What is the procedure for divorce without mutual consent?
I want to know the procedure for divorce without mutual consent. I have been married for 4 to 5 years. There is no mutual understanding. My wife is not ready to take a divorce.
What can I do?
In case your spouse is not ready for the mutual divorce, then you can file a petition under any of the grounds mentioned under Section 13(1) of the Hindu Marriage Act. The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.
1. Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
2. Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty.
3. Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
4. Conversion – In case, either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
5. Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.
6. Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
7. Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
8. Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
9. Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.
10. No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.
If any of the above grounds for Divorce can be established, you may file for a Divorce petition in the concerned family court through a competent lawyer.
On the other hand, if your spouse and you both agree to a Divorce on amicable grounds, and assuming you both are Hindus, Mutual Divorce is recognized under Section 13B of the Hindu Marriage Act.
Section 13B states that the parties can jointly move a petition for dissolution of marriage by a decree of divorce in the District Court 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.
The Court shall then record the joint statement of the Parties and pass a First Motion Order giving time of 6 month to the parties to resolve their dispute, however in case the parties are unable to resolve the issues within the stipulated time, the Court shall pass a decree of Divorce. So therefore, divorce by mutual consent takes about 6-7 months.
The general rule is the divorce by mutual consent is filled by both parties jointly and their joint statement is recorded in the court which is signed by both in presence of their lawyers and the Family District Judge. This process is repeated twice once when the joint petition id filled also called first motion and after six months, which is referred as second motion.
After this process is complete, Judge is satisfied of the consent of both for divorce all issues like custody of child if any, permanent alimony and maintenance, issue relating to return of stridhan of the wife and settlement of jointly owned properties, divorce is granted.
You should enter into a Settlement Agreement with your wife with respect to the terms and conditions of the divorce. This should specify the distribution of assets such as stridhan etc., maintenance/alimony payable by you post divorce, that this amount would be a full and final payment and no party shall have any other rights as against the other party. And get this Agreement signed by 2 witnesses.
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