What is the procedure for divorce? Wife medically unfit.


What is the procedure for a Divorce? We have been married for 7 years and we have 2 kids. My wife is a housewife. She is making it difficult for me to live with her. She is medically unfit and she doubts that I have an affair outside.

 

Due to her remaining unwell, I am willing to give her what she wants. I would just want to know the procedure of the Divorce.

 

Answer

 

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 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, your situation can fit under Section 13(1)(iii), however you shall have to adduce evidence so as to prove that your wife is suffering from mental disorder.

 

Furthermore, your situation can also fit 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.”

 

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

 

With respect to the maintenance, you have stated that you are ready to pay her alimony, so either you can speak to her and enter into an MOU coining the terms of divorce or the same shall be decided by the Court while granting divorce.

 

Kindly contact us for any further details and action.

 


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