Staying separately since 1.5 yrs. I want divorce but wife doesn't.

I have been married for 16 years and have 2 children - 13 and 8 years old. All these years I and wife have not got along well at all and have been in constant tension and fights. My wife is very temperamental and abusive. She would create public scenes at a drop of a hat.

She has been fighting with my parents and relatives and has thrown out my widow 65 years old widow mother out of the house. We have been living in separate houses since 1.5 years. Kids stay with her.

I desperately want a divorce while she does not. I am ready to give her all properties and money. How do I proceed?

Answers (1)

318 votes

The divorce laws depend upon the religion of the person. Assuming you are Hindus, you will be governed by Hindu Marriage Act. 

Section 13 of the Hindu Marriage Act provides the various grounds on which divorce can be sought by one of the parties to a marriage. It is as follows: 

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.

Now based on the facts provided by you, you can file a petition for divorce under Section 13(1) (ia) on the grounds of cruelty. Cruelty has been interpreted by the Hon'ble Supreme Court to include both physical as well as mental cruelty. The acts of your wife enumerated by you clearly come within the ambit of mental cruelty. Divorce can be sought on this ground.

The fact that you both have been staying separately for past 1.5 years can be brought to the notice of the Court and divorce can also be sought on the grounds of "irretrievable breakdown of marriage". This ground has not yet been brought within the purview of the Act (the Amendment is still pending), however the Courts have the power to look into this aspect and grant a divorce.

You shall be liable to pay alimony / maintenance to your wife which the Court shall decide based on the facts and circumstances.

You shall also need to file a petition for the custody of the children if you wish to retain the same. The Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or unmarried girl is the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. 

We suggest that you should engage an Advocate and file the petition for Divorce and for the custody of your children.

Kindly contact us for any further details and action.

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