Physical violence since marriage. Can i file mutual divorce petition?


My husband beat me up at my mother’s place and left by saying he is ready for a divorce. He has been physically violent since the first day of my 6.5 year old marriage. I tolerated it so far but I can’t take it anymore as it is impacting our 5 year old daughter as well.

 

What legal action can I take against him for the welfare of my child? Can I file a mutual divorce petition and send it to him for his signature as I want to end this as soon as possible?

 

Answer

 

Firstly, 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 and even Custody Orders of your daughter. Furthermore, you can even claim maintenance under Section 125 of the Code of Criminal Procedure.

 

Now with respect to divorce:

 

1. Divorce by mutual consent:

 

Mutual Divorce is recognized under Section 13B of the Hindu Marriage Act.

 

Section 13 B states that the parties can jointly move a petition for dissolution of marriage by a decree of divorce in the District Court on the grounds 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 months 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. Therefore, divorce by mutual consent takes about 6-7 months. 

 

Herein you should enter into an agreement with your husband as to the terms and conditions of the divorce and the amount of maintenance / alimony, stridhan etc.

 

2. Divorce on the grounds of cruelty:

 

You can file a petition for dissolution of marriage on the grounds of cruelty under Section 13(1)(ia) of the Hindu Marriage Act. The Courts have recognized both physical and mental cruelty within the ambit of this provision. You shall have to adduce evidence of torture and harassment and the divorce shall be granted.

 

3. File a separate petition for the custody of your daughter claiming sole custody with maintenance for yourself and your daughter.

 

Kindly contact us for any further details and action.

 


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