• Divorce

I got married this Jan 2015 and my wife and me are not having husband and wife relationship, I wanted to apply for divorce. Although my wife has agreed for divorce she will mention that its not her fault and she is giving divorce since i need it.
if this is the case - can i go ahead and apply for divorce.
can i apply for divorce before a year or should i wait for time,
Do i need to give any compensation since we just married and we did not have any relationship
if she states as above in front of judge will they approve for divorce
Please note - I tried to save this marriage, spoke to my wife parents but they are also not sure whats the problem. I definitely know she does not like me and she only wants to live with me because of her parents which i dont want.
Please let me know what i can do to get divorce which is good for my life and her life too.
Asked 1 year ago in Family Law from United States
Religion: Hindu
Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. Divorce is not favored or encouraged, and is permitted only for grave reasons. Don't take any hasty steps immediately, even if you don't want to continue the present relation. 

Sec-14 of Hindu Marriage Act restricts any court to entertain any petition of dissolution of marriage before completion of one year, unless an extraordinary situation arose. Secondly you can't get married before getting divorce, if you do, then you will be considered as guilty. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1) you can file for divorce after expiry of one year of marriage 

2) you can file for divorce by mutual consent 

3) consent terms in mutual consent divorce petition would contain a clause regarding payment of alimony to wife 

4) if your wife is willing to divorce you without any alimony it can be so 
mentioned in the consent terms 

5) if your wife is not willing for mutual consent divorce you can file for contested divorce after expiry of one year from date of marriage on grounds of mental cruelty 

6 ) Refusal to have sex amounts to mental cruelty 

7) contested divorce cases take around 5 years to be disposed of in India 
Ajay Sethi
Advocate, Mumbai
23354 Answers
1222 Consultations
5.0 on 5.0
1. Before expiry of January, 2016 you can not apply for divorce.
2. Since your wife is also willing then file mutual divorce suit wherein no allegations need to be stated.
3. In mutual divorce case court passes no order on rights of the parties except on those parties agree. So both of you may agree on quantum of maintenance.
4. Go for mutual divorce.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
What do you mean by saying my wife and me are not having husband and wife relationship?
You mean to say that there was  no conjugal relationship between you and her since beginning and the marriage has not been consummated so far?
If she  is not willing to  consummate the marriage for the  reasons known to her,the marriage can be annulled by a decree of nullity provided she  is not objecting to it as a respondent.
If you're thinking of getting the marriage dissolved by a decree of divorce,you can apply for divorce on mutual consent grounds, for which you have to wait  for at least one year from the date of separation.
You may wait for completion of one  year period after marriage and then apply for divorce on the grounds of mutual consent which will be more comfortable and easier.
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
1. I also could not find the actual problem between both of you which is leading you to take the drastic step,

2. Try to solve the problem with your wife if it is possible,

3. if it is not possible, negotiate with her and file a mutual consent divorce petition after one year of her getting separated from you,

4. Not only completion of one year of marriage, both of you are required to stay separated for at least one year to be enable to file the MCD petition,

5. in the said MCD petition she both will set terms for the divorce i.e. any claim of money or no claim of any thing from either side,

6. In the circumstances narrated by you MCD is the best option for both of you which will be disposed of within 6 and 1/2 months from the date of its filing.

Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
Hi, you can't apply for divorce with in year of marriage as law will not allow you to apply divorce with in one year of your marrage.

2. As far as maintenance is concerned it is the duty of the husband to maintain his wife and children so you have to pay maintenance to your wife provided if she voluntarily submit before the court that  she don't want maintenance.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
No possibility for divorce within one year from the date of marriage but you can apply for annulment of your marriage for non consummation of the same  owing to her unwillingness or impotency. If she agrees to your proposal, ask her to receive the summons and prefer not to attend the court to allow the court to decide he  case exparte in yr favor.  This is how you can manage the situation. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
1) file for divorce on expiry of one year of one marriage 

2) in the alternative file for annulment of marriage on grounds of impotency of your wife 

3) if your wife does not contest you would get annulment order within period of one year 
Ajay Sethi
Advocate, Mumbai
23354 Answers
1222 Consultations
5.0 on 5.0
Section 12(1)(a) of the Hindu Marriage Act, 1955.  Said section reads
as under :­
“12. Voidable marriages. – (1) Any marriage solemnized,
whether before or after the commencement of this Act, shall be
voidable and may be annulled by a decree of nullity on any of the
following grounds, namely:-
(a) that the marriage has not been consummated owing to the
impotence of the respondent; or
(b) …...
(c) …...
(d) …...”


2) In the case of V. v. S. (supra), the Division Bench of this
Court has observed on the aspect of impotency and sterility by quoting
the passage from Modi’s Textbook on Medical Jurisprudence and
Toxicology, Twenty-first Edition. The said observations are as under :
"Impotence is defined as physical incapacity of
accomplishing the sexual act, while sterility means inability
for procreation of children. Impotence in males is the
persistent inability to develop or maintain a penile creation
sufficient to conclude coitus to orgasm and ejaculation. It
should be remembered that the term impotence or sexual
incapacity in forensic medicine connotes physical incapacity
to accomplish the sex act.
Impotence has been described in Halsbury's Laws of England
to be such a state of mental or physical condition which
makes consummation of the marriage a practical
impossibility.
An impotent individual need not necessarily be sterile, nor a
sterile individual impotent, though both conditions may
sometimes be combined in the same individual."

3) While dealing with cases of impotency the predominant
consideration   is   not   physical   incapacity   which   courts   are
often guided by, but another all important angle, namely, the
fact that non consummation of marriage, could be due to
several   circumstances   which   contribute   to   a   situation
whereby both the spouses, though physically and mentally
potent in the normal sense, find it impossible to achieve a
satisfactory   sexual   relationship.     The   concept   of   relative
impotency which prescribes that a person suffering from no
handicap whatever still feels inhibited or incompetent vis­avis
the particular sexual partner is now an accepted ground
for a decree in a matrimonial Court.”
Ajay Sethi
Advocate, Mumbai
23354 Answers
1222 Consultations
5.0 on 5.0
Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. A marriage by definition is a sanction by society for a man and a woman to live together and to engage in physical relationship .If your marriage is not consummated till now it would be a good ground for divorce. 

Wait completion of one year.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. In short you two did not gel at all in our marriage,

2. You shall have to wait for one year of completion of marriage to file the MCD,

3. While filing the MCD, do mention therein that both of you are staying separately for one year.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
1. Both of you can file for mutual divorce in the given circumstances, but this can be done only after a year from the date of marriage.

2. If she does not agree to mutual divorce then you may file for divorce on the ground that marriage has not been consummated by her. This too can be done only after  marriage.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
Since you are staying separately for five months just wait for another seven months so that one year has passed and then file for Mutual Consent Divorce under section 13 B of Hindu Marriage Act 1955 and if she doesn't claim anything from you then it would be best for you. 

Another option is you file for nullity under section 12 (1) (a) of Hindu Marriage Act 1955 that the marriage has not been consummated. In that case you will avoid the tag of being divorced. 

Regds, 

Adv. Payal
Payal Arora
Advocate, Pune
333 Answers
7 Consultations
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