Can I file for mutual divorce after 2 and a half years of marriage?

See first of all, Divorce by mutual consent can be filed only if both husband and wife consent to the same, you alone cannot file a petition for mutual Divorce.

Section 13 of the Hindu Marriage Act prescribes the various grounds on which divorce can be sough by either of the parties.

Section 13 of the Act has been reproduced below for your better understanding.

Section 13(1) states that a petition may be presented by either the husband or the wife, for dissolution of marriage by a decree of divorce on the ground that the other party:

i.              has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse; or

a.             has, after the solemnization of the marriage, treated the petitioner with cruelty; or

b.             has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

ii.             has ceased to be a Hindu by conversion to another religion; or

iii.            has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.- In this clause,-

a.             the expression" mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

b.             the expression" psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment; or

iv.            has been suffering from a virulent and incurable from of leprosy; or

v.             has been suffering from venereal disease in a communicable from; or

vi.            has renounced the world by entering any religious order; or

vii.           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 it, had that party been alive.

As per our understanding, we feel that your situation falls under Section 13(1)(ia) of the Act.

Furthermore, under Section 13(1)(ia) the term cruelty includes mental as well as physical cruelty. Mental cruelty has been elaborated upon by the Supreme Court of India to include:

“Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.”

As you stated that the she does not take care of you or your family and there is constant fighting, hence you can file a petition for divorce under this Section seeking a decree for divorce in the competent court and for this you need to consult an Advocate who shall draft your petition.

Now with respect to your son, a petition for the custody of the son shall have to be filed in case you want the custody of your son. You may note here that under most circumstances, the custody of an infant child (below 5 years) is given to the mother by the court and you would also be directed by the court to pay the maintenance of the child to your wife in addition to the alimony.

With respect to the alimony, the Court's objective while deciding the alimony is to restore the wife to the condition she was living in while she was married, so based on that you shall be liable to pay alimony to your wife. While deciding this Court will consider your financial position as well.

Kindly contact us for any further details and action, if needed.