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Divorce Petition by a Hindu Wife on the Grounds of Cruelty

by crisant
Divorce Petition

Divorce Petition by a Hindu Wife on the Grounds of Cruelty

Q1. My wife again and again insults me before other person and ask me to live beyond my income. She ask me to take loan. I am fed up and I want divorce. Is it not cruelty on me for which I can seek divorce ?

A. Constantly insulting the other spouse and humiliating him in presence of others does amount to cruelty. Requiring the other spouse to live beyond his means in order to enable the matrimonial life to continue and not desisting from extravagances though requested by other spouse can as well amount to cruelty in certain circumstances. Matrimonial life is for homogeneity and companionship. In the course of the same fortunes and limitations of each other have to be shared. To pester the other spouse to live beyond mean and invite indebtedness can hardly to considered as conducive to congenial married life. Persistency in this regard can be termed as lacking in feelings for the welfare, happiness and security of the other spouse. Callous attitude in this behalf can amount to cruelty.

Q2. My wife writes false letters to my superior officers and says that I am having another wife somewhere else. She also does not treat my parents or gives any respect when they come to live in my house. Can I have divorce on such instances?

A. Wife writing defamatory letters imputing adultery to husband, to his official superior, other authorities and colleagues, wife eroding the mental peace of husband by showing callous indifference to husband’s parents who were very unwelcome guests to her household. This is cruelty on the part of the wife and you can seek divorce on these grounds under the Hindu Marriage Act, if the marriage is performed according to Hindu rites.

Q3. My marriage was held according to Hindu Rites but was registered under Special Marriage Act. Now my husband does not allow me to have physical relations with him. I am told in such circumstance I can have divorce under Special Marriage Act.

A. Marriage solemnized according to Hindu rites subsequently registered under the Special Marriage Act, would not confer upon a spouse the right to annual marriage under s. 25 (I) of the Special Marriage Act. Under s. 25 (I) willful refusal of a respondent spouse to consummate the marriage is a ground for annulling the marriage at the instance of the petitioner. On no such ground a Hindu Marriage under the Hindu Marriage Act could be annulled although impotence at the time of marriage and its being continued till the institution of the proceeding was such a ground.

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Q4. I am a 28 year old married girl. My husband harasses me for dowry. What remedy do I have?

A. In this case you can approach D.C.P (Women Cell ) and complain against your husband u/s 498 A of Indian Penal CodeYou can also file a divorce petition in a separate Matrimonial Court.

Q5. I am a 32 year old married woman. For two years I am living separately from my husband. My husband has forcibly taken over four year old son with him. The husband is a drunkard and cannot take care of our son. What should I do?

A. You can file an application in the court for custody of her son on the basis of the ground that your husband is a drunkard.

Q6. I am a Hindu Boy and want to marry a Muslim girl . How is it possible?

A. You can get your marriage registered under Special Marriage Act, in case none of you want to change your religion. And in case one of you change your religion then your marriage can be registered under your respective Marriage Acts.

Q7. How long after marriage can a person seek divorce Under Hindu Law?

A. Under Section 14 of the Hindu Marriage Act 1955, no petition for divorce can be filed within one year of the marriage. But in case the petitioner’s case is of exceptional hardship High Court is in empowered to grant leave to file the case before the expiry of one year.

Q8. My friend’s husband has left my friend and married another woman. What action can be taken against her husband Under Hindu Law?

A. Under Section 17 of the Hindu Marriage Act, bigamy is punishable u/s 494 & 495 of the Indian Penal Code. Section 494 prescribes for imprisonment, which may extend to 7 years and fine. So a complaint be lodged against the husband with the police.

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Q9. Kindly enlighten me on the minimum required age to marry under The Hindu Law?

A. According to Section 5 ( iii) of the Hindu Marriage Act, the bridegroom has to complete 21 years of age and the bride 18 years of age. Any marriage in contravention of this attracts simple imprisonment, which may extend to 15 days or fine, which may extend to Rs.1000/- or with both.

Q10. I got married on 25th Dec. 1997 and since 1st Dec. 1999 my wife left the house and being a working lady she has started staying separately till today. Our Problem is Attitude problem and Result is Clashes. Now we want to file a joint petition for divorce by mutual consent. How should we proceed? How much time will it take for the divorce? When can a person marry again after obtaining a decree of divorce?

A. Divorce by mutual consent can be obtained by Husband and Wife in terms of Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said Section require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further.

“Living Separately” has been now defined by the Supreme Court as “not living as husband and wife and not performing marital obligations”, even if the husband and wife are living under the same roof. However, since your wife has left the house on 1st December, 1999, you have to plead that she has been living separately for the last more than one year or had not been performing matrimonial obligations for the past one year, even though living under the same roof.

A joint petition has to be filed in this regard and after the filing of the same the Court grants a minimum period of six months (and maximum 18 months) for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court.

If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce can not be granted. Further, apart from the same, before passing a decree of divorce, the court has also to be satisfied that the consent has not been obtained by force, fraud or undue influence.

With regard to the re-marriage after divorce, Section 15 of the Hindu Marriage Act 1955, provides that after a decree of divorce has been granted, in case there is no right of appeal against the decree or if there is a right, the time has expired without an appeal having been presented or if the appeal filed has been dismissed, it shall be lawful for either party to marry again. The period of appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from the date of the decree or order.

Q11. If the wife has left the house of her husband and was living away from him without any reasonable cause, can the husband be entitled to judicial separation or divorce? Is there a time period for filing of divorce petition?

A. In case the wife has left the house of the husband and is living away from him without any reasonable cause, the husband is entitled to judicial separation or divorce. The condition however, is that the desertion of the wife should be for a continuous period of not less than two years, immediately preceding the presentation of the petition for grant of judicial separation or divorce. Thus, in order to entitle you to file a petition for divorce, you would be required to prove that your wife has deserted you without any reasonable cause and has been living separately for a continuous period of two years.

Q12. If the wife has left the house of her husband and was living away from him without any reasonable cause, can the husband be entitled to judicial separation or divorce? Can the daily domestic quarrels between husband and wife entitle either of the two of file a petition for divorce against the other? Can grounds for mental cruelty be pleaded to claim a divorce from the other spouse, even if there is no physical cruelty by the spouse to the other spouse?

A. A Husband is entitled to seek divorce or judicial separation in case the wife is living away from him without any reasonable cause. However, the wife should be living away from the husband for a continuous period of not less than 2 years, before any petition for judicial separation or divorce can be filed. Daily domestic quarrels between husband and wife do not entitle either of the two to file a petition for divorce against the other.

It is well established in law that the daily normal wear and tear in matrimonial life does not entitle a spouse to seek divorce. It must be more serious than the ordinary wear and tear of a married life. Mental cruelty can certainly be pleaded to claim divorce from the other spouse even if there is no physical cruelty. The cruelty however should be of such a nature that it causes reasonable apprehension in the mind of the spouse claiming divorce, that it would be harmful and injurious for him /her to live with the other spouse.

Q13. If one of the spouse is not at all ready to give the divorce at any cost, then how much maximum time it can take to get the decree for divorce? I think this is my last question? Please suggest one good lawyer in Delhi?

A. If one of the spouse is not ready to give divorce at any cost, then the remedy for the other spouse is to file a petition for divorce before the court. However, a divorce can only be granted under certain prescribed circumstances under Hindu Law which are described in Section 13 of the Hindu Marriage Act. These grounds include cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.

The period of time for seeking a divorce decree can really not be specified, because it depends upon a number of circumstances. However, still a general estimate which can be given in an average litigation of such a nature is around 4 to 5 years before the District Court. In so far as your question relating to suggesting a lawyer in Delhi is concerned, we regret that as a matter of principle, we cannot recommend any name to anybody.

Q14. If during the period of six months after the filing of petition for divorce by mutual consent, any on of the parties withdraws the consent, then what options the other party is left with in order to continue to get the decree for divorce? How can one withdraw the consent?

A. Under Section 13-B of the Hindu Marriage Act of 1950, the parties can seek divorce by mutual consent by filing a petition before the court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months where after the party has to again approach the court for making a second motion confirming the mutual consent earlier given in the petitioner filed by them.

It is only after this second motion is made that a decree of the divorce is granted by the court. During this period of 6 months when the petition is pending , any of the spouse is fully entitled to withdraw the mutual consent. In such an eventuality no divorce decree can granted by the court. The consent can be withdrawn during this period of 6 months by either of the spouse, by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent. The court is bound under such circumstances not to grant a decree of divorce.

There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950 . In such a situation divorce can be granted only on certain specified grounds as mentioned in the said provision . These grounds include cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.

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