Hoe to get divorce under non-consumation of marriage
I have been married for 5 yrs now. There has been NO PHYSICAL relation between us since the inception of our marriage, due to unwillingness from my wives side.
Also she has harrassed me by constantly doubting me for having affairs with my professional collegues.
Since July 2015 she has been staying in Vadodara at her parents place.
I sent her a legal notice of 7 days return in Jan. But she replied with another notice asking for maintenance money under 125 crpc.
What to do?
Asked 2 years ago in Family Law from Thane, Maharashtra
You can certainly get divorce from family court on the ground that your marriage has not been consummated due to unwillingness of your wife.
First you may send a legal notice asking for divorce through Mutual Consent Divorce because that is fastest if she doesnt cooperate then file for contested divorce.
Many courts have denied maintenance to the wife if it has been proved that wife is at fault or that she has committed any matrimonial offence.
So you can file for divorce on grounds of non-consummation of marriage and cruelty.
1) file for divorce on grounds of mental cruelty
2) refusal to have sex amounts to mental cruelty
3) wife is entitled to maintenance if she is not working
You can then file for divorce on the ground of cruelty against your wife, which she will be given an opportunity to contest in defence. Also be prepared to be hit with criminal cases from her side.
You should have filed the annulment of marriage by a decree of nullity within one year from the date of marriage for willful non-consummation of marriage by her.
Even now you can file a divorce case on the grounds of non-consummation of marriage clubbed with desertion. Do not file RCR petition because it is of no use as she is not at all interested in the married life with you which can be evidently seen from the non-consummation of marriage nor showing any interest in the conjugal relationship with you.
You can challenge her maintenance cases on the same grounds.
On grounds of non consummation of marriage it is better to file for divorce, since your wife is refusing to have physical relation with you and as she has left her matrimonial home, you have issued a legal notice asking her to return to her matrimonial home, she replied with another notice asking for maintenance money.
One thing is clear she wants monetary support from you only. File for annulment of marriage on grounds of non-consummation of your marriage.
If she files for maintenance refuse to pay on grounds that she has refused to be your wife and perform her duties as a dutiful wife.
Thank you all for responding so promptly. I already had explored the option of filing for Divorce on Non Consumation and cruelty ground. Just that I don't have any solid documented proof to back that we haven't had any kind of physical relation. The doctor which I had consulted for my wife has refused to give it in writing. Will it be a problem in court?
Asked 2 years ago
1) do you have any emails , messages exchanged with your wife regarding non consummation of marriage
2) you have to prove allegations made in your pettion that marriage has not been consummated
on receipt of the summons from court, if your wife is unable to substantiate that the marriage is indeed consummated then you do not need proof at the time of filing of the petition.
The doctor whom you consulted can be summoned to court as a witness, under oath he is bound to testify the truth only. Records for having consulted him can be produced by you as additional proof.
No doctor will give it in writing as rules framed by Medical Council of India (MCI) do not permit this. Such allegations are proved by ocular evidence.
Devoid of physical relation constitute matrimonial cruelty . You should file divorce petition. Don't afraid her complaint under sea 125 CRPC because she has no valid reason to live separate from you. Section 125 (3) prevents such type of wife to get maintenance.
Devoid of physicalrelation can be easily prove in your case because Law always presumes that husband and wife have physical relation if it is proved that they have been living together for long time. But also presumes that if husband wants child and both persons are capable , So devoid of child may infer that there has been devoid of physical relation.
You do not have to worry if you do not have any evidence to prove the non-consummation of marriage. You can file the case on the same grounds, wait and watch if she denies your allegation. If she says that the marriage has been consummated you can tell before court that if she is ready for the conjugal activities with you, you are ready to withdraw the case and take her back immediately. This will terrorise her and she withdraw her statement hurriedly or the fear of being force to have conjugal relationship with you. This will be more than an evidence to prove your case.
1. File a divorce petition on the ground of cruelty since refusing to have physical relationship by wife or husband is also considered as cruelty,
2. She is expected to file maintenance petition u/s125 of Cr.P.C. which you shall have to contest fittingly.
1. You shall have to prove your allegation with evidence,
2. If she is still a virgin, you can pray for both of your medical examination by a Govt. Hospital to prove your allegation.