• Need a divorce form my wife

I am married for less than a year(Married on 27 may 2015). My wife fights with me every now and then on silly issues and goes back to her parents house. She is now living with her parents fro 3 months. My family has tried to talk to her parents but they are not eager to talk and always blame us and talk very rude. I want a divorce from my wife. I suspect she is also having a extra marital affair. She is also working. What are the possibilites/options for me to get  the divorce.
Asked 7 months ago in Family Law from Noida, Uttar Pradesh
Religion: Hindu
File a divorce case against her with an application under section 14 of Hindu marriage act 1955.
If the matter is exceptional hardship then divorce petition can be filed within one year of marriage.
Feel free to call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1) you can only in exceptional circumstances file for divorce before expiry of one year from date of marriage 

2) it is better you file for divorce by mutual consent . it would take around 6 months 

3) contested divorce would take 5 years to be disposed of 

4) if wife does not agree for mutual consent divorce you would have to file for contested divorce on grounds recognised by HMA

5) if you feel  wife is having extra marital affair gather evidence of her affair. 

6) then file for divorce on grounds of adultery , mental cruelty 
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
Divorce allows a person to break free from an onerous marital relationship. But since marriage is not merely a contract but a very important societal institution. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear.

For getting a divorce you have to option.
1. Divorce by mutual consent divorce petition 
2. Divorce by contested divorce petition. 

Contested Divorce
As per the law as it stands our legal system does not allow divorce to be granted on the ground of irretrievable breakdown of marriage or irreconcilable differences. To get a divorce one has to prove wrongdoing on the part of other spouse, and impeccable conduct of one’s own in order to win. Divorce is granted only on proof of fault or guilty conduct of one party and innocence of the other. The most common ground for divorce is cruelty. Another common ground is adultery (sexual intercourse outside wedlock) one instance of lapse of virtue can lead to divorce.

Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. However there may be cases where the decision to part may not be a mutual one, and it is only one party who considers the union to be troublesome and worth getting rid off. Such situations lead to Divorce being contested.

Ground for Divorce under Hindu Marriage Act, 1955
Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act and such are included under cruelty.

Cruelty under matrimonial laws is required to be proved by preponderance of probabilities,the cause alleged if proved is sufficient for a decree in favor of the applicant provided that the applicant does not take the advantage of his own wrong .

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.

Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

judicial separation and divorce, the judiciary in India is demanding irretrievable breakdown of marriage as a special ground for divorce. You can use the cruelty as a good ground for divorce.A petition for divorce can only be filed after one year of the marriage.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
I am married for less than a year(Married on 27 may 2015). My wife fights with me every now and then on silly issues and goes back to her parents house. She is now living with her parents fro 3 months. My family has tried to talk to her parents but they are not eager to talk and always blame us and talk very rude. I want a divorce from my wife. I suspect she is also having a extra marital affair. She is also working. What are the possibilites/options for me to get  the divorce.

If you think that there are no possibilities for rejoining and living a peaceful life and there are no chances to save the marriage due to her arrogant and reckless and rud behavior, you may decide about dissolving the marriage by a decree of divorce on the grounds of cruelty.
But you have to wait for completion of one year period from the date of marriage.
You may also be prepared for her provocative reaction by retaliating with false criminal cases unleashed on you and your family members by taking suitable precautions agaisnt such onslaught.
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
Thank you very much for detailed response. going through all this it seems that mutual consent  is the most feasible option one can opt for. Since me and my wife both are working on what grounds she can seek alimony . Also under marriage divorce laws for mutual consent, can she ask for alimony and what are laws related to it?

If she agrees for mutual consent divorce, you may immediately agree for the same and file a joint petition before family court in this regard.
Shemay not eligible for alimony since she is employed but you may make it a point to return al her articles held in your possession.
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
1. Apply for MCD to separate amicably as it is the only hassle free way to dissolve the marriage under the Indian law, but it requires a positive agreement between the spouses, failing which the only remedy for you is to apply for contested divorce on the ground of cruelty. Gather evidence of her extra marital affair through detectives if you wish to apply for dissolution of marriage on the ground of adultery.

2. A working wife is disqualified from getting financial support from her husband. 

3. In MCD the spouses can agree on any sum of money as alimony. 
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
A Hindu male is legally obligated to maintain his spouse. Maintenance includes provision for food, residence, clothing, education and medical attendance and treatment.The Supreme Court of India has held that no fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute.The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad principles courts have to be kept in mind while determining maintenance or permanent alimony

But in the case of mutual divorce petition the parties may arrived early in a mutual terms like lum sum amount as maintenance amount .So try for that .More over a wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1) alimony amount has to be decided by parties by mutual consent 

2) if both are not agreeable to said figure then you have to file for contested divorce and let court decide the alimony to be awarded 
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
Dear Querist
before filing mutual consent divorce, execute a MOU with her in which all the terms and conditions should be mentioned as per your requirement. after that file the MCD before family court and the MOU will be the part of the proceedings/pleadings of your petition.
As she is working and able to maintain herself then there is no alimony.
Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Hi, For the payment of the alimony is concerned it is purely between you and your wife and if your wife does not wish to claim any maintenance from you then there ends the matter. But in Mutual consent divorce every thing is between you are your wife.

2. As per law if the wife is capable of maintaining herself then she can't claim maintenance from her husband.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
You should negotiate the terms for mutual consent immediately if that is the choice you have been pushed to.
This step to be taken immediately without giving her time to think about initiating any false criminal complaint against you.
In case she rushes with any criminal cases before you finalise the talks for mutual consent, then you may first obtain anticipatory bail from court and challenge her false case in the trial court properly.
If she is initiating domestic violence case, let she do it, during the negotiations the mutual consent divorce case process uyoou make a condition for her to withdraw the said case
T Kalaiselvan
Advocate, Vellore
14138 Answers
127 Consultations
5.0 on 5.0
1) inform your wife that you want amicable settlement and divorce by mutual consent 

2) wife will not file false cases if you are agreeable divorce by mutual consent 

Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
Apply for anticipatory bail to preempt your arrest if the complaint is filed.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
When the False case will come face it and take the contention as per their petitions. If needed take anticipatory bails if she file 498A cases against you. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0

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