quesHow can wife file for divorce if husband is not wiling to divorce her?

How can my friend get a Divorce from her husband if he is not ready to give her a Divorce? My friend had an arranged marriage in July 2007 and she and her husband have an 8 year age difference. Because of that their views do not match.


She has a 4 year old child and they are not living well. They do not want to talk to each other and when they do, they fight most of the time. They do not like each other. She wants to take divorce but her husband does not agree for this.


Please advice how she can take Divorce.


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      Indian legal System prescribes different laws for divorce for people belonging to different religions. Assuming your friend and her husband both are Hindus and are governed by the Hindu Marriage Act, 1955, then your friend can seek divorce from her husband based on the various grounds enumerated in Section 13 of the Act. 


      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 can fit under Section 13(1)(ia).


      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.”


      Therefore the behavior of your friend’s husband towards your friend can easily come within the four walls of this word.


      Now your friend needs to file a petition for divorce under this Section seeking a decree for divorce in the competent court and for this your friend needs to consult an Advocate who shall draft your petition.


      Moreover, we would also like to mention that your friend is eligible to get maintenance (Alimony) under Hindu Marriage Act as well as under Code of Criminal Procedure. A separate Petition needs to be filed for the same.


      Furthermore, as you mentioned that your friend has a 4 year old child, another petition will also need to be filed for the custody of the child. In case your friend gets the custody of the child, she shall also be eligible for claiming maintenance for the child from her husband.


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    • Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at LawRato.com and has been responded by one of the Divorce Lawyers at LawRato.com to address the specific facts and details. You may post your specific query based on your facts and details to get a response from one of the Lawyers at LawRato.com or book a Detailed Consultation with a Lawyer of your choice to address your query in detail.
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