Married for 1 year. How do i take divorce from my husband?


I have been married for less than a year and I want to take a Divorce from my husband. This is not a Mutual divorce. He doesn't take care of me and does not even bear my Expenses. I have also been a victim of Domestic Violence here. We do not have a child.

What is the Procedure and how can I go about it?

Answer

Firstly you should register a complaint in the the Police Station or in the Crime Against Women Cell against your husband for the offence of cruelty (both physical and mental) under the Indian Penal Code , 1860 and even for offences under the Protection of women from domestic violence Act.

For Divorce:

There is a statutory bar of 1 year whereby you cannot seek Divorce till the completion of 1 year of your marriage. The only option in such a case is seeking waiver of 1 year on grounds of annulity of marriage. Sections 11 and 12 of the Hindu Marriage Act 1955 cover the annulity of marriage as below:

Section 11 - Void marriages :- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

Section 12 - Voidable marriages :- Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

- that the marriage has not been consummated owing to the impotence of the respondent; or

- that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

- that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

- that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

Further, Section 5 as mentioned above has been detailed out as follows for your understanding:

Basis Of An Annulment


In Section 5 of the Hindu Marriage Act 1955, there are some conditions laid down for a Hindu Marriage which must be fulfilled in case of any marriage between two Hindus which can be solemnized in accordance with the requirements of this Act. 

Section 5 Condition for a Hindu Marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) Neither party has a spouse living at the time of the marriage;
(ii) At the time of the marriage, neither party,-

(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity or epilepsy;

(iii) The bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;

(iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two:
An annulment may be granted when a marriage is automatically void under the law for public policy reasons or voidable by one party when certain requisite elements of the marriage contract were not present at the time of the marriage.

So in case your circumstances suit any of the above mentioned situations, you may move the court for annulment of your marriage before the completion of 1 year of your marriage.

In case you would want to wait for your marriage to complete 1 year, you may then file a petition for dissolution of marriage on the grounds of cruelty both physical and mental recognised under Section 13(1)(ia) of the Hindu Marriage Act. The Courts have recognised both physical and mental cruelty within the ambit of this provision.

With respect to the maintenance, you can file a petition under Section 125 of the Code of Criminal Procedure Code and also under the Protection of Women from domestic Violence Act for maintenance and we would like to highlight that you are legally entitled for maintenance from your husband.


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