• Divorce

I am a male and want to file for divorce on grounds of mental cruelty. I have been married for about 14 months. Marriage has not been consummated (initially on her part and later on mine). Before marriage our engagement continued for about 2 and half years in which we had lot of conflicts (mainly on her part). But somehow my family convinced me (through emotional torture) for marriage. After marriage I tried to manage but her behavior did not change which repelled me. She is highly educated yet she does things totally irrational. When I stop talking and all then her constant nagging (without break) starts for reconciliation (that she will do anything, I can do whatever I want to her and same words by her family). I am an educated person and i have no interest in being male dominating figure, with her actions it is impossible to live with her. Though I do not have any proof except one time chat (constantly nagging). 
We lived together for about 20 days or something at my paternal home (in rajasthan) and now I live in Delhi (alone) and she is living with her family. With these facts can I get divorce on grounds of mental cruelty (even SC recognizes nagging behavior as a ground for mental cruelty)?
One more thing, her father holds a good position in govt department and has good political contacts. So I am sure he will come at me fiercely with DV and Dowry cases, Will those cases have any weight since they would have been filed after filing for divorce? and Can I take any precautionary measure against such cases (e.g. protection order from court while filing for divorce). 

Thanks.
Asked 7 months ago in Family Law from Delhi, Delhi
Religion: Hindu
1) you can file for divorce on grounds of mental cruelty. 

2) please not e that contested divorce cases take around 5 years to be disposed of 

3) in case wife files for 498A obtain AB from sessions court 

4) 80 per cent of 498A cases end in acquittal 

5) iif DV case is filed file detailed reply denying the allegations . contest case on meritts

Ajay Sethi
Advocate, Mumbai
23089 Answers
1212 Consultations
5.0 on 5.0
Dear Querist
If there is no chance for living with her then immediately file a divorce case against her before family court and also after filing the divorce case, send some letter to govt. authorities regarding your apprehensions of implication in false cases and those letters should be only for record and not for any action.

After filing the divorce, if they filed any case like dowry or DV then the court may consider as counter blast case and the weight of that cases will be less then your divorce case.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3513 Answers
129 Consultations
4.9 on 5.0
refusing to perform marital responsibility constitutes mental cruelty. you can file divorce petition on the ground of cruelty. 

you should  talk with elders of both families and convince them to file divorce on mutual consent because you are not living together for more than 12 months and there is also no hope to live together, this the most convenient way to get divorce.  
Shivendra Pratap Singh
Advocate, Lucknow
2706 Answers
41 Consultations
4.9 on 5.0
Hi
 you should certainly file for  Divorce on grounds of cruelty and   refusal to consummate marriage, 
The marriage can be declared on the basis of no-consummation ground  in two counts .
1. The proof that your spouse  is impotent, medical records that proves impotency, inability.
2. prove there was no cohabitation  due to a willful refusal from her part.as your wife is not going to admit that she failed to do so. 
Since you both are staying separately you should seek divorce on ground of cruelty which arise out of her will full refusal to cohabit with  you and she deserted you 
refusal to have sexual relation ship in marriage is a ground for divorce as it is mental cruelty .
 cruelty is mental  cruelty which have to be proved on the basis of the incidents, behaviour, refusal to be in a conjugal relationship.
The small incidents which are the daily  happenings or repeatedly occurred, which troubled you and your family should form the parts of pleadings to prove cruelty.
Thresiamma G. Mathew
Advocate, Mumbai
1315 Answers
85 Consultations
5.0 on 5.0
It is suggested to that you file a case of divorce in Delhi and for the same proper paper work and grounds need to be prepared. Yes Nagging behaviour amounts to cruelty and you can seek divorce. As you said that you are not staying with her for almost last one year if the same can be proved there is no question that the DV case will stand, but yes a 498a can be filed although given your facts the 498A will also not stay for long. It is suggested speak to a local lawyer and share the case details with the layer for further guidance. Alternatively please feel free to contact our office for advice on subject .  Yes as stated the case filed after the Divorce may have lesser impact but the it is suggested to file the case without further delay. 
Atulay Nehra
Advocate, Noida
424 Answers
15 Consultations
4.7 on 5.0
1. Non-consummation of marriage is a ground for annulment, so you may apply for annulment of marriage. 

2. Divorce or annulment proceedings have no nexus with DV and 498A cases which you can contest on merits. The moment dowry case is filed you should apply for anticipatory bail and then contest the case on merits. 
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
Divorce in general means the breakage or dissolution of marriage with the help of law, so that one can leave his or her spouse and become free from marital duties with some exceptions. Non consummation is also comes under cruelty. Refusal to have sexual relation ship in marriage is a ground for divorce as it is mental cruelty.

What Is Cruelty?
The Supreme court defined that the expression ‘cruelty ‘has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course of or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intention or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental the problem presents difficulties. First, the enquiry must be as to the nature of cruel treatment.. Second the impact of such treatment in the mind of spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Thus the impact or injurious effect on the other spouse need not be established if the conduct itself proved or admitted.

It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.

If any DV case.false 498A  will filed by your spouse then contest the cases on merit .
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
You can very well file a divorce case on the grounds of cruelty for such reasons.
If you anticipate her father to take revenge on you, better be watchful and once receive a summon from police, you may obtain AB and then challenge her case properly in the trial court. 
T Kalaiselvan
Advocate, Vellore
13907 Answers
127 Consultations
5.0 on 5.0
if you acquitted from DV case on the ground of false or base less allegation then you can file divorce petition on the ground of filing false criminal case. 

you can file case at nagpur if she wants to transfer it to rajasthan then she can file a TA before the Supreme court, which generally not possible. 

you petition of annulment of marriage could be converted into divorce petition on leave of the court. 
Shivendra Pratap Singh
Advocate, Lucknow
2706 Answers
41 Consultations
4.9 on 5.0
1) if acquitted  by courts  no need to mention in your employment forms 

2) you cant be forced to stay with your wife 

3) dont file for annulment 

4) better file for divorce on grounds of mental  cruelty in jaipur or nagaur
Ajay Sethi
Advocate, Mumbai
23089 Answers
1212 Consultations
5.0 on 5.0
1. when you get acquittal from the charges and in your employment form if there is any clause regarding the acquittal then you have to mention and if there is only the clause regarding the conviction then no need to mention the same.
2. Nobody can force you to live with her, the court only pass an order regarding right to conjugal rights petition if she filed but can not force to you to live with her, but she may get a valid reason to get divorce from you based on the non compliance of RCR decree.

3. Annulment can not be filed based on non consummation of marriage but if the non-consummation is due to impotency of opposite party then can be filed annulment petition.
4. you can not be changed annulment petition to contested divorce petition, you have to wiithdraw your annulment petition and again file a fresh petition for divorce.
5. Jurisdiction is decided as per section 19 of Hindu ,arriage act-1955
read the below section carefully.

Section 19:- Court to which petition shall be presented. ?Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction?
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]

Jurisdiction of the Court If a marriage is solemnised at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on a ground that the husband resides outside the limits of municipal corporation; Arjun Singhal v. Pushpa Karwel, AIR 2003 MP 189. 


Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3513 Answers
129 Consultations
4.9 on 5.0
f they file for DV or dowry case and I get acquitted later then would I still need to mention these charges in employment forms? and one more question is that in case I am not granted divorce decree then can I be legally forced to live with her? 

After getting acquitted from such cases, there is no charge remaining on you so you need not mention them in the employment form.
No force can force you to live with her against your wishes even if the divorce is not granted in your favor. 






As I have already put that non consummation was initially from her side but later from my side. Keeping this in view, can I still file for annulment? and if I can then suppose I file it and I am not granted annulment then can I change the petition from annulment to divorce in between? and one more thing that jurisdiction for this case would be either jaipur (where she lives) or nagaur (my paternal home), so what do you think about court's views there on divorce matters.

In my opinion, it would be better you file a case for divorce directly on the grounds of cruelty since annulment requires lot of things to be established before court and you may not get a favorable decision.
Moreover annulment petition cannot be amended to contested divorce, hence that possibility is ruled out.
You can file a divorce petition either in the place of marriage or place where you both last resided together or in the place where she is currently residing.
T Kalaiselvan
Advocate, Vellore
13907 Answers
127 Consultations
5.0 on 5.0
No need to mention in your employment forms.
Nobody can legally force a spouse to live with his partner. The court can pass a decree in RCR  but not to force to live with partner. If the decree is not obeyed the person they can’t claim maintenance etc… But it is a good reason for getting a divorce based on the non compliance of RCR decree.
Annulment petition is not an advisable one in your situation. File a divorce petition. Annulment petition cannot be amended to a contested divorce petition. 

You can file a divorce petition 
1. The place of marriage was solemnized or 
2. Place where you both last resided together or 
3. in the place where she is currently residing.
Better to file it at Nagpur 
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
You can file for divorce if non-consummation was due to refusal of both spouses to consummate the marriage. Refusal of the court to annul your marriage does not preclude you from subsequently filing for divorce if there are sustainable legal grounds to do so. The jurisdiction will be either where the marriage took place or where you last resided with her but it is most likely that she will apply to get the case transferred to her place.
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
13907 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23089 Answers
1212 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5137 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3513 Answers
129 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
424 Answers
15 Consultations
4.7 on 5.0
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2706 Answers
41 Consultations
4.9 on 5.0