How to Divorce my Husband / Wife

In case of a divorce, either husband/ wife can file for divorce but only on specific grounds. While filing for divorce , the husband/ wife has to state the reason behind the decision. There are various grounds indicated by the law that can be used as grounds for divorce either by the husband/ wife.

Filing for divorce can be a devastating process, especially since it involves the future of many lives. It's important to conduct research to make sure the procedure happens smoothly and you're satisfied with the outcome. The article has been written for Hindu marriages covered by the Hindu Marriage Act 1955. In case things are not too good between husband/ wife, and either the husband or wife has decided to part ways legally, we list down the options you have to file for a Divorce under the Hindu Marriage Act 1955.
 

Both Husband and Wife Mutually want a Divorce

Mutual Consent Divorce between Hindu Couples is governed by The Hindu Marriage Act, 1955, under Section 13B. Which states that.- A petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to marriage together, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Secondly, on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
 

One Spouse wants Divorce but the other is Unwilling

If you are married under the Hindu Marriage Act, 1955, you have several grounds for divorce provided by the law itself. Here we are discussing all the grounds mentioned in Section 13 of the Act that you can base your case for divorcing your partner.

You can file for divorce in the following scenarios:

a) If he/she has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive

b) If the husband/ wife has after the marriage had voluntary sexual intercourse with any other person

c) If the husband/ wife is treating you cruelly

d) If the husband/ wife has deserted you for a continuous period of not less than two years immediately preceding the presentation of the petition

e) If the husband/ wife has ceased to be a Hindu by conversion to another religion

f) If the husband/ wife is suffering from the incurably unsound mind or has been continuously or intermittently from a mental disorder that you cannot reasonably be expected to live with such a person

g) If your husband/wife is suffering from a virulent and incurable form of leprosy

h) If the husband/ wife is suffering from venereal disease in a communicable form

i) If your husband/wife has renounced the world by entering any religious order
 

Some Additional Grounds Available for Divorce

The above-mentioned grounds are available for both husband and wife however, there are some additional grounds that are available only for a wife For instance, if your husband has been found guilty of rape, sodomy, or bestiality, you can ask for a divorce. Similarly, if your marriage whether consummated or not was solemnized before you attained the age of 15 years, and you want to divorce, you can do so.
 

Where to File a Divorce Petition?

The divorce petition may be filed at the family court which has jurisdiction over your matrimonial home, i.e. the home where you stay / last stayed as husband and wife after your wedding, or at the family court at the place where the marriage had taken place. Women can file the petition either in the family court that has jurisdiction over the place the matrimonial home is located or the family court of the locality where she is residing at the time of filing of the petition.
 

Documents required for Filing a Divorce Petition

Some Documents that you may require for filing a Divorce Petition are stated below:

• Address proof of husband

• Address proof of wife

• Marriage certificate of the spouse

• Four passport-size photographs of the marriage of both the husband and wife

• Evidence proves spouses are living separately for more than a year, for mutual divorce.

• Evidence relating to the failed attempts of reconciliation.

• Income tax statements for the last 2-3 years

• Details of the profession and present remuneration

• Information relating to family background

• Details of properties and other assets owned by the petitioner
   

Decide the Outcome you Want to have from a Divorce

Divorce can take many forms. In some cases, it is amicable and relatively easy to bring about, but it can also get very complicated. What kind of divorce will bring about the results you want? Consider the following variables:

- Do you own property or other assets with your spouse that you plan to divide?

- Do you have children with your spouse, and will you be seeking custody?

- If you are seeking custody, will you also seek child support from your spouse?

- Consider creating a divorce mission statement so that you can clearly outline your goals and desires.
 

Finding the Right Lawyer to File your Divorce Petition

Irrespective of the kind of divorce you wish to proceed with (Mutual or Contested), it's important to have a competent lawyer represent/guide you with the nuances of the divorce procedure. Schedule a consultation with an experienced divorce lawyer . You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers. Even seemingly straightforward divorces can end up getting complicated, and a divorce lawyer can answer specific questions about your circumstances. Even if you end up representing yourself, one-hour consultation with a lawyer will help you prepare better.

- Be prepared to talk about your goals and desired outcome.

- Bring the documentation you gathered on your assets and debts.

- Have a list of questions that are specific to your situation ready to ask the lawyer.
 

FAQs: How to Divorce my Husband / Wife

Q. Can a husband ask his wife to leave his house?
A. No, a husband cannot ask his wife to leave his house unless any such order has been passed by a competent authority.

Q. What are the wife's rights on her husband's salary?
A. The rights of the wife over her husband's salary include the right to seek maintenance, which can include a portion of the husband's income.

Q. What percentage of a husband's salary can a wife claim?
A. A wife can claim a minimum of 25% of her husband's income as maintenance. However, the percentage depends on various factors like the incomes of husband and wife and the lifestyle.

Q. What are the grounds for divorce?
A. Common grounds for divorce include adultery, abuse, desertion, consented separation for over 2 years, or unilateral separation for over 5 years. According to the Hindu Marriage Act, cruelty, conversion, mental disorder, diseases, renunciation, and specific instances like rape or bestiality constitute valid grounds for divorce, especially for women. In Muslim laws, these grounds include Talaq-e-tafweed, Khula, husband's imprisonment, failure to provide maintenance, cruelty, and others.

Q. Can I block my husband during divorce?
A. Communication during divorce is crucial for discussing property division, child custody, and other aspects. However, in cases of abuse, courts may grant protection orders limiting contact. Prioritize safety and seek help if feeling threatened.

Q. What are the rights of the husband in a divorce case?
A. The husband has the right to initiate divorce proceedings based on grounds such as cruelty, desertion, adultery, and more. A husband can have the right to refuse maintenance under certain circumstances, like adultery or higher earnings of the wife. Additionally, the husband also has the right to get child custody if the wife's actions affect the welfare of the child.

Q. Can a wife live in her husband's house during divorce?
A. Yes, a wife can live in her husband's house during divorce. A husband cannot ask his wife to leave the house until the divorce is concluded. Once the divorce is concluded, she may seek maintenance but not property on mere grounds of being a wife.

Q. Can a wife claim the husband's property after divorce?
A. Yes, if the property is jointly purchased and the wife can prove her contribution, she may claim her share. Certain laws like the Muslim Women (Protection of Rights on Divorce) Act also provide specific rights to the wife.

Q. What constitutes a wife's “ stridhan” ?
A. Stridhan comprises gifts and other assets that a wife receives from in-laws, like cash, jewellery, etc. The wife retains sole ownership over her stridhan, even after divorce, unless the husband has contributed to its purchase.

Q. Is it compulsory to pay the wife after divorce?
A. No, it is not compulsory to pay the wife after divorce. Unless any such order has been passed from the court, a husband is not bound to pay any amount to his wife. Such an amount is known as alimony and is granted if either the husband or wife cannot self-sustain without financial support from the other.

Q. Can a court force a husband to stay with his wife?
A. No, a court cannot force a husband to stay with his wife against his will. If one party refuses such reconciliation, despite a court decree, then divorce or interim separation can be sought.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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