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What to do if wife is not agreeing for Mutual Divorce
04-Nov-2023 (In Divorce Law)
I m 38 yr old and 10 yr married Hindu punjabi guy having no child from this marriage. Hv tried utmost to continue but fed up with regular quarrel and tried to suicide too. And now decided to get separated instead of harming self as wife not ready for mutual divorce and mine parents forcing me to continue with her for sake to maintain status in society and relatives. I did and live for 10 yrs according to parents in such way now either I Hv to finish mine life or need solution.. is living separated in any hostel is solution where I can file divorce petition one or two yr later if separate living
Under the Hindu Marriage Act (HMA), 1955, the husband and the wife have been given the option to file for a mutual consent divorce. However, if your spouse is not agreeing to mutual consent divorce, you may file a divorce petition on the ground of cruelty provided under Section 13(1) of the Hindu Marriage Act, 1955.
The conduct claimed to be cruelty in the divorce petition must be grave enough to prove that it is not reasonable for the spouse who files the petition to continue the marriage. It must be a conduct more serious than the day-to-day quarrels of married life.
It is not essential for only physical cruelty to be present for filing a divorce petition. Mental cruelty is ground enough. Mental cruelty includes using verbal abuse, which leads to the constant mental disturbance of the petitioner.
1. Filing Petition:
To file for a Divorce Petition, the petitioner may approach the concerned family court. Any of the aggrieved partners are free to approach the court and file for Divorce Petition in the court of appropriate jurisdiction on any of the grounds mentioned above. The petition must be filed along with affidavits, vakalatnama, and other relevant documents.
2. Summons:
The summons must be served on the contesting parties. The respondent has to appear before the Judge of the family court. After the notice or summons is sent to the parties, the court may also suggest the parties to mediation.
3. Responding to the Petition:
Response to petition is given by the party who wishes to contest the divorce by accepting or rejecting the points as stated in the petition.
4. Trial:
Once both the parties have stated their grounds through the petition and the response, the court hears both the parties and their evidence and witnesses.
5. Temporary or Interim Orders:
The next step is the interim or the temporary order which is passed by the court. These may be related to child custody, alimony, or maintenance, etc.
6. Final Order:
Lastly, the court pronounces the final order dissolving the marriage after which the court proceedings will come to an end.
Cruelty as a Ground for Divorce
Not every matrimonial conduct that annoys the spouse can amount to cruelty. Mere irritations or quarrels between spouses are not cruelty. In matrimonial life, cruelty can be both subtle and glaring. It may either be violent or non-violent and constitute both words and gestures.The conduct claimed to be cruelty in the divorce petition must be grave enough to prove that it is not reasonable for the spouse who files the petition to continue the marriage. It must be a conduct more serious than the day-to-day quarrels of married life.
It is not essential for only physical cruelty to be present for filing a divorce petition. Mental cruelty is ground enough. Mental cruelty includes using verbal abuse, which leads to the constant mental disturbance of the petitioner.
Other Grounds for Divorce under Section 13(1)
- Adultery: If the spouse engages in any form of sexual relationship, which includes sexual intercourse, it shall be a valid ground for divorce.
- Desertion: Voluntarily abandoning your spouse for not less than 2 years is known as desertion.
- Conversion: If the spouse converts into another religion, the other spouse may file a divorce petition based on this ground.
- Mental Disorder: If the spouse suffers from incurable mental disorder or insanity, which results in difficulty for the couple to stay together, the petitioner may file a divorce.
- Leprosy: A divorce petition can be filed by the spouse in the case of a ‘virulent and incurable' form of leprosy of the other spouse
- Venereal Disease: In case one of the spouses suffers from a serious disease that can be communicated easily, the other spouse may file a divorce.
- Renunciation: A spouse has the option to file a divorce petition if the other embraces a religious order and renounces all worldly affairs.
Procedure to File for Divorce
1. Filing Petition:To file for a Divorce Petition, the petitioner may approach the concerned family court. Any of the aggrieved partners are free to approach the court and file for Divorce Petition in the court of appropriate jurisdiction on any of the grounds mentioned above. The petition must be filed along with affidavits, vakalatnama, and other relevant documents.
2. Summons:
The summons must be served on the contesting parties. The respondent has to appear before the Judge of the family court. After the notice or summons is sent to the parties, the court may also suggest the parties to mediation.
3. Responding to the Petition:
Response to petition is given by the party who wishes to contest the divorce by accepting or rejecting the points as stated in the petition.
4. Trial:
Once both the parties have stated their grounds through the petition and the response, the court hears both the parties and their evidence and witnesses.
5. Temporary or Interim Orders:
The next step is the interim or the temporary order which is passed by the court. These may be related to child custody, alimony, or maintenance, etc.
6. Final Order:
Lastly, the court pronounces the final order dissolving the marriage after which the court proceedings will come to an end.
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Adv. Sudershani Ray
Delhi | 200+ Answers
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Can a husband get divorce if wife refuses?
Even if the other spouse is unwilling to divorce, one can still seek divorce. It is a Contested divorce and the petition can be filed at the Court with appropriate jurisdiction. You do not require the consent of your partner to file a Divorce petition in the appropriate court. 07-Jul-2023
Can a husband refuse to divorce his wife?
You should know that you cannot stop a divorce by simply ignoring the situation. Legally, a person can still seek a separation even if the other party isnt in favour. The process can become more complex if the divorce is contested and the spouse refusing to cooperate. 07-Aug-2023
What if my spouse wants a divorce but I don t?
You have limited options if you do not want to divorce, but your partner does. You can try to work through the issues together, or you could consider marriage counseling. It's important to not be uncooperative in a legal sense.
What if my wife will not accept divorce?
You can ask the judge to grant divorce by default if your spouse does not answer your divorce petition by the deadline or refuses to respond. The judge can grant your divorce petition's requests in a default judgement. 10-Mar-2022
If your wife is not agreeing to a mutual divorce and you are looking to get rid of your wife without divorce, you may consider pursuing a legal recourse called judicial separation under the Hindu Marriage Act, 1955. Judicial separation allows for a formal separation between spouses without terminating the marriage. Here's how you can proceed:
Grounds for Judicial Separation: In your case, you can seek judicial separation on the ground of cruelty. The Hindu Marriage Act recognizes cruelty as a valid ground for obtaining a judicial separation under Section 10 of the Act. Cruelty can include physical or mental harm that makes it difficult to continue living together as a married couple. Seek the guidance of an experienced family lawyer who can assist you throughout the process starting with filing the petition.
Filing a Petition: Your lawyer will help you prepare a petition for judicial separation, which should include details of the cruelty suffered and the specific incidents that demonstrate it. The petition is filed before the appropriate family court that has jurisdiction over your case.
Court Proceedings: The court will examine the petition and may provide an opportunity for reconciliation or settlement discussions between you and your spouse. If reconciliation fails or is not possible, the court will proceed with the judicial separation proceedings.
Decree of Judicial Separation: If the court is satisfied that the ground of cruelty has been established, it may grant a decree of judicial separation. This decree legally recognizes your separation, and you and your wife will no longer be obligated to live together as husband and wife.
It's important to note that a decree of judicial separation does not dissolve the marriage. Both spouses remain legally married, and certain marital rights and obligations, such as inheritance rights, may still apply. If you later decide to seek a divorce, you can do so by filing a separate petition based on the grounds available under the Hindu Marriage Act.
Grounds for Judicial Separation: In your case, you can seek judicial separation on the ground of cruelty. The Hindu Marriage Act recognizes cruelty as a valid ground for obtaining a judicial separation under Section 10 of the Act. Cruelty can include physical or mental harm that makes it difficult to continue living together as a married couple. Seek the guidance of an experienced family lawyer who can assist you throughout the process starting with filing the petition.
Filing a Petition: Your lawyer will help you prepare a petition for judicial separation, which should include details of the cruelty suffered and the specific incidents that demonstrate it. The petition is filed before the appropriate family court that has jurisdiction over your case.
Court Proceedings: The court will examine the petition and may provide an opportunity for reconciliation or settlement discussions between you and your spouse. If reconciliation fails or is not possible, the court will proceed with the judicial separation proceedings.
Decree of Judicial Separation: If the court is satisfied that the ground of cruelty has been established, it may grant a decree of judicial separation. This decree legally recognizes your separation, and you and your wife will no longer be obligated to live together as husband and wife.
It's important to note that a decree of judicial separation does not dissolve the marriage. Both spouses remain legally married, and certain marital rights and obligations, such as inheritance rights, may still apply. If you later decide to seek a divorce, you can do so by filing a separate petition based on the grounds available under the Hindu Marriage Act.
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Adv. Siddhant Sharma
Delhi | 500+ Answers
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Dear client,
Since your wife is not agreeing for mutual divorce and you have quarrels and have attempted suicide also, you can file a divorce petition on the ground of cruelty. As per the law governing the field, you can straight away file the divorce petition as you have been married for 10 yrs and the law says that the divorce petition can be filed only after a year has elapsed since the date of marriage.
If you live separately then it will become a ground of divorce for your wife and she can file a petition for divorce on the ground of desertion. Desertion means that you have wilfully left the company of your wife and also neglected her, which I strongly feel is not way you should proceed. You should take your stand boldly and instead of living separately in a hostel, file for divorce on the ground of cruelty.
PS:- But your wife, for her safe side, can file counter cases of dowry, domestic violence, maintenance, etc. since it has become a norm these days just to put pressure on the husband and his family . To be on the safer side, you need to prepare yourself mentally and keep your defences ready. However, there is no straitjacket formula for the same and depends on the facts and circumstances of each case. For proceeding further and for any/further query, please feel free to contact.
Since your wife is not agreeing for mutual divorce and you have quarrels and have attempted suicide also, you can file a divorce petition on the ground of cruelty. As per the law governing the field, you can straight away file the divorce petition as you have been married for 10 yrs and the law says that the divorce petition can be filed only after a year has elapsed since the date of marriage.
If you live separately then it will become a ground of divorce for your wife and she can file a petition for divorce on the ground of desertion. Desertion means that you have wilfully left the company of your wife and also neglected her, which I strongly feel is not way you should proceed. You should take your stand boldly and instead of living separately in a hostel, file for divorce on the ground of cruelty.
PS:- But your wife, for her safe side, can file counter cases of dowry, domestic violence, maintenance, etc. since it has become a norm these days just to put pressure on the husband and his family . To be on the safer side, you need to prepare yourself mentally and keep your defences ready. However, there is no straitjacket formula for the same and depends on the facts and circumstances of each case. For proceeding further and for any/further query, please feel free to contact.
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Adv. Vritant Dua
Delhi | 25+ Answers
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Cruelty is the main ground to seek divorce as defined under ‘Sec 13(1) (i-a)’ of ‘The Hindu Marriage Act, 1955’ and party who is filing a case must prove that living between husband and wife became impossible.
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Hi, there is no need to harm yourself. If she is not ready for a mutual consent divorce and its even not possible for you to continue anymore, then you can file a petition for Divorce in the Court and you will have to contest the same in the Court. There are two ways of getting a divorce in the Hindu Marriage Act. One is when there is mutual consent and the other when a party has to contest on various grounds that are mentioned like Cruelty, desertion, etc.
And you can file this immediately now as for divorce there is no need to stay separately for any particular time.
So don’t worry you can easily file for divorce.
And you can file this immediately now as for divorce there is no need to stay separately for any particular time.
So don’t worry you can easily file for divorce.
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Adv. Mayank Mishra
Delhi | 25+ Answers
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to get divorce on the ground of desertion 2 years separation is required...but you can file divorce on the ground of cruelty also..and are good chances of getting divorce in you case..suicide is not a solution of any problem
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Adv. Kamal Katyan
Delhi | 25+ Answers
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Greetings
if he sends any legal notice, reply to legal notice.
if he sends court summons, attend the court and contest the case .
case will be decided on merits and proofs according to law .
Warm Regards
Mohammed Qutubuddin
if he sends any legal notice, reply to legal notice.
if he sends court summons, attend the court and contest the case .
case will be decided on merits and proofs according to law .
Warm Regards
Mohammed Qutubuddin
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Adv. MD. Qutubuddin
Hyderabad | 100+ Answers
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You can file divorce case any time if you are not happy in your relation there is no any need for live separately from your partner and if your partner is not agree for mutual divorce then don't worry court will provide you decision on the basis of merit of your petition.
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Adv. Pankaj Agarwal
Delhi | 25+ Answers
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A divorce lawyer will file a contested dissolution of marriage if the wife refuses to grant a divorce. A contested divorce is more stressful than a mutual one. Divorce is either mutual or contested. Contested divorce occurs when the wife denies divorce.
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Adv. Chikirsha Mohanty
Delhi | 200+ AnswersCONTACT NOW
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.
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Ravi
I m married for the 2nd time & i didn't knew that my wife cannot conceive as she got her family planning operation done. Their family did not tell us anything about it. Can I file for divorce?
Reply by LawRato
Concealment of family planning operation by your wife may amount to fraud or misrepresentation under Section 12(1)(c) of the Hindu Marriage Act, 1955, which is a ground for annulment of marriage. However, this ground is available only if you have not consummated your marriage with your wife after discovering fraud or misrepresentation. You also have to file a petition for annulment within one year of discovering the fraud or misrepresentation. It is important for you to gather all the relevant evidence and documents that can prove your wife’s concealment and its impact on your marriage.
You may consult a Divorce Lawyer who can advise you on the best course of action based on your specific circumstances and prepare you to face any counter-allegations or defences that your wife may raise against you in court. You can do that by clicking on the link below.
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ALOK PATIL
My Sister married she want to take divorce from husband he having HIV and STD before marriage he doesn't told us so how can we apply for divorce
Reply by LawRato
Your sister may have two options to end her marriage legally:
- She can file for divorce on the ground of cruelty under the relevant personal law applicable to her. For example, under Section 13(1)(ia) of the Hindu Marriage Act, 1955, cruelty is a valid ground for divorce. She can argue that her husband’s concealment of his HIV and STD status and his exposure of her to the risk of infection amounts to mental and physical cruelty.
- She can file for annulment of marriage on the ground of fraud under the relevant personal law applicable to her. For example, under Section 12(1)(c) of the Hindu Marriage Act, 1955, fraud is a valid ground for annulment of marriage1. She can argue that her husband’s concealment of his HIV and STD status was a material fact that induced her to consent to the marriage and that she would not have married him had she known the truth.
She may also claim maintenance and alimony from her husband depending on her financial situation and his income.
You can consult a Divorce Lawyer who will guide you after understanding the facts of your case better by clicking on the link below.
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