• Divorce for Special Marriage Act marriage

Hindu lady married to an Anglo Indian man for past 7 years,staying separately for last 5 years. Have a flat in joint name and wife is the co applicant for the property in bank for home loan. Husband is not allowing wife to stay in the property and is not agreeing to divorce and not agreeing to pay some amount in exchange of full ownership of the apartment from wife as he cannot afford to lose her as co applicant.Husband is not financially strong but is not even willing to sell the ownership to his wife for the flat.
Wife needs divorce at any cost and asap she has differences with her husband and does not want to be in it any longer.
Asked 4 years ago in Family Law from Kolkata, West Bengal
Religion: Hindu
As they have been living separately for more than 5 years the wife can file for divorce.
It is advisable to get the husband to consent to divorce as a consented divorce can be obtained in 6 month's time.

If he is not reasonable in agreeing to divorce as he just wants to keep her as co-borrower you will need to engage a lawyer locally and send him a legal notice demanding divorce and find a buyer who would buy the flat with loan so that the proceeds can be shared.

A contested divorce can take years to be decreed which is why I would advise exerting pressure on him to agree to mutually consented divorce.As a first step have a legal notice sent.
S J Mathew
Advocate, Mumbai
2240 Answers
110 Consultations

5.0 on 5.0

Hi, you have to file a divorce petition on the ground of cruelty and once the matter is before the court husband has to come before the court and there you can try for negotiation.
Pradeep Bharathipura
Advocate, Bangalore
4551 Answers
203 Consultations

4.5 on 5.0

1. Who is paying EMIs for the said flat?

2. If wife is paying the EMI, she should file a declaratory suit praying for declaration that she is the sole owner of the said flat which has been registered in joint names,

3. If she is not paying the EMIs she should file a partition suit for the flat,

4. When she comes back to India, she should lodge a police complaint stating that she has been forcibly stopped by her husband in entering the flat jointly owned by her,

5. Lodge a police3 complaint u/s498A of IPC against the husband,

6. Let her file DV case with a prayer for accomadation right in her jointly owned flat with protection,

7. Lastly file a divorce suit on the ground of cruelty.
Krishna Kishore Ganguly
Advocate, Kolkata
18510 Answers
448 Consultations

5.0 on 5.0

1) wife is 50%owner of the flat . 

2) she should file a DV complaint claiming right to stay in her matrimonial home . since flat is in joint names husband cannot refuse to permit wife to stay in said flat . 

3)since husband and wife are staying separate for 5 years wife can file for divorce on grounds of  cruelty . 

4) if husband consents said petition can be converted into divorce by mutual consent . 

5)you can also  file suit for partition and obtain an injunction restraining your husband from creating any third party rights on said flat
Ajay Sethi
Advocate, Mumbai
45583 Answers
2677 Consultations

5.0 on 5.0

Wife has half the share of the flat
File a DV complaint claiming right to stay in her matrimonial home. Since it in both if your name wife can stay there.since you both are staying separately for more than 5 years you can file a divorce case on the ground of desertion.if you both are ready then divorce by mutual consent ie the easiest way to get divorce.file a suit for dividing the flat and you can obtain restraining your husband and give it to others by injunction.
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultation

4.5 on 5.0

1. To get divorce the wife can file suit for dissolution of marriage.
2. To get provision for maintenance she can file case for maintenance 125 crpc and u/s 12 of PWDV Act.
3. To get her right to enjoy the property and even to stay there she can seek such relief under various provisions of PWDV Act.
4. To fructify these option you should meet a lawyer asap.
Good luck.
Devajyoti Barman
Advocate, Kolkata
12849 Answers
166 Consultations

5.0 on 5.0

first you should file petition under DV act claim remdies as per your need. you can also file civil suit for injection for flat. you case will go for mediation there you can force him for MCD. IF NOT THEN YOU CAN FILE SUIT FOR DIVORCE ON GROUND OF CRUELTY & DESERTION
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations

4.6 on 5.0

Dear Querist
if the marriage was solemnized as per Special Marriage Act then the wife may file a divorce petition before family court as per section 27 of SPA
27. Divorce

2[(1)] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband, or the wife on the ground that the respondent-

1[(a) Has, after the solemnization of the marriage. had voluntary sexual intercourse with any person other than his or her spouse-, or

(b) Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(c) If undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code;

3[* * *]

(d) Has since the solemnization of the marriage treated the petitioner with cruelty; or

1[(e) Has been incurably of unsound mind, or hits been suffering continuously or intermittently from mental disorder of such a kind and to such all extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation. -In this clause, -

(i) The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(ii) The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or

(f) Has been suffering from venereal disease in a communicable form; or]

(g) Has 5[* * *] been suffering from leprosy, the disease not having been contracted from the petitioner; or,

(h) Has not been heard of as being alive for period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; 6[* * *]

7[Explanation.- In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly.]

5[* * * * *]

8[* * * * *]

7[(lA) A wife may also present a petition for divorce to the district court on the ground, -

(i) That her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) That in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding Section 488 of the Code of Criminal Procedure, 1898 [5 of 1898]), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards]

9[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground-

(i) That there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or up wards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) That there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties]

the wife may file a domestic violence case against husband if he recently refused or stop to enter in the property.
Nadeem Qureshi
Advocate, New Delhi
4856 Answers
221 Consultations

4.9 on 5.0

You can file a case for divorce on the ground of desertion since the wife is living seperately from her husband since last 5 years and only 2 years is sufficient to file a case for divorce in case of desertion. You can also claim the maintainence  u/s 125 crpc and the husband cannot refuse to give share in the property since you are the 50% owner in the property so he cannot refuse you to stay in the house.
Swithin Subhashish Lawrence
Advocate, Allahabad
47 Answers
3 Consultations

4.8 on 5.0

Maintenance is a bridge and it has access not from one side only. So, if you seek divorce and whatever may be the ground, husband is not earning well enough to maintain himself and child, he is entitled to get interim maintenance as well as litigation expenses from the other side, if the latter earns well. Divorce is a seven digit word but it has as many as consequences in legal parlance.
Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations

4.4 on 5.0

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