How to Divorce my Husband / Wife

In case of a divorce, either husband/ wife can file for divorce but only on specific grounds. While filing for divorce , the husband/ wife has to state the reason behind the decision. There are various grounds indicated by the law that can be used as grounds for divorce either by the husband/ wife.

Filing for divorce can be a devastating process, especially since it involves the future of many lives. File a divorce petition in the court having jurisdiction over your marriage. It's important to conduct research to make sure the procedure happens smoothly and you're satisfied with the outcome. The article has been written for Hindu marriages covered by the Hindu Marriage Act 1955. In case things are not too good between husband/ wife, and either the husband or wife has decided to part ways legally, we list down the options you have to file for a Divorce under the Hindu Marriage Act 1955.
 

Both Husband and Wife Mutually want a Divorce

Mutual Consent Divorce  between Hindu Couples is governed by The Hindu Marriage Act, 1955, under Section 13B. Which states that a couple can file a joint petition in the district court if both the parties are willing to dissolve their marriage, on the ground that they have lived separately for a year and are unable to cohabit together. This process involves two motions, completion of which most likely result in the court decreeing the divorce. 

One Spouse wants Divorce but the other is Unwilling

Grounds for divorce are provided under the Hindu Marriage Act upon which one sided or contested divorce can be sought in case one party is unwilling to dissolve marriage. Section 13 provides for the aforementioned grounds as stated below:
 

You can file for divorce in the following scenarios:

a. If the person has not been heard of as alive for seven years, or longer.

b. If the husband/wife had voluntary sexual relations with another person following the marriage

c. If your husband/wife is treating you inhumanely or with cruelty

d. If your husband/wife has abandoned you for at least two years in a row immediately prior to the filing of the petition

e. Conversion to another religion

f. The husband/wife is incurably unsound of mind, or has suffered continuously or intermittently with a mental disorder. 

g. If the spouse if suffering from leprosy

h. If the wife/ husband is suffering from a communicable venereal disease

i. If your husband/wife has renounced the world
 

Some Additional Grounds Available for Divorce

The above-mentioned grounds are available for both husband and wife however, there are some additional grounds that are available only for a wife For instance, if your husband has been found guilty of rape, sodomy, or bestiality, you can ask for a divorce. Similarly, if your marriage whether consummated or not was solemnized before you attained the age of 15 years, and you want to divorce, you can do so.
 

Where to File a Divorce Petition?

The divorce petition may be filed at the family court which has jurisdiction over your matrimonial home, i.e. the home where you stay / last stayed as husband and wife after your wedding, or at the family court at the place where the marriage had taken place. Women can file the petition either in the family court that has jurisdiction over the place the matrimonial home is located or the family court of the locality where she is residing at the time of filing of the petition.
 

Decide the Outcome you Want to have from a Divorce

Divorce can take many forms. In some cases, it is amicable and relatively easy to bring about, but it can also get very complicated. What kind of divorce will bring about the results you want? Consider the following variables:

- Do you own property or other assets with your spouse that you plan to divide?

- Do you have children with your spouse, and will you be seeking custody?

- If you are seeking custody, will you also seek child support from your spouse?

- Consider creating a divorce mission statement so that you can clearly outline your goals and desires.
 

FAQs: How to Divorce my Husband / Wife

Q. Can a husband ask his wife to leave his house?
A. No, a husband cannot ask his wife to leave his house unless any such order has been passed by a competent authority.

Q. What are the wife's rights on her husband's salary?
A. The rights of the wife over her husband's salary include the right to seek maintenance, which can include a portion of the husband's income.

Q. What percentage of a husband's salary can a wife claim?
A. A wife can claim a minimum of 25% of her husband's income as maintenance. However, the percentage depends on various factors like the incomes of husband and wife and the lifestyle.

Q. What are the grounds for divorce?
A. Common grounds for divorce include adultery, abuse, desertion, consented separation for over 2 years, or unilateral separation for over 5 years. According to the Hindu Marriage Act, cruelty, conversion, mental disorder, diseases, renunciation, and specific instances like rape or bestiality constitute valid grounds for divorce, especially for women. In Muslim laws, these grounds include Talaq-e-tafweed, Khula, husband's imprisonment, failure to provide maintenance, cruelty, and others.

Q. Can I block my husband during divorce?
A. Communication during divorce is crucial for discussing property division, child custody, and other aspects. However, in cases of abuse, courts may grant protection orders limiting contact. Prioritize safety and seek help if feeling threatened.

Q. What are the rights of the husband in a divorce case?
A. The husband has the right to initiate divorce proceedings based on grounds such as cruelty, desertion, adultery, and more. A husband can have the right to refuse maintenance under certain circumstances, like adultery or higher earnings of the wife. Additionally, the husband also has the right to get child custody if the wife's actions affect the welfare of the child.

Q. Can a wife live in her husband's house during divorce?
A. Yes, a wife can live in her husband's house during divorce. A husband cannot ask his wife to leave the house until the divorce is concluded. Once the divorce is concluded, she may seek maintenance but not property on mere grounds of being a wife.

Q. Can a wife claim the husband's property after divorce?
A. Yes, if the property is jointly purchased and the wife can prove her contribution, she may claim her share. Certain laws like the Muslim Women (Protection of Rights on Divorce) Act also provide specific rights to the wife.

Q. What constitutes a wife's “ stridhan” ?
A. Stridhan comprises gifts and other assets that a wife receives from in-laws, like cash, jewellery, etc. The wife retains sole ownership over her stridhan, even after divorce, unless the husband has contributed to its purchase.

Q. Is it compulsory to pay the wife after divorce?
A. No, it is not compulsory to pay the wife after divorce. Unless any such order has been passed from the court, a husband is not bound to pay any amount to his wife. Such an amount is known as alimony and is granted if either the husband or wife cannot self-sustain without financial support from the other.

Q. Can a court force a husband to stay with his wife?
A. No, a court cannot force a husband to stay with his wife against his will. If one party refuses such reconciliation, despite a court decree, then divorce or interim separation can be sought.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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