• Divorce related

Hello Sir/Madam,

My wife aged 46 years old want to give divorce. Married was done in Jan 2006 and happend in Chandigarh. I have 19+ years old son and 14+ years old daughter. She is always dominating. She beats my kid. She beats me. She used to beat my kids.
My questions are:
1) I don't want to give divorce can anyone force me ?
2) Will be my children be separated from me ?
3) Will she be able to take my daughter against her will ? Which section prohibits it.

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Asked 2 months ago in Family Law
Religion: Hindu

3 answers received in 30 minutes.

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13 Answers

  1. Unfortunately, if she files for a contested divorce, you will have to defend it and if you lose, the Court will pass a decree of divorce in her favour.
  2. I assume, currently, you all are living altogether with. If she takes the daughter along with her, you will have to file a petition for guardianship of your daughter to reclaim her custody. 
  3. In case of minors, the will of the minor child is immaterial as far as her wellfare is concerned, however, the court may take into consideration the willingness of your daughter, if she is able to make intelligent decisions. The provisions of Guardianship and Wards Act will protect your right to have your daughter back, if your wife takes her away from you and your daughter may be returned to you, if she testifies before the Hon'ble Court that she wants to reside with you, subject to, you have to show it to the Court that her welfare is better with you than your wife. 

Puneet Srivastava
Advocate, New Delhi
95 Answers

In case wife files for divorce contest divorce proceedings 

 

2) file petition for RCR under section 9 of HMA 

 

3) your son is 19 years old and can decide whether he wants to stay with you of with your wife 

 

3) court would consider your daughter wishes before deciding custody issue 

 

4) you can file petition for joint custody of your daughter .seek interim visitation rights 

Ajay Sethi
Advocate, Mumbai
100549 Answers
8221 Consultations

I would advise you to file a case for judicial separation, if you don't want the stigma of divorce on your collar and save the children from the stigma of their parents being divorced. Once you file that, you may file an application for restraining order against your wife in the same petition for her to stay away from your daughter and you.

Puneet Srivastava
Advocate, New Delhi
95 Answers

Dear Sir/Madam,

No, you cannot be forced to give a mutual divorce; only the Family Court can grant divorce if your wife proves legal grounds under Section 13 of the Hindu Marriage Act.
Your 19+ son is a major, so no custody order applies to him. For your 14+ daughter, the court will see her welfare and can consider her own preference; your wife cannot simply take her away by force.
The relevant provisions are Section 26 of the Hindu Marriage Act and Section 17(3) of the Guardians and Wards Act.

Saurabh Agrawal
Advocate, Greater Noida
102 Answers

1. If you do not want to give divorce you can challenge her grounds and refuse to accept her demand for divorce.

2. Divorce is between husband and wife only, the children cannot be separate from either of the parents due to the divorce proceedings.

3. If you forces your daughter, you can file a petition for custody and seek for no interference in taking care and upbringing of your daughter under the provisions of guardians and wards act.

T Kalaiselvan
Advocate, Vellore
90753 Answers
2523 Consultations

You can start living separately with your daughter away from your wife and file a child custody against your wife on the grounds of what all you experienced and that had aggrieved you.

Since your daughter is above 14 years, the court will ask its opinion and take a decision accordingly in the interest of the child

T Kalaiselvan
Advocate, Vellore
90753 Answers
2523 Consultations

If you are not ready for divorce she can file contested divorce against you. If you want custody of children you can file custody petition in family court. 

Prashant Nayak
Advocate, Mumbai
35077 Answers
256 Consultations

Firstly, you cannot be forced to give divorce merely because your wife wants it. Under the Hindu Marriage Act, 1955, divorce can happen either by mutual consent or by a contested petition. If you do not agree, she will have to file a contested divorce and prove legal grounds such as cruelty, desertion, etc. The court will decide based on evidence—your consent alone is not enough to grant divorce.

Secondly, regarding your children, custody is not automatically given to the mother. Courts decide custody based on the welfare of the child, which is the paramount consideration. Since your son is above 18, he is legally an adult and no custody issue arises for him.

As far as your daughter is concerned, the court will consider:
her age (14+),
her preference,
her welfare and safety, and
the conduct of both parents.

If your daughter is not comfortable with her mother and there are instances of physical abuse, this becomes a very important factor in your favour. Courts generally give significant weight to the child’s wishes at this age.

Your wife cannot forcibly take your daughter against her will. If she attempts to do so, you can immediately approach the court seeking custody or protection orders under the Guardians and Wards Act, 1890, and also seek restraining orders.

Further, physical abuse by your wife towards you and the children amounts to cruelty, which can also be a ground for you to take legal action. You may also consider filing:
a complaint for domestic violence, or
seeking custody orders proactively to protect your daughter.

In conclusion, you are not bound to consent to divorce, your children will not be automatically separated from you, and your daughter’s welfare and preference will be crucial. Given the allegations of abuse, it is advisable to document incidents and consider initiating appropriate legal proceedings to safeguard your and your children’s interests.

Yuganshu Sharma
Advocate, Delhi
1409 Answers
5 Consultations

1) Can anyone force you to give divorce?
No, you cannot be forced to give divorce against your will. In India, divorce is granted only on specific grounds under Section 13 of the Hindu Marriage Act, 1955, such as cruelty or adultery. If your wife files a contested divorce petition, you have the right to defend it. The court cannot dissolve the marriage unless she proves her allegations. However, if she establishes "cruelty" (including your alleged refusal to talk or your children's behavior), the court may grant her divorce. But without mutual consent, no one can compel you to agree.

2) Will your children be separated from you?
Your 19+ year old son is a major and can choose his own residence. For your 14+ year old daughter, the court's paramount consideration is her "welfare". Since she refuses to talk to her mother due to past beatings, and you are the father (natural guardian under Section 6 of Hindu Minority and Guardianship Act, 1956), the court is unlikely to separate her from you unless you are found unfit. Your daughter's preference (given her age) will be considered. Physical violence by mother against child strengthens your custody claim.

3) Can she take your daughter against her will? Which section prohibits it?
No, she cannot forcibly take your 14+ year old daughter. Under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the father is the natural guardian of an unmarried minor girl. The Protection of Women from Domestic Violence Act, 2005 (Section 21) allows temporary custody to mother, but only if it is in child's welfare. Forcibly taking the child could constitute "kidnapping" under Indian Penal Code Section 361 (taking minor from lawful guardian without consent). The daughter's explicit refusal and her age (14+ years) will be given great weight by court.

Lalit Saxena
Advocate, Sonbhadra
293 Answers

then file for divorce 

 

no sense in staying with her if she abuses you and children 

 

 

Ajay Sethi
Advocate, Mumbai
100549 Answers
8221 Consultations

1. If she files a divorce suit against you, she shall have to show ground for it like cruelty etc. and prove it. You shall have to contest the case fittingly and it will take years to come to finality.

 

2. Your son has attained adult hood for which he will not require any of yours legal custody. Your daughter's custody will be determined by the Court based on her welfare and largely based on her selection of the person with whom she will like to stay. 

 

3. No. Your daughter's custody will largely decided  based on her choice.

 

 

Krishna Kishore Ganguly
Advocate, Kolkata
27740 Answers
726 Consultations

1. Keep all records of her cruel acts like her beating you and your daughter preferably by audio/video recording the incidences to enable you to contest her future divorce suit filed on the ground of cruelty, if any.

 

2. This will enable you to also prove that she only acts cruelly against you and your daughter for which your daughter's custody with her will not be for her welfare and she wants top stay with you. 

Krishna Kishore Ganguly
Advocate, Kolkata
27740 Answers
726 Consultations

Dear Client, 

Under the Hindu Laws, your wife cannot force you to agree to a mutual divorce. A divorce can happen either by mutual consent under Section 13B of the Hindu Marriage Act or by a contested divorce under Section 13. You may refuse consent to a mutual divorce but that does not stop her from filing and trying to prove a contested case. No one can compel you to sign a mutual consent divorce. A court can still grant divorce if the statutory grounds are proved in a contested case. If you do not want divorce, you should contest the petition and if appropriate, ask for settlement in Family Court. 

Your children are not automatically separated from you because of the divorce. Under the HMA, the court may pass orders about custody, maintenance, and education of minor children and those order must be made as the court deems fit. For a Hindu minor, Section 6 of the Hindu Minority and Guardianship Act states that natural guardian of an unmarried girl is the father and after him the mother. The act, however, also states that the guardian’s powers are subject to the minor’s welfare. In custody disputes, the controlling principle is always the child’s welfare and not the preference of the parents. For your 14 year old daughter, the court can appoint a guardian only if it is for the welfare of the minor and the court can make interim protective orders. Custody is ultimately for the court to decide on welfare grounds. I hope this helps. If you have any further queries, please feel free to contact us. 

Thank You. 

Anik Miu
Advocate, Bangalore
11319 Answers
126 Consultations

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