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I was married last year and have been separated for nine months now. I want to file for mutual consent divorce in Mumbai but have been told that one year of separation is compulsory. Can someone please confirm?

My husband is gay and this is the reason for divorce.   If not mutual consent what are other grounds that I can use? Can my husband and his family be booked for fraud? Please advise.
Asked 10 months ago in Family Law from Mumbai, Maharashtra
Religion: Hindu
1) you can file for divorce after expiry of one year of marriage . only in exceptional circumstances can you file for divorce before expiry of one year 

2) for mutual consent divorce it is necessary that the parties should stay separately for one year 

3) you can file for annulment of marriage on grounds of fraud . if your husband is gay and has married you fraudulently then you can file for annulment within period of 1 year from date of marriage 
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
Hi, with in completion of one year of marriage you can't file a petition for divorce.

2. So you have to wait for 1 year of marriage and thereafter only you  can file a petition for divorce.

3. If you don't want to live with your husband then it is better both of you go for mutual consent divorce.

4. If your husband is not ready for mutual consent divorce then you can file a petition for divorce on the ground of cruelty.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
Hello,
1) Yes, if you are a Hindu by religion and have been married as Hindus an years separation is required for filing for divorce by mutual consent divorce. However if your marriage is one year old you can state that you have been staying away since marriage in your petition. In a petition by mutual consent divorce you can obtain divorce in 6 months of your filing for it.

2) Apart from a mutual consent petition you can file for divorce on grounds of cruelty as he got you into this marriage knowing well that that his sexual orientation was not qualifying him for a marriage and would ruin your life as a married woman. A decision in a contested petition would however take longer time in the court.

3) You may prosecute your husband and family provided you are able to prove that all of them were aware of the facts and had planned the marriage with prior knowledge.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
if RCR is passed and parties have been living separately for more than 1 year it is ground of divorce. without passing RCR 2 years desertion is necessary.

if you can prove beyond doubt that your husband is gay you can get divorce before expiry of one year because his sexual orientation creates dangerous ambience for wife. Court accepts petition on exceptional conditions and your case comes under it.  
Shivendra Pratap Singh
Advocate, Lucknow
2792 Answers
41 Consultations
4.9 on 5.0
1. If you have completed one year of marriage, you can file MCD by stating that one week after your marriage you have separated yourself and Court will not enquire in to the said matter,

2. You can also file a petition for annulment of marriage if he is found to be impotent for you,

3. You can file a cheating case against your husband for concealing his s*xual preference before marriage from you.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1) don't make any false statement on oath 

2) issue legal
Notice as advised by your lawyer 

3) if your marriage is consummated yiur husband would be bisexual and not gay  

4) difficult to prove husband is gay unless you have some evidence of his profile on gay sites , chat messages exchanged with his gay friends etc 

5) best option is divorce by mutual consent 

6) get divorced and move on in life 
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
actual separation is not necessary, a spouse may living in a house with separation intent. Intention is necessary to establish this fact. It may start from the very first date of marriage. 

If both parties are agreed you may file a writ under article 142 before supreme court because only this court is empowered to grant immediate divorce on the ground of irreparable breakdown of marriage. 
Shivendra Pratap Singh
Advocate, Lucknow
2792 Answers
41 Consultations
4.9 on 5.0
1. Divorce whether mutual or contested cannot be filed before a year from the date of marriage, but this requirement can be waived by the court if there are exceptional circumstances. So wait for 3 more months or apply to the court under waiver clause. Either spouse can back out any time during the case.

2. You can unilaterally apply for divorce on the ground of cruelty as your husband has not performed his matrimonial duties, but this will take longer than mutual divorce to be decided. Unless you have direct evidence to prove that your husband is a homosexual you cannot succeed in the court on this ground. The court would not, on the basis of your statement alone, at the throw of a hat order any test to be conducted on your husband.

3. No fraud or any other criminal law provision has been breached by your husband, so his criminal prosecution is ruled out. The utmost you can do is sue him for compensation.

4. It is but natural that his lawyer would not talk directly to you. Let your lawyer talk to his lawyer.
Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
5.0 on 5.0
Hi, you can make allegation before the court that your husband is Gay but it is very difficult to prove the same in the court so it is better you can file a petition under Mutual consent so that matter will be settled as early as possible.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1.MCD is filed after mutually consenting about terminating the relationship by both the parties.So, both the parties agree to the plaint band sign the petition claiming decree of divorce on mutual consent,

2. So, husband's not agreeing to any thing he signed does not arise at all,

3. Generally, both approach a single lawyer who arranges his junior to notionally shown as appeared for the wife when the senior lawyer appears for the husband. there is not further hide and seek since it is MCD,

4. You can not prove that he is a gay and in MCD no blame or allegation is leveled on the other side,

5. File MCD petition stating that you two are incompatible and have not claim or allegation on/against each other and just pray for MCD,

6. The decree will be passed within 6 & 1/2 months of its filing.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
I was married last year and have been separated for nine months now. I want to file for mutual consent divorce in Mumbai but have been told that one year of separation is compulsory. Can someone please confirm?
My husband is gay and this is the reason for divorce.   If not mutual consent what are other grounds that I can use? Can my husband and his family be booked for fraud? Please advise.
You said you have been married last year and are living separately for the last nine months, why dont you wait for another 3 months and file mutual consent divorce is he is agreeing to it. 
You can book him for cheating you because he did this marriage knowing that he is gay and suppressed this fact which was very much material to the marriage.  His parents may claim innocence to it. 
T Kalaiselvan
Advocate, Vellore
14161 Answers
128 Consultations
5.0 on 5.0
If the date of separation is stated as one week after marriage, can it pose problems later as in presenting incorrect facts to court? Can the husband back out later saying the date is wrong?
Dont think so deep about it, the court will not go into the veracity of your pleadings.  You may state that you have been living separately immediately after marriage and for mutual consent divorce, you do not have to even state the reason for divorce, just incompatibility will be sufficient to seek divorce.



My lawyer advises talking to my husband's lawyer, but he won't give his lawyer's details. She is recommending sending a legal notice, I am not sure how that will help. Can you advise?
Instead of making simple things into a complicated one by involving the lawyers to solve this issue, you may better arrange to talk to him directly and decide about it by a direct dealing with him and afterwards engage your lawyer to file the formal papers for mutual consent divorce if has consented to it. 



The marriage was consummated and therefore, I was informed, annulment is not possible. The unfortunate part is our law doesn't acknowledge that gay men can perform with women. He has agreed for mutual consent and lawyers are recommending this option.
Thus the suggestion or mutual consent divorce shall be the best option because in contest divorce on this ground, it will be very hard to prove his nature namely 'Gay'.  Dont create a fuss on it, better terminate your married life as early as possible if you want to sigh a relief as well as proceed with a better life in the future. 




I am not interested in fighting cases for years and want to move on with life. But it also angers me that our legal system doesn't offer much help to women in my position. I am not looking for financial settlement, another reason why lawyers are discouraging litigation. But is there no way to attain justice in this case?
You can very well file a contested divorce case on the grounds that he is gay and it will not be possible to continue the married life with such person.  But the burden of proof will lie on you to prove it and you may not technical get support to establish your pleadings. So think about it properly and take a wise decision at a right time instead of harping over it. 



Not just the guy but his parents have planned this. For one year before the wedding I met his parents frequently and they painted a completely different picture. I feel horrible at the way I have been cheated.
The parents may claim innocence about this and also they may still try to defend their son, so you may not get any justice from them. 
T Kalaiselvan
Advocate, Vellore
14161 Answers
128 Consultations
5.0 on 5.0

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