• How to get divorce if the wife is not willing for mutual divorce

I want divorce from my wife. She has a habit of fighting over silly issues and from the past two years after the birth of our son she refusrs to keep any kind of physical relationship with me and we sleep in different rooms...she is not ready to meet a marriage counselor for soughting out issues...i am fed up and i   want a divorce..she is not ready for mutual divorce and she wants the custody of our son too..so how should i proceed and how can i get the custody of my son..she has always neglected him from the time of his birth..please help me
Asked 1 year ago in Family Law from Pune, Maharashtra
Religion: Hindu
1) since your child is only 2 years old court would award your wife child custody . 

2) you can seek joint custody of the child 

3) even if you dont get custody court will award you visitation rights . 

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

5) refusal to have sex amounts to mental cruelty 
Ajay Sethi
Advocate, Mumbai
23087 Answers
1212 Consultations
5.0 on 5.0
Divorce is not favored or encouraged, and is permitted only for grave reasons. 
Under the Hindu Marriage Act, 1955 both the husband and the wife have been given aright to get their marriage dissolved by a decree of divorce on more than one grounds specifically enumerated in Section 13.Denying sex to husband /wife without any specific reason is cruelty and ground for divorce. 
From your words some of the grounds are lime lighted for the essential grounds for getting a divorce.
1.	Adultery – as alleged 
2.	Impotency – as alleged
3.	Harassments from the in-laws
4.	Co-habitation not done repeated demands 
Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore, each case has to be decided on the basis of its own set of facts. Mental cruelty can consist of unusually callous, neglectful and deliberately harass conduct, false accusation of adultery or unchastity, false charge of impotency, undue familiarity with third person, deprivation of property, drunkenness, false criminal charge by one spouse against the other, reprehensible conduct, refusal to have marital intercourse, refusal to consummate marriage, communication of disease, demand for dowry etc.Denial of sex is also considered as cruelty.

Guardian and wards card are empowered to determine the issue of child custody. Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. The basic opinion of the child and the mother is highly ignored while determining the custody of the child.  Family law courts generally base decisions on the best interests of the child or children (welfare of children), not always on the best arguments of each parent.
1.	Permanent Custody
2.	Interim Custody
3.	Visitation Right
So file petition for divorce under the ground cruelty and petition for custody of child.
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
1. If mutual divorce is not accepted by one spouse then filing of contested divorce suit is only option.
2. Such suit however does take time.
3. If the child remain with you while filing divorce suit then there is no need of filing custody suit.
4. Try to resolve amicably at least for the sake of the child. Differences may be sorted put if you sit together and talk to her intensely.
Devajyoti Barman
Advocate, Kolkata
5136 Answers
54 Consultations
4.9 on 5.0
1. Collect all the evidence of her cruelty for some time,

2. After that file a divorce suit on the ground of cruelty,

3. Child will remain in the custody of the mother upto 5 years of his/her age.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
Hi, you can file a petition for divorce on the ground of cruelty as refusing to have sex is also  amount to cruelty so you can file a petition for divorce on the ground of cruelty.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
 you can file a divorce petition under the grounds of mental cruelty before the family court and get divorce and with regard to the child custody it is somewhat difficult to get the minor child under your custody from his mother.
Thangam Raghavan
Advocate, Chennai
4 Answers
0 Consultations
Not rated
The Division Bench of Delhi High  Court in the celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973 Delhi 200 held as under:

"In these days it would be unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favorable influence on a woman's mind and body, the result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman's brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse."
Ajay Sethi
Advocate, Mumbai
23087 Answers
1212 Consultations
5.0 on 5.0
In the authoritative pronouncement of the Hon'ble Supreme Court in Samar Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon'ble Supreme Court took into account the parameters of cruelty as a ground for divorce in various countries and then laid down illustrations, though not exhaustive, which would amount to cruelty. It would be relevant to refer to the following para 101 (xii) wherein it was held as under:-

"(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty
Ajay Sethi
Advocate, Mumbai
23087 Answers
1212 Consultations
5.0 on 5.0
File a divorce case based on cruelty and non-cohabitation before the Family Court under section 13(1)(Ia) of Hindu Marriage Act-1955.

also file a child custody case under section 25 of Guardian & Wards Act-1890 along with an interim application for interim custody under section 12 of GWA.

Feel Free to call
Nadeem Qureshi
Advocate, New Delhi
3513 Answers
129 Consultations
4.9 on 5.0
If she is not agreeing for mutual divorce then you will have to go for contested divorce which means you will have to file petition for divorce in the family court and she will contest the same.

Since the child is been taken care by you since birth and if he is matured enough to take a decision then his decision will be given a paramount consideration by the court. Or else you will have to prove the court that she has been neglecting the son since birth. Whatever evidences you have against the wife you will have to produce in the court. 


Regds, 

Adv. Payal 

Payal Arora
Advocate, Pune
331 Answers
7 Consultations
4.1 on 5.0
If you have decided to divorce her then you may consult an advocate in e local and pass instructions to file a divorce petition on the grounds of cruelty, on cohabitation for a period of two years or more.
For child custody, you may file a petition under G W Act, 1890 and in it you may also file an application seeking visitation rights as an interim relief. 
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
1. This leaves you with only recourse i.e to file for divorce on the ground of cruelty as denial of sex amounts to cruelty. You can also file a case for child custody if you wish to retain the custody of your son. Child welfare will be the paramount consideration for the court.

2. Needless to add, she will be given an opportunity to contest both the cases in defence.
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0

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