then file both the grounds.
  5. As chances would be more to win if multiple grounds are there.

Sanjay Baniwal
Advocate, South Delhi
5477 Answers
13 Consultations

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer