Divorce case-child protection
AKULA RAJASEKHAR
(Querist) 28 November 2012
This query is : Resolved
Dear Sir,
My wife has cheated me,so we are filed 420 case against her,SO I am going to take divorce with my wife,what is the process? Suppose my wife didnt agree for divorce, then Court will give divorce or not.,if one side agree and another side is refused,then what court will decide?
And i have one year kid also,then how many years my kid under mother protection as per law?I heard some where it is 5 years like that.
Plz let me no.
Regards,
Rajasekhar
ajay sethi
(Expert) 28 November 2012
better to obatin divorce by mutual consent . if wife is not agreeable for divorce then it may take years to get divorce . custody of child is generally given to mother . you can get visitation rights as father
Guest
(Expert) 28 November 2012
Do not suppose anything for court proceedings.
For the rest, I agree to the above opinion of Ld.Ajay Sethi.
prabhakar singh
(Expert) 28 November 2012
Unless you both decide to part mutually only devil knows the time.
In a contested case of divorce you shall need
to prove your allegations made in petition to obtain a decree of divorce.
You have not disclosed the gender of your kid.Normally custody goes to mother.
You wrongly heard it to be 5 years.The decision is taken keeping the welfare of child.
Raj Kumar Makkad
(Expert) 28 November 2012
You have not disclosed about the alleged cheating of your wife without which no one can comment whether that ground is sufficient for you to obtain contested divorce from your wife or not. Rest of the advice has already been given to you.
prabhakar singh
(Expert) 28 November 2012
The following are the grounds on prove of any of them a decree of divorce can be passed:
The Hindu Marriage Act,1955
13. Divorce.-
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
1[(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]
1[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]
1[(ib) 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
2[(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 requires or is susceptible to medical treatment; or]
(iv) has 3[***] been suffering from a virulent and incurable form of leprosy; or
(v) has 3[***] been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vi) 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; 4[***]
5[ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and
its grammatical variations and cognate expressions shall be construed accordingly.]
6[***]
7[(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 7[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 7[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner:
Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 8[bestiality; or]
9[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
10[(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]
Explanation. —This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*.]
State Amendment
Uttar Pradesh:
In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13—
(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following clause, namely:—
“(1a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or”, and
(ii) for clause (viii) (since repealed in the principal Act) substitute (and shall be deemed to have been substituted) following clause, namely:—
“(viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and—
(a) a period of two years has elapsed since the passing of such decree, or
(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or
[ Vide Uttar Pradesh Act 13 of 1962, sec. 2 (w.e.f. 7-11-1962)
V R SHROFF
(Expert) 28 November 2012
MCD IS BEST SOLUTION.
Raj Kumar Makkad
(Expert) 30 November 2012
Nothing to add after going through the grounds mentioned above.
