Can i proceed for divorce without asking my husband about it?
I want a Divorce but am not sure if my Husband would agree for the same. It’s been a year that we have been married and it’s my husband’s second marriage. I am being mentally tortured by my husband and my mother-in-law. They don’t give me any money nor do I have any say in matters of home.
We discussed Divorce earlier in January 2014 and he was ready for it but I don't know his decision now. How should I proceed?
We would suggest you to first consult a marriage counselor before taking such a bold step of Divorce. However, if the same fails, then you can either speak to your husband if he is also willing to file for divorce. If yes, then you can file a petition for divorce by mutual consent.
But if he is not willing to do the same, you can file a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act on the grounds of cruelty. The Courts have recognized mental cruelty as well as physical cruelty within the term “cruelty” enshrined in the Act. So you shall have to adduce evidence to prove the incidences of mental 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.”
Regarding torture you haven't elaborate on, what kind of torture they are giving to you is the question. We would suggest you to register a complaint for cruelty under Section 498 A of the Indian Penal Code or for domestic Violence under the Protection of Women from Domestic Violence Act or both.
We would like to specify that the complaint under Indian Penal Code is a Criminal Complaint while the Complaint under Protection of Women from Domestic Violence Act is more of civil nature.
Thereafter, you should file a complaint before the Court praying for Protective Orders, Monetary Relief, Compensation Orders.
Furthermore, you can even claim maintenance under Section 125 of the Code of Criminal Procedure and Section 24 of Hindu Marriage Act.
Kindly contact us for any further details and action.
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