• Seeking divorce on the ground of cruelty, demeaning and humiliation

I am 50 years old and having an unsuccessful marriage life of 15+ years. I am also a Government servant. A girl child is born out of our wedlock who is in upper class now and staying with mother. My wife voluntarily left me and now staying with our daughter though our daughter was admitted by me in a boarding school in a hill station with the consent of all three of us. My wife had a tendency to create ruckus at drop of a hat. Her tactics to amend me in case I differ to her wish was to create a situation wherein it will appear that she will commit suicide. For instance, writing suicide note addressing someone in her family and leaving it in our table to ensure that I have seen those notes, rapping dupatta in ceiling fan after locking door, going out in dead hours of night with our small children of 4-8 years of age as if she would commit suicide etc. etc. besides undermining my presence in family. My wife often said me that they (my wife and daughter) live happily and peacefully whenever I am in tour. Now being fed up with her every day tantrum and abuse, I decided to seek divorce in a lower court. Incidentally I may inform that I have kept my in-laws informed about her acts of offence (though no help came from them) and also to the concerned police stations as I was afraid of her sinister mindset. We are leaving separately since the year 2010. Is the situation as explained above can be construed as enough ground to get a decree of divorce?
Asked 8 months ago in Family Law from Kolkata, West Bengal
Religion: Hindu
1) file for divorce on grounds of mental cruelty and desertion 

2) threats to commit suicide amount to mental cruelty 

3) constantly abusing husband amount to mental cruelty 

4) since yiur wife deserted you more than 6 years at you can file for divorce on grounds of desertion 
Ajay Sethi
Advocate, Mumbai
23284 Answers
1219 Consultations
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You are free to apply for dissolution of marriage as the conduct of your spouse amounts to mental cruelty, but you will have to prove that in the court. If you go to court then be also ready to be hit back by cases of domestic violence and dowry demands, which you can contest on merits in the court.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
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Yes.
Continuous threats of suicide is also mental cruelty and grounds for divorce. 
Hopefully you have narrated all of the above in your plaint and are in a position to demonstrate the same in court at the time of evidence.  
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
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1. Try to collect evidence of her cruelty by audio/video recording her conversations,

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

3. For filing divorce suit, you shall have submit your marriage certificate and/or marriage invitation card/ ,marriage photographs and your present address proof,

4. She will file maintenance petition if she is not employed and in that case you dhall have to pay an amount with in 1/5th to 1/3rd of your monthly net salary,

5. So, buy property before filing the suit so that a good amount of money can be shown as compulsorily deducted from your monthly salary,

6. Alternatively, you can negotiate with your wife for jointly filing a  mutual consent  divorce petition which will be decided with in 6 & 1/2 months from the date of its filing.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
  Following are the grounds under which either of the parties are entitled to seek a decree of divorce under section 13 of the hindu marriage Act, 1955
(a)	Adultery 
b. Cruelty- 
under clause (ia) of sub section (1) of section 13 and under sub-section(1) of section 10 of the hindu marrage act, 1955, cruelty is a ground for divorce and judicial separation respectively. Whether the act or conduct complained of is covered under the grounds of cruelty or not, will always be decided on facts and circumstances in each case.

What amounts to cruelty
Under the English law, legal concept of cruelty is conduct of such a character as to cause danger to life, limb or health(physical or mental) or as to give rise to a reasonable appreshension of such danger . before the amendment of the hindu marriage act which was given to the ground of cruelty. But even before the amendment , the supreme court in N.G.Dastane v.S.Dastane (1975) 2SCC 326(1975 3SCR 967:AIR 1975 SC 1534, tried to give a literal meaning to the ground of cruelty applicable in terms of divorce or judicial separation.                 Though the concept of English law and the hindu marriage act in terms of cruelty as a ground for divorce or judicial separation is more or less the same, yet the learned judges in india still hold marriage is a sacrament taking into consideration the social and cultural conditions of our country. In your case suicidal threat from wife is also considered as a cruelty. 

Cruelty is usually classified under the following two heads:
a)	Physical cruelty
b)	Mental cruelty

Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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1) yiu can rely upon complaints made to police station , suicide notes etc to prove mental cruelty 

2) DV is a continuing offence and complaint is maintainable after 15 years of marriage 

3) wife has to prove allegations made in DV and 498A case 
Ajay Sethi
Advocate, Mumbai
23284 Answers
1219 Consultations
5.0 on 5.0
1. Try to collect audio recording of her conversations to prove cruelty,

2. Your comments mentioned in your diary will not be accepted as a valid evidence of her cruelty,

3. Complaint u/s498A is normally not entertained after 15 years of marriage. However, she can file those complaints/suits which will be proved to be false during the course of the trial.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
You can use all of these in the court as evidence. Whether it is sufficient or not can be known only after perusal thereof.  A complaint for DV or 498A can be filed at anytime during marriage and also regardless of filing of divorce. 
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Suicidal tendency, nature ,threat etc are amount to mental cruelty.. Desertion also is a good cause of divorce in your case.   
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
DV suit not maintainable if the suit is not filed with in 1 year from the date of incident. 
498A will be applicable only if it happens within 7 years of marriage.
in your case both DV and 498A will be rejected in courts. No worries
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
We are leaving separately since the year 2010. Is the situation as explained above can be construed as enough ground to get a decree of divorce?

Your case is fit for the relief you seek now, i.e., divorce on the grounds of cruelty and desertion.
You should gather proper evidence and prove your case, you can make a headway.
T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
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The evidences in your possession are ample enough to prove your case for divorce on the grounds of cruelty.

If she has not lodged criminal complaints under section 498a or DV case so far i.e., even after three years of filing the divorce case, she may not file any such cse hereafter because she knows that her complaint may not be entertained at this belated stage and also it can be termed as an afterthought issue.  So relax.
T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
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