Advocate Siddhant Sharma

Questions Answered by Advocate Siddhant Sharma

Q: What to do if wife is not agreeing for Mutual Divorce

I m 38 yr old and 10 yr married Hindu punjabi guy having no child from this marriage. Hv tried utmost to continue but fed up with regular quarrel and tried to suicide too. And now decided to get separated instead of harming self as wife not ready for mutual divorce and mine parents forcing me to continue with her for sake to maintain status in society and relatives. I did and live for 10 yrs according to parents in such way now either I Hv to finish mine life or need solution.. is living separated in any hostel is solution where I can file divorce petition one or two yr later if separate living

Advocate Siddhant Sharma answered
If your wife is not agreeing to a mutual divorce and you are looking to get rid of your wife without divorce, you may consider pursuing a legal recourse called judicial separation under the Hindu Marriage Act, 1955. Judicial separation allows for a formal separation between spouses without terminating the marriage. Here's how you can proceed:Grounds for Judicial Separation: In your case, you can seek judicial separation on the ground of cruelty. The Hindu Marriage Act recognizes cruelty as a valid ground for obtaining a judicial separation under Section 10 of the Act. Cruelty can include physical or mental harm that makes it difficult to continue living together as a married couple. Seek the guidance of an experienced family lawyer who can assist you throughout the process starting with filing the petition.Filing a Petition: Your lawyer will help you prepare a petition for judicial separation, which should include details of the cruelty suffered and the specific incidents that demonstrate it. The petition is filed before the appropriate family court that has jurisdiction over your case.Court Proceedings: The court will examine the petition and may provide an opportunity for reconciliation or settlement discussions between you and your spouse. If reconciliation fails or is not possible, the court will proceed with the judicial separation proceedings.Decree of Judicial Separation: If the court is satisfied that the ground of cruelty has been established, it may grant a decree of judicial separation. This decree legally recognizes your separation, and you and your wife will no longer be obligated to live together as husband and wife.It's important to note that a decree of judicial separation does not dissolve the marriage. Both spouses remain legally married, and certain marital rights and obligations, such as inheritance rights, may still apply. If you later decide to seek a divorce, you can do so by filing a separate petition based on the grounds available under the Hindu Marriage Act.

Q: What the procedure for divorce after 1 year of marriage?

What is the procedure for Divorce? My friend got married a year back. Now they want a Divorce. I want to know the procedure and all options available.

Advocate Siddhant Sharma answered
In India, divorce procedures are governed by the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and the Indian Divorce Act, 1869, depending on the religious or personal law applicable to the parties involved. The procedure for divorce in India can be broadly categorized into two types: mutual divorce and contested divorce.Mutual Divorce:Mutual divorce is an amicable separation where both parties agree to dissolve their marriage. The procedure for mutual divorce typically involves the following steps:a. Petition: Both spouses jointly file a petition before the appropriate family court stating their mutual consent to divorce. They must state the reasons for seeking divorce and provide details about their marriage, children (if any), and any settlements reached regarding alimony, child custody, or property distribution.b. Cooling-off period: After filing the petition, the court usually grants a mandatory "cooling-off" period of six months. This period allows for reconciliation or reconsideration by the spouses.c. Second Motion: After the cooling-off period, both spouses appear before the court again to reconfirm their desire for divorce. They submit affidavits stating that they have lived separately for the required period and have mutually agreed on all terms.d. Decree of Divorce: If the court is satisfied with the grounds and the settlement terms, it grants a decree of divorce, officially ending the marriage.Contested Divorce:A contested divorce occurs when one spouse disagrees with the divorce or the terms proposed by the other spouse. The procedure for contested divorce may vary depending on the specific circumstances, but the general steps involved are as follows:a. Filing a Petition: The spouse seeking a divorce (the petitioner) files a divorce petition before the family court, stating the grounds for divorce. The petitioner must provide evidence and documentation supporting their claims.b. Service of Summons: The court serves a copy of the divorce petition to the other spouse (the respondent), who then has the opportunity to respond and present their case.c. Trial: The court conducts hearings where both parties present their arguments, evidence, and witnesses. The court may also consider factors like child custody, alimony, and property distribution during the trial.d. Decree of Divorce: If the court is convinced that the grounds for divorce are valid, it grants a decree of divorce. The court may also decide on matters such as child custody, alimony, and property division, based on the evidence and applicable laws.In divorce cases filed after one year of marriage in India, the concept of permanent alimony may come into play. Permanent alimony refers to the ongoing financial support provided by one spouse to the other after divorce. The court considers factors such as income, standard of living, age, health, duration of marriage, financial needs, and child custody when determining the amount and duration of permanent alimony after 1 year of marriage. It's important to note that the court has the discretion to decide the amount and duration of permanent alimony based on the specific circumstances of each case. The final decision depends on the judge's interpretation of the law and the evidence presented during the divorce proceedings.

Q: To prove infidelity what all admissible evidence to gather?

My husband is having an affair and I am sure about it. To prove infidelity in the court as a ground for divorce, what all are the evidences / proofs that I can get that are admissible in the court?

Advocate Siddhant Sharma answered
Adultery is recognized as a ground for divorce under the Hindu Marriage Act, 1955, and other personal laws applicable to different religions. To prove adultery in court, it typically requires presenting sufficient evidence. Following are some examples of proof of adultery for divorce in India:Direct evidence: Direct evidence refers to proof that directly demonstrates the occurrence of adultery. This can include photographs, videos, or eyewitness testimony that provide clear and undeniable proof of the spouse's extramarital relationship.Circumstantial evidence: Circumstantial evidence is evidence that indirectly suggests the occurrence of adultery based on surrounding circumstances. It can include things like hotel receipts, text messages, emails, or other forms of communication that imply an intimate relationship between the spouse and the alleged third party.Private detective reports: Hiring a private investigator to gather evidence of adultery is a common approach. Their reports, photographs, and surveillance footage can potentially be used as evidence in court, provided they were obtained legally.Confessions or admissions: If the spouse has admitted to the affair either in writing or verbally, their confession can serve as evidence of adultery.

Q: procedure to remarry the same person after getting a divorce decree

I wanted to know the procedure of remarrying the same person after getting a valid divorce decree from the court.

Advocate Siddhant Sharma answered
The procedure for remarriage after divorce with the same person in India varies in the context of Hindu marriage, Muslim marriage, and the Special Marriage Act. An explanation of the same is as follows:Under Hindu Marriage Act, once you have obtained a valid divorce decree under the Hindu Marriage Act, there is no specific waiting period or legal requirement for remarrying the same person. To remarry, both parties should be of marriageable age, they need to consent to such marriage and should not be within prohibited degrees of relationship of each other. The couple can choose to solemnize the marriage through religious rituals or opt for a court marriage under the Special Marriage Act.In Muslim Personal Law, the process of remarrying the same person after divorce is governed by the practice of Nikah Halala. If a Muslim woman wishes to remarry her ex-husband, she must marry a third person and consummate that marriage. After the consummation, the third person should divorce the woman, which will enable her to remarry her former husband. It's important to note that Nikah Halala is a controversial practice and its legality is a subject of debate.Under the Special Marriage Act which is the law governing inter-faith marriages in India, both parties need to complete the necessary formalities to remarry each other after obtaining a divorce decree. The couple must submit the prescribed forms, along with affidavits from both parties and witnesses, to the Marriage Registrar. The Registrar will issue a notice of intended marriage, which remains posted for a specified period (usually 30 days) to allow for any objections. If no objections are raised during the notice period, the couple can proceed with the marriage ceremony on a scheduled date.

Q: What should I do if husband is impotent and physically abuses me?

How can I get justice from a husband who is impotent and physically abuses me? We got married 3 months back. I came to know that he is impotent after a month of marriage. He even threw hot milk on my face and I got burnt. I’ve got all medical proofs and video recordings with me.

Rs. 11 to 15 lacs were spent on our marriage. I want all my money back. My husband is also forcing me to sleep with his brother and his father.

I want to get out this. What should I do.

Advocate Siddhant Sharma answered
It is tragic to hear what you have been going through. It's important that you prioritize your safety and well-being. Here are some steps you can consider taking:1. Counselling and support services: Reach out to organizations, NGOs, or helplines that provide support to survivors of domestic violence. They can offer counselling, emotional support, and guidance on legal options. Some organizations also provide shelter and safe accommodation for women in need.2. Medical assistance and documentation: Seek medical assistance for any injuries you have sustained. Medical professionals can provide treatment, document your injuries, and issue medical certificates that can be used as evidence in legal proceedings.3. Protection under the DV Act: The Protection of Women from Domestic Violence Act, 2005, provides protection and remedies to women facing domestic violence. It defines domestic violence broadly to include physical, sexual, verbal, emotional, and economic abuse. You can file a complaint under this Act and seek remedies such as protection orders, residence orders, or monetary relief. If you fear for your safety, you can approach the court to obtain a protection order under this Act. This can prohibit your husband from contacting or approaching you, and he may be required to stay a certain distance away from you.4. Prosecution under IPC: Since you have experienced sexual abuse or physical violence, you can also consider filing an FIR with the police under Section 498A Indian Penal Code, 1860 which prescribes punishment for the offence of cruelty. Provide the authorities with any evidence you have, such as medical records, photographs of injuries, or video recordings. They can initiate an investigation and take appropriate legal action against your husband.5. Civil action for nullity/dissolution of marriage: If at the time of the marriage, either party is incapable of consummating the marriage due to impotence, it can be a valid ground for seeking a decree of nullity. If you have evidence to establish that your husband was impotent at the time of the marriage and it prevented the consummation of the marriage, you may consider filing a petition for a decree of nullity under Section 12(1)(a) of the Hindu Marriage Act, 1955. Basis your circumstances, you can also seek divorce from your husband on the ground of cruelty under Section 13(1)(ia) of the Act. In your main petition claiming nullity of marriage on ground of impotency, or dissolution of marriage on ground of cruelty, you can also seek an ancillary relief of permanent alimony wherein you can ask for a lump sum payment of maintenance. It will be worthwhile for you to know that if the wife seeks a divorce or nullity as the case may be and can demonstrate a need for financial support, the court may consider awarding maintenance to her from the husband. This is done to ensure that the financial interests of both parties are adequately addressed, especially when there is a significant disparity in their respective financial situations.