my sister due to some problems is living apart from her husband for almost 7 months now. She doesnt want a divorce but can her husband file for divorce since they are living away for so long?
i will be greatful if u can answer my following queries--
1)what is the period of seperation required for filing divorce without mutual concent? and what period if its with mutual concent?
2)what can be the other valid reasons for divorce without mutual concent? can u please explain in simple language. and,
3)what does 'cruelty' refer to. does it need to be proved and how can it be proved? specially, in case of emotional pain, does it need to be proved and if yes, how can it be proved?
4) she is suffering from depression. can they use this as ground for divorce?
And finally, if the couple has not lived seperately for enough time then the other reasons like, cruelity, mental disorder alone are enough for filing divorce without concent ?or these reasons have to be accompanied with seperation?
Please reply asap. Thank you.
[font=""tahoma""]1. There is no period of separation for filing a divorce petition other than mutual consent.
2. Ground for divorce in India[/font][font=""tahoma""]
[/font][font=""tahoma""]As per the Hindu Marriage Act, divorce can be obtained on the grounds of Adultery, Cruelty, Desertion for two years, Conversion in Religion, Unsound Mind of Partner, Venereal Disease and/or Leprosy inflicted Partner and Rape, Sodomy or Bestiality by Husband. In case the couple has filed for divorce on any other reason and has not resumed co-habitation for one year after the decree of judicial separation or has not resumed conjugal rights for one year after decree for restitution of conjugal rights, divorce will be granted by the court.
3.[/font][color=""#ff0000""][font=""tahoma""][color=""black""]What is Cruelty? [/color][/font][/color][font=""tahoma""][color=""#ff0000""]
[/color][/font] [font=""tahoma""] Under the English Law, legal concept of cruelty is conduct of such a character as to cause danger to life, limb or health (physical or mental) or as to give rise to a reasonable apprehension of such danger. Before the amendment of the Hindu Marriage Act, which was brought in the year 1976, the rigid meaning and interpretation was given to the ground of cruelty. But even before the amendment, the Supreme Court in Dastane Vs. Dastane, AIR 1975 SC 1534, tried to give a literal meaning to the ground of cruelty applicable in terms of divorce or judicial separation.
[/font] [font=""tahoma""]Though the concept of English Law and the Hindu Marriage Act in terms of cruelty as a ground for divorce or judicial separation is more or less the same, yet the learned Judges in India still hold that marriage is a sacrament taking into consideration the social and cultural conditions of our country.
[/font] [font=""tahoma""]The question whether a particular act or behaviour would amount to cruelty or[/font][font=""tahoma""] not depends upon the character, way of life of the parties, their social and economic conditions, their status, customs and traditions. Each case is to be decided on the facts of its own. The judges and the lawyers should not import their own notions of life while dealing with matrimonial cases.
[/font] [font=""tahoma""]Cruelty is classified into two heads.
1. Physical cruelty and
2. Mental cruelty
[/font] [font=""tahoma""][color=""black""]Physical Cruelty:
[/color][/font] [font=""tahoma""]It is a settled law that physical violence is not necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. Therefore, it goes without saying that the act of cruelty consists of mental torture or physical violence. If it is a physical violence, there will be no problem for a court to arrive at a decision while determining a case presented before it, but in case of mental torture or harassment, the court finds comparatively more difficult to come to final conclusion.
[/font] [font=""tahoma""]Firstly the court begins its enquiry as to the nature of cruel treatment as well as the impact of that treatment in the mind of the spouse. Ultimately it is a matter of inference to be drawn by taking into account of the nature of the conduct and its effect on the complaining spouse.
[/font] [color=""black""][font=""tahoma""]Mental Cruelty:
[/font][/color] [font=""tahoma""] An act of mental cruelty is far more severe and dangerous than an act of physical violence. The eye opener cases of mental cruelty are Mohit Bhatnagar Vs Sangeeta Bhatnagar and Deepak Johri Vs Kum Kum Johri, the case of Mohit Bhatnagar has since been decided by the Matrimonial Court after 7 years of long battle and the case of Deepak Johri is still pending in the High Court of Delhi.
[/font] [font=""tahoma""]Inspite of the fact that the law provides that every matrimonial proceeding should be completed within six months, no serious efforts are made either by the courts or by the advocates to adhere to the time limit. And the reality is that no matrimonial proceedings are completed before five or ten years. This long delay itself is also the cause of mental torture or mental cruelty to all aggrieved parties facing matrimonial proceedings in the courts.
4 & 5. Depression may be a ground for divorce
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