• Divorce

I m married for 14 years. i ve a son of thirteen years. now i want divorce from my husband. but he doesn't want. can i get divorce. after divorce what benefits i ll get from him. my son wants to stay with me. is it possible after divorce.
Asked 1 month ago in Family Law from Kolkata, West Bengal
Religion: Hindu

Divorce can be had on certain specific grounds as mentioned in the law. You have to prove that those grounds exist. Custody issues can be solved wither by negotiations or by filing a case. Your child's opinion does matter.

Rahul Mishra
Advocate, Lucknow
6749 Answers
15 Consultations

5.0 on 5.0

After divorce pulling out monetary support from your husband is a tough job though there are judgements to the effect but it is better you settle everything before divorcing your husband, you can get a house , monetary support for yourself and your child as well as you have to give visitation rights to your husband also detailed history of all incidents are needed for better guidance

Aveek Bose
Advocate, Kolkata
1085 Answers
7 Consultations

4.7 on 5.0

You can file fir divorce on grounds of mental cruelty 

 

2) seek interim maintenance and alimony from husband 

 

3) seek sole custody of your child 

 

4) you have to prove allegations made in divorce petition 

 

5) contested divorce proceedings take 5 years to be disposed of 

Ajay Sethi
Advocate, Mumbai
73013 Answers
4384 Consultations

5.0 on 5.0

What is the reason that you want to get divorce from him?

If he's not agreeing for mutual consent divorce then you can file a contested divorce case on the grounds of cruelty. 

For child custody,  if the child is with you in your custody then he only can file a child custody case,  you can challenge the same properly. 

T Kalaiselvan
Advocate, Vellore
62966 Answers
814 Consultations

5.0 on 5.0

if you want to terminate the matrimonial knot, then, try to settle the matter amicably with your husband involving elders/relatives/friends etc and go for Mutual Consent Divorce which will be decided in 6-18 months, and you both will be free to live life with your wish,

don't forget to draft an MOU before approaching Mutual Divorce, which is the most essential and important part of a Divorce case,

some basic points to keep in mind and put in writing through an MOU before filing the petition for mutual consent divorce are custody of kids, distribution of assets (movable/immovable), quash/withdraw of pending litigation if any, Maintenance (present/future), Alimony, mode and time of making the payment, streedhan, future litigation, etc.

if failed, you are advised to file/claim

498a complaint (for causing mental, emotional, physical and monetary abuse, etc) 

Domestic Violence case (for causing mental, emotional, physical and monetary abuse, etc)

you have rights to claim residence, protection, compensation, maintenance,

the lodging/filing of said cases will force your husband to be ready for the Divorce,

if you do not want to opt the divorce presently, you can ask for judicial separation also, 

 


you can claim the alimony from your husband, however, the amount of MAINTENANCE/ALIMONY depends on various factors such as Living Standard, Financial Status, Properties held, assets, responsibilities, custody of children, etc, therefore, without going through deeply with facts its really unfair to tell an amount. a detailed personal discussion will enable me to answer this promptly


The mother usually gets custody of the minor child, under the age of five. but after five it can be given to any parent.

various factors are considered while deciding custody petition like financial status, the welfare of the child, will/consent of the child, educational status, living standard, place, extra amenities, etc

The most important factor is the BEST INTEREST OF THE CHILD.

Suneel Moudgil
Advocate, Haryana
1713 Answers
3 Consultations

4.7 on 5.0

1. You can file for divorce individually if any of the grounds mentioned in Hindu Marriage Act is attracted to your case. Your query does not reveal any ground for divorce.

2. Since your son wants to stay with you the court has to factor in his wishes.

3. You can also seek maintenance for yourself and your son from your husband.

Ashish Davessar
Advocate, Jaipur
27730 Answers
820 Consultations

5.0 on 5.0

So you are looking benefits in Divorce. In this case where the husband is not willing for divorce the procedure will of contested divorce and you may claim the maintenance for self and child along with custody of child. Please be aware that any child over 5 year remains in custody of father and you need a very strong reason for custody.

Vimlesh Prasad Mishra
Advocate, Lucknow
6299 Answers
20 Consultations

4.9 on 5.0

1. See if your husband has treated you with cruelty or deserted you or is living in adultery then on any of these ground you can file for contested divorce before family court.

2. You can seek maintenance from.husbnabd for your self and the child.

3. You can seek custody of child, seeing age of child court may ask child with whom he wants to stay.

Shubham Jhajharia
Advocate, Ahmedabad
23445 Answers
94 Consultations

5.0 on 5.0

Dear Madam,

To get a divorce one should have a valid reason.. If wife has a valid reason and husband doesn’t want to give her divorce then she can file for a contested divorce.. Even in this case, the husband can fight the case to save the marriage.. It all depends on the circumstances and issues in the marriage..

If you your husband abuses, ill-treat you, you can file a case of domestic violence/ u.s 498A of IPC for harassment and cruelty. Along this if you are wholly dependent on your husband , please file a case for maintenance u/s125 Cr.p.c and simultaneously you can file petition for divorce on the ground of cruelty, which is a valid ground of divorce under Hindu Marriage Act.

Yes, you can also file child custody case and get custody of your child.  After divorce you will get one time alimony or monthly maintenance to you and your child.

Netravathi Kalaskar
Advocate, Bangalore
4722 Answers
24 Consultations

4.8 on 5.0

What is your reason for divorce ?

You can file contested divorce on the ground of mental/physical cruelty. You and son can claim maintenance. If husband have plenty of properties than one of them.

Yogendra Singh Rajawat
Advocate, Jaipur
17397 Answers
21 Consultations

4.6 on 5.0

you can file for divorce on grounds of mental cruelty seek interim maintenance and alimony from husband 

 

also seek sole custody of your son 

Ajay Sethi
Advocate, Mumbai
73013 Answers
4384 Consultations

5.0 on 5.0

First file contested divorce. In court, matter will send for mediation. Quit possibility there, he may agree fro mutual. And to pressure him to agree for divorce, you can file FIR of physical and domestic violence.

Contested divorce takes time but you are entitle to claim maintenance even living under same roof. 

Yogendra Singh Rajawat
Advocate, Jaipur
17397 Answers
21 Consultations

4.6 on 5.0

You took too long to realise mental compatibilities with your husband. If you are not very insistent on divorce as it is definitely going to take lot of time to get the judgement I will rather advice you to meet a marriage counsellor and psychologist so that the difficulties in your life and depression may be treated.

Please think positively as at this stage any such decision may change your life completely.

 

GOOD LUCK!!

Vimlesh Prasad Mishra
Advocate, Lucknow
6299 Answers
20 Consultations

4.9 on 5.0

you can claim property and alimony, mutual divorce from filing takes six/seven months.detailed discussion is necessary

Aveek Bose
Advocate, Kolkata
1085 Answers
7 Consultations

4.7 on 5.0

You shall get maintenance and alimony if you arw unemployed. You may seek divorce on grounds of cruelty and abuse. It may take 2 years. You can live separately in the meanwhile.

Rahul Mishra
Advocate, Lucknow
6749 Answers
15 Consultations

5.0 on 5.0

See if he is not ready for a mutual divorce you need to file for the contested divorce before the family court.

Shubham Jhajharia
Advocate, Ahmedabad
23445 Answers
94 Consultations

5.0 on 5.0

You can file divorce petition and you can file a suit under the provisions of guardian and wards act for seeking custody of your children. That suit will be filed where children are residing. You have to prove that you are capable enough to take care of them.

Mohammed Mujeeb
Advocate, Hyderabad
14513 Answers
6 Consultations

4.5 on 5.0

You can file divorce petition and also  maintenance can be filed together there is no legal bar instead filing of maintenance case will help you in getting divorce so file maintenance petition under section 125 crpc along with divorce petition.

Mohammed Mujeeb
Advocate, Hyderabad
14513 Answers
6 Consultations

4.5 on 5.0

1. You shall have to show acceptable ground like cruelty, desertion etc., for filing the divorce suit against your husband.

 

2. If you file the said divorce suit, then he will be entitled to contest the same and after hearing both of you, the Court might pass decree of divorce or might dismiss your suit.

 

3. If you get the decree of divorce then you can also claim maintenance for yourself and your son.

 

4. You shall also have to file an application for the custody of your son wherein your son will be asked as to with whom he wants to stay and such custody will be decided considering the welfare of your son.

Krishna Kishore Ganguly
Advocate, Kolkata
23702 Answers
649 Consultations

5.0 on 5.0

1. The cause for seeking divorce as stated by you does not conform with the grounds accepted by Indian law for passing decree of divorce. The said cause is acceptable in western countries but not in India.

 

2. You shall have to show cause of cruelty for seeking decree divorce against your husband.

 

3. There is no benefit arises from divorce. If you get the decree of divorce from the Court, you can seek for maintenance for you and your son.

 

4. If your divorce suit is dismissed, you shall not get any maintenance and will be continued to be considered as the legally married wife of your husband in India though you can not be forced to stay with him against your wish.

Krishna Kishore Ganguly
Advocate, Kolkata
23702 Answers
649 Consultations

5.0 on 5.0

1. The dissolution of marriage unless is mutual needs to be established on the ground of cruelty or desertion.

2. Unless it is mutual consent divorce, the court can dissolve a marriage at the sweet will of a spouse.

3. So if you prove the allegations of cruelty then and then only you would get decree of divorce.

4. Wife has no share in the property of husband though she cna claim maintenance in the event she has none of her source of income. 

Devajyoti Barman
Advocate, Kolkata
18831 Answers
270 Consultations

5.0 on 5.0

If he is not agreeing for mutual consent divorce and if yo are not able to tolerate the situation and the cruelties anymore then you may file a contested divorce.

You can claim monthly maintenance amount from him for you and your child.

 

T Kalaiselvan
Advocate, Vellore
62966 Answers
814 Consultations

5.0 on 5.0

1. You will get maintenance per month for your child and yourself if you file maintenance case against your husband.

2. Grounds for divorce should be strong for getting divorce from your husband. Is he is not agree for mutual consent divorce then you have to file suit for divorce against your husband on ground of mental cruelty.

3. You will get custody of your son if he want to stay with you after divorce 

Mohit Kapoor
Advocate, Rohtak
7134 Answers
2 Consultations

5.0 on 5.0

1. Since he is not ready for mutual divorce you have to file it individually which he can contest.

2. It may take around 2 years.

Ashish Davessar
Advocate, Jaipur
27730 Answers
820 Consultations

5.0 on 5.0

You can file for divorce against your husband for cruelty.

You are entitled to maintenance, till you get remarried.

You may also ask for permanent alimony.

If you are employed / earning the maintenance amount may be reduced proportionately.

If your son wants to stay with you, no one can force him against his wish.

 

S Srinivasa Prasad
Advocate, Hyderabad
1392 Answers
6 Consultations

5.0 on 5.0

Dear Madam,

Divorce law is applicable equally to both husband and wife in India. Even there are more grounds for wife to get divorce as compared to the husband.

In India, the marriage laws are in favor of wife rather than husband. She is entitled to seek protection and various other orders from the court. The Protection of Women Against Domestic Violence 2005 was enacted purely for the women only

Irony is that the women are not aware of their legal rights and those who are aware cannot enforced those rights.

I would like to know what kind of benefits you are suggesting here.

Under Sec CrPC 125, a woman is entitled to get maintenance from her spouse irrespective of who files for divorce. However, if women is earning, then she may not get any maintenance cost from her spouse.

Rest she is entitled to get her Streedhan ( Materials/Jewellery given exclusive to Women in Marriages)

She is also entitled to get maintenance for her children irrespective of who files the divorce.

Netravathi Kalaskar
Advocate, Bangalore
4722 Answers
24 Consultations

4.8 on 5.0

You can get alimony for you as well as maintenance for your son. You can file domestic violence complaint and 125 crpc petition for maintenance in the above case

Prashant Nayak
Advocate, Mumbai
17446 Answers
30 Consultations

4.6 on 5.0

- Before taking Divorce decisions, you should know that legally , you have the following right and claims from your husband. 

1. As per law, A wife has the right to claim decent living standards and basic comforts of life from her husband. Hence for claiming the maintenance for yourself & minor son , you can file a petition under section 125 CrPc.

- Your husband is under legal obligation to provide the same at any cost, even he is working or not. 

2. Law entitles wives a basic right to reside in the matrimonial/ home, whether the house owned by her husband or his parents, a rented property or officially provided to him. 

- Hence, for claiming residential right, medical expenses etc, and also for teaching a lesson to him , who subjected torture & harassment, you can file a petition under the provisions of Domestic Violence Act.

3. As per the Supreme Court, A wife has complete ownership rights over all her Streedhan, the gifts and money given to her before and after marriage. The denial of Streedhan to the wife makes the husband and in-laws liable for criminal charges. 

- And further, if the husband or his family members subjected a woman to cruelty for the dowry demand, then they can be booked under Section 498-A.

- Hence , you can lodge a written complaint against him & his family members, in the Women cell/Mahila Police, after mentioning all the details of torture & harassment. 

- The women cell firstly will try to reconcile the matter , otherwise, they will lodge an FIR against all the person, who subjected you cruelty. 

- Further, if you don’t want to create problems for your husband, and proceed for divorce, then you can get divorce decree within a short period of time, after filing mutual divorce petition. 

- Since, he is not agree for a mutual divorce, then you can file divorce petition on the ground of curelty and harassment , and there you can claim the permanent custody of son as well. 

Mohammed Shahzad
Advocate, Delhi
1789 Answers
27 Consultations

5.0 on 5.0

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