Wife ok with divorce but doesn't wish to appear in court. What option?

In Divorce Law

My wife is ok to give me a divorce but says will not appear in the court for any proceedings. We have had a lot of disputes and have a 9 year old son. How do I apply for mutual divorce if she will not appear in the court?

Also, I want the custody of my son. Please advise.

Answers (1)

181 votes

Assuming you are a Hindu, your marriage will be governed by the Hindu Marriage Act 1955. 

Section 13 B of Hindu Marriage Act specifically deals with Divorce by Mutual Consent. Now, coming to procedure of Divorce by Mutual consent, a petition supported with affidavits for divorce should be filed in the district court by both the spouses. 

The husband and the wife, should jointly state to the court that they are unable to live together as they are facing immense difficulties in adjustment. Further, the parties will have to appear in person before the presiding officer of the court, making a statement with regard to the divorce by their free will & consent.

The filing of divorce petition by both the husband and the wife is legally known as the "The First Motion Petition for Mutual Consent Divorce". "The Second Motion Petition for Mutual Consent Divorce" mentioned in the sub-section (2) of Section 13 B is filed when the couple reappears to the court for the second time after a period of six months.

If the judge is satisfied after a hearing from both the husband and wife, the court announces a mutual divorce decree.

In view of above, your wife will have to appear before the court.

Furthermore, with respect to custody of your child, your child is minor and that you need to file a petition for the custody of the children. Section 6 of 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.

In your case, your child is 9 year old, so for appointment of declaration of any person as guardian, the court shall consider the welfare of minor. The welfare of the child is determined neither by the economic affluence nor a deep mental or emotional concern for the well being of the child.

The answer depends on the balancing of all these factors and determining what is best for the child’s total well being and thus there are numerous occasion wherein Supreme Court has allowed father to retain the custody of child. 

Kindly contact us for any further details and action.

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