• Clarification required

Dear Sir/ Madam
I am married since 2017- I am a single and I don’t have my father. My wife is not letting me to take care of my mother - She is not letting me even to make a phone call and discuss about her wellness- Even my mother is not even staying with us from day 1 of our marriage- Most awkward part is that she suspect that me and my mother are in kind of wrong relationship - she keep saying the for past 1.5yr - I spoke to my wife side several time but I don’t feel any change in her - owing to this entire parts of my life is being disturbed - I am moving very bad day by day and I am loosing myself by hearing all these- I am planning to apply divorce - will there any law that support these issue and to grant me dissolution from my marriage
Asked 5 months ago in Family Law
Religion: Hindu

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23 Answers

1. You may file divorce on ground of cruelty against your wife, that your wife is harassing putting false allegations and keeping you away and not allowing to take care of your mother.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
111 Consultations

5.0 on 5.0

Sure.  Blaming you unnecessarily for immoral activities is mental cruelty and based on this ground you can obtain divorce. 

If your wife makes such imputation public you can sue him for defamation also. Both under civil and criminal. 

Kallol Majumdar
Advocate, Kolkata
2690 Answers
4 Consultations

5.0 on 5.0

Yes you can file contested divorce on grounds of cruelty. Not taking care of your mother and stoping you from not taking care is cruelty

Prashant Nayak
Advocate, Mumbai
22447 Answers
49 Consultations

4.4 on 5.0

1) file for divorce on grounds of mental cruelty 

 

2) wife forcing husband to stay separate from parents amounts to mental cruelty 

3) wife accusing  husband of having affair with mother amounts to mental cruelty and is ground for divorce 

Ajay Sethi
Advocate, Mumbai
79344 Answers
4746 Consultations

5.0 on 5.0

In your case cruelty in the form of heaping profane abuse on a pious relationship between mother and a son is certainly a ground to dissolve the marriage. 

Regards 

G.Rajaganapathy 

High Court of Madras 

Rajaganapathy Ganesan
Advocate, Chennai
1804 Answers
8 Consultations

4.9 on 5.0

1. You are free to apply for dissolution of marriage on the ground of cruelty. For a wife to wrongly allege that her husband is in an illicit relationship with his mother is highest form of mental cruelty.

2. Be prepared to face 498A and DV Act cases by her in retaliation.

Ashish Davessar
Advocate, Jaipur
29956 Answers
864 Consultations

5.0 on 5.0

Dear Sir,

It is the highest ever considered ground to allow your divorce application. Such crocked people not entitled to be adored the status of mother also. Motherhood is such great status but she is not understanding. Your decision is very reasonable.. You may chose any of the following modes of divorce.

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Divorce Laws in India

Divorce is the legal dissolution of marriage. A divorce is among the most traumatic misfortunes for any couple. The entire process of divorce that starts from coping up with emotional ups and downs to contesting for the long awaited divorce decree for several months is definitely a tough affair to get through. Before opting for a divorce one should be aware of the fact that a divorce procedure in India extents for almost a year and in some special cases of disputes the procedure may continue for years.

Since India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce. All Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955. The Muslim, Christian and Parsi communities, on the other hand, have their own laws governing marriage and divorce. Spouses belonging to different communities and castes can seek divorce under the Special Marriage Act, 1956. There is also the Foreign Marriage Act 1969, governing divorce laws in marriages where either partner belongs to another nationality.

With the advancement of time and social awareness, several acts have been passed by the government to make the present day divorce procedure in India more progressive with respect to gender affairs and related sensitive issues.

Divorce laws in India are broadly categorized into ‘Divorce by Mutual Consent’, ‘Contested Divorce’, ‘Void Marriages’, here is a detailed overview about each of them.

  1. DIVORCE WITH MUTUAL CONSENT

Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court. Mutual consent means that both the parties agree for peaceful separation. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolve 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.

Certain common questions about divorce with mutual consent have been answered below:

When can the divorce by mutual consent be filed?

The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.

They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife.

Where to file the divorce petition?

In the family court of the city / district where both the partners lived together for the last time, which was their matrimonial home.

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 Rs25, 000 to Rs75, 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.

  1. CONTESTED DIVORCE

In case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a reason. The reasons for divorce are as follows, though some are not applicable to all religions.

Cruelty

Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.

Adultery

In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.

Desertion

One spouse deserting the other without reasonable cause (cruelty, for example) is reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.

Conversion

Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before divorce can be filed.

Mental Disorder

If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.

Communicable Disease

If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.

Renunciation of the World

if the spouse renounces his/her married life and opts for sanyasa, the aggrieved spouse may obtain a divorce.

Presumption of Death

If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.

A few common questions about divorce without mutual consent have been answered:

What are the various steps involved in seeking a contested divorce?

With a contested divorce, spouses will have to go through numerous steps before the divorce is finalized, including:

  • prepare, file and serve (deliver) the divorce petition (legal paperwork asking for the divorce and stating the grounds for the breakdown of the marriage)
  • respond to the petition
  • interview and hire an attorney
  • engage in “divorce discovery” – the information gathering process, which involves various legal procedures to get information from your spouse and third-party witnesses (e.g., written questions, subpoenas, and depositions)
  • pre-trial legal motions and hearings
  • settlement proposals and negotiations between attorneys
  • if settlement fails, prepare for trial
  • complete a court trial
  • Appeal, if you dispute the trial judge’s decision(s).

During the settlement phase, spouses are often unable to resolve issues. Although the divorce judge may encourage spouses to work things out, when that doesn’t happen the next step is divorce court.

During trial, both spouses present witnesses, and their lawyers cross-examine the witnesses and present closing arguments. After trial is over, the court will issue a final order memorializing all of the judge’s decisions, and finalize the divorce.

What are the various documents required to file petition for a contested divorce?

  1. Address proof of husband
    2. Address proof of wife
    3. Marriage certificate
    4. Four passport size photographs of marriage of husband and wife
    5. Evidence proving spouses are living separately since more than a year
    6. Evidence relating to the failed attempts of reconciliation
    7. Income tax statements for the last 2-3 years
    8. Details of profession and present remuneration
    9. Information relating to family background
    10. Details of properties and other assets owned by the petitioner

What is the cost involved in getting a contested divorce?

Lawyers tend to charge fees for appearing in court and doing any other work. Depending on how intensely it is fought, therefore, a divorce may cost anywhere from the low ten thousands to lakhs of rupees.

What are different constraints regarding the alimony?

The right of maintenance extends to any person economically dependent on the marriage. This will include, therefore, either spouse, dependent children or even indigent parents.

The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the husband having sufficient means. When deciding how much alimony is to be paid, the courts will take into account the earning potential of the husband, his ability to regenerate his fortune (in case, say, the property is given to the wife) and his liabilities. In case either spouse is unable to pay for the divorce, these expenses would also be paid by the spouse that does have an income.

Various constraints determining the alimony are:

  • The age of the person entitled to receive the alimony.
  • The earnings and current financial status of the spouse entitled to pay the alimony.
  • The failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favor of him or her. They can claim a larger alimony on the basis of their failing health.
  • The spouse that retains custody of the child would be entitled to either pay lesser alimony or be entitled to a greater amount while the child is a minor.

What are the provisions relating to child custody?

Courts usually agree to the decision of the parents in a mutual consent divorce, the courts are expected to see to the best interest of the child. In a contested divorce, the courts will examine the ability of the mother or father to be a parent to the child, for example. Money is not usually a matter that is considered. Non-working mothers are regularly given custody of their children, but fathers are expected to provide financial support.

  1. VOID MARRIAGES

Following are the grounds which shall render a marriage void or the court shall deem it to be illegal are:

Bigamy

None of the parties to the marriage shall have a spouse living in the time of their marriage. If either of them has a spouse alive from an earlier marriage, their subsequent marriage is no marriage in the eyes of law. It is void ab initio and non-existent.

Persons falling within degrees of prohibited relationships

Lineal ascendants are to be seen from both sides, i.e. from the father’s side as well as from the mother’s side. So both the father and mother are lineal ascendants fall in degrees of prohibited relationships.

Sapinda relations

Sapinda relations can be illustrated as under:
Suppose A is a boy. Now if he is considered as one generation, relatives falling in four more generations upwards from him from the side of his father shall be his Sapinda relations. Therefore, A’s father, A’s grand-father, A’s great grand-father and the father of A’s great grand-father shall all be A’s Sapinda relations. But on the mother’s side, this chain is to extend to only three generations which include A. Therefore, A’s mother and A’s maternal grand-mother only shall be A’s Sapinda relations from the mother’ side, A himself being one generation. Marriages made up of such relationships are void.

A few common questions about void marriages have been answered below:

What are the provisions relating to maintenance of the wife?

Another significant question that now arises is whether the wife whose marriage is void under section 11 of the Act can claim maintenance from her husband of that void marriage. The Supreme Court has held that where a marriage is void, wife cannot claim maintenance under sec. 488 .However it is a generally accepted rule that even in such cases, the wife is entitled to maintenance under sec. 18 of the Hindu Adoptions and Maintenance Act and also under section 24 of the Hindu Marriage Act.

Are the children born from void marriages legitimate?

Hindu Marriage Act 1955 confers legitimacy upon the children born out of void marriages. It provides as under:
Hence the clear effect of section 16 is that if a child is born out of a wedlock which is subsequently declared to be null and void, that child will not be considered illegitimate but he shall be considered legitimate despite the marriage being illegal from its inception. The section provides a cushion to the children of void marriages and prevents them from being penalized.

 

Kishan Dutt Kalaskar
Advocate, Bangalore
5589 Answers
219 Consultations

4.8 on 5.0

- 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.

- Hence, as per law, she cannot deny living with you, under the condition of separate living from the family.

- Further, 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.

- Further , your wife's acts are against the law & society , and it amounts to cruelty.

The easiest & shortest way to get decree of divorce from the court is Mutual divorce, i.e you should take the consent of your wife to file a mutual divorce petition. 

- If, she refused the same , then file a divorce case against her on the grounds as i mentioned above.

- Further, you should also lodged you complaint before the police and higher official, as an information, after mentioning the details and also for threatening to implicate you in false dowry cases.

Mohammed Shahzad
Advocate, Delhi
5538 Answers
51 Consultations

5.0 on 5.0

The acts of your wife clearly fall under the purview of verbal cruelty. Therefore, you can file divorce petition on the ground of cruelty. But it is so difficult to prove the verbal cruelty. To prove the same in court, you should be ready with the witnesses to the prove the allegation of cruelty. 

Selva Perumal
Advocate, Chennai
314 Answers
36 Consultations

4.9 on 5.0

Yes this amounts to mental cruelty and you may be granted divorce on the basis of mental cruelty 

Rahul Jatain
Advocate, Rohtak
5364 Answers
4 Consultations

4.8 on 5.0

Yes, on mental torture, harassment and cruelty base you can apply for divorce. 

Ganesh Kadam
Advocate, Pune
11668 Answers
109 Consultations

4.9 on 5.0

Forcing a husband to separate from the /parents family is an act of “cruelty” and a ground for divorce. Hindu Son can Divorce his Wife if she tries to separate him from his Aged Parents.

Record some proof where she is not allowing you to bring mother and same will use in evidence.

Yogendra Singh Rajawat
Advocate, Jaipur
21402 Answers
31 Consultations

4.4 on 5.0

Yes, you can go Divorce on the ground of Mental Cruelty.

The acts / actions / comments by your wife and also not allowing you to look after welfare of your aged Mother amounts  to cruelty.

Before going ahead, you record her adverse comments / allegations, which will be  used as evidence going forward.

Further, wife suspecting "Wrong Relationship" between son & mother amounts to mental cruelty (in human).

All the acts / comments / demands of your wife amounts to mental cruelty, as such, you can file for divorce on the said ground.

S Srinivasa Prasad
Advocate, Hyderabad
2862 Answers
9 Consultations

5.0 on 5.0

you have to prove the mental cruelty to succeed.

Rajinder Goyal
Advocate, Chandigarh
111 Answers
1 Consultation

5.0 on 5.0

1. From the conduct done by your wife it's apparent that she is suffering from psychological disorder and its better to part ways from him. 

2. The acts perpetrated by her are all acts of cruelty which if proved can entitle you to grant of divorce if you file a suit for dissolution of marriage. 

3. So better start with staying with your mother and file a suit for divorce. 

Devajyoti Barman
Advocate, Kolkata
21685 Answers
311 Consultations

5.0 on 5.0

This is a cruelty that she is doing to you.

You can very well file a contested divorce case for  her on such acts of cruelty unleashed against you.

 

T Kalaiselvan
Advocate, Vellore
69355 Answers
929 Consultations

5.0 on 5.0

First and foremost get a complaint registered against your wife on behalf of your mother of Domestic violence .

Secondly try and shift your wife from your residence to a rented one.

Thirdly right after that you can go for divorce on basis of mental cruelty. 

Mohammed Mujeeb
Advocate, Hyderabad
18942 Answers
11 Consultations

4.5 on 5.0

Ask your mother to file case of Domestic Violence against you and your wife before Court of Law to claim relief of residence order and maintenance. 

Ramesh Pandey
Advocate, Mumbai
2538 Answers
8 Consultations

5.0 on 5.0

1. Yes it is a clear case of mental cruelty against you by your wife.

2. You can get divorce on this ground makw sure to collect some evidence regarding these acts by your wife.

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

File for divorce on grounds of mental cruelty 

 

2) wife forcing husband to stay separate from parents amounts to mental cruelty and is ground for divorce 

 

3) wife abusing husband,  threatening to file false case against husband and mother in law amounts to mental cruelty 

Ajay Sethi
Advocate, Mumbai
79344 Answers
4746 Consultations

5.0 on 5.0

If you don't want divorce counter the divorce application with RCR petition. If you want divorce toh can also file contested divorce if not filed by them

Prashant Nayak
Advocate, Mumbai
22447 Answers
49 Consultations

4.4 on 5.0

If she lodges criminal complaint or DV case against you and your mother,  since you know that they are foisted cases on false allegations,  you can challenge them properly in the trial proceedings on merits and documentary evidences if any on your side. 

The situation is intolerable hence you may give a second thought about continuing with this married life. 

The more you want to save the marriage,  the more she may torture you hence you may consult a local advocate and discuss the problems of continuing this married life at length and take a proper decision at right time. 

T Kalaiselvan
Advocate, Vellore
69355 Answers
929 Consultations

5.0 on 5.0

you may file a petition for divorce in family court. It is one kind of mental cruelty. 

 

Mohammed Mujeeb
Advocate, Hyderabad
18942 Answers
11 Consultations

4.5 on 5.0

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