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Sample Questions - Matrimonial Disputes
Q1. My wife again and again insults me before other person and ask me to live beyond my income. She ask me to take loan. I am fed up and I want divorce. Is it not cruelty on me for which I can seek divorce ?
A. Constantly insulting the other spouse and humiliating him in presence of others does amount to cruelty. Requiring the other spouse to live beyond his means in order to enable the matrimonial life to continue and not desisting from extravagances though requested by other spouse can as well amount to cruelty in certain circumstances. Matrimonial life is for homogeneity and companionship. In the course of the same fortunes and limitations of each other have to be shared. To pester the other spouse to live beyond mean and invite indebtedness can hardly to considered as conducive to congenial married life. Persistency in this regard can be termed as lacking in feelings for the welfare, happiness and security of the other spouse. Callous attitude in this behalf can amount to cruelty.
Q2. My wife writes false letters to my superior officers and says that I am having another wife somewhere else. She also does not treat my parents or gives any respect when they come to live in my house. Can I have divorce on such instances?
A. Wife writing defamatory letters imputing adultery to husband, to his official superior, other authorities and colleagues, wife eroding the mental peace of husband by showing callous indifference to husband's parents who were very unwelcome guests to her household. This is cruelty on the part of the wife and you can seek divorce on these grounds under the Hindu Marriage Act, if the marriage is performed according to Hindu rites.
Q3. My marriage was held according to Hindu Rites but was registered under Special Marriage Act. Now my husband does not allow me to have physical relations with him. I am told in such circumstance I can have divorce under Special Marriage Act.
A. Marriage solemnized according to Hindu rites subsequently registered under theSpecial Marriage Act, would not confer upon a spouse the right to annual marriage under s. 25 (I) of the Special Marriage Act. Under s. 25 (I) willful refusal of a respondent spouse to consummate the marriage is a ground for annulling the marriage at the instance of the petitioner. On no such ground a Hindu Marriage under the Hindu Marriage Act could be annulled although impotence at the time of marriage and its being continued till the institution of the proceeding was such a ground.
Q4. I am a 28 year old married girl. My husband harasses me for dowry. What remedy do I have?
A. In this case you can approach D.C.P (Women Cell ) and complain against your husband u/s 498 A of Indian Penal Code. You can also file a divorce petition in a separate Matrimonial Court.
Q5. I am a 32 year old married woman. For two years I am living separately from my husband. My husband has forcibly taken over four year old son with him. The husband is a drunkard and cannot take care of our son. What should I do?
A. You can file an application in the court for custody of her son on the basis of the ground that your husband is a drunkard.
Q6. I am a Hindu Boy and want to marry a Muslim girl . How is it possible?
A. You can get your marriage registered under Special Marriage Act, in case none of you want to change your religion. And in case one of you change your religion then your marriage can be registered under your respective Marriage Acts.
Q7. How long after marriage can a person seek divorce Under Hindu Law?
A. Under Section 14 of the Hindu Marriage Act, 1955, no petition for divorce can be filed within one year of the marriage. But in case the petitioner's case is of exceptional hardship High Court is in empowered to grant leave to file the case before the expiry of one year.
Q8. My friend's husband has left my friend and married another woman. What action can be taken against her husband Under Hindu Law?
A. Under Section 17 of the Hindu Marriage Act, bigamy is punishable u/s 494 & 495 of the Indian Penal Code. Section 494 prescribes for imprisonment, which may extend to 7 years and fine. So a complaint be lodged against the husband with the police.
Q9. Kindly enlighten me on the minimum required age to marry under The Hindu Law?
A. According to Section 5 ( iii) of the Hindu Marriage Act, the bridegroom has to complete 21 years of age and the bride 18 years of age. Any marriage in contravention of this attracts simple imprisonment, which may extend to 15 days or fine, which may extend to Rs.1000/- or with both.
Q10. I got married on 25th Dec. 1997 and since 1st Dec. 1999 my wife left the house and being a working lady she has started staying separately till today. Our Problem is Attitude problem and Result is Clashes. Now we want to file a joint petition for divorce by mutual consent. How should we proceed? How much time will it take for the divorce? When can a person marry again after obtaining a decree of divorce?
A. Divorce by mutual consent can be obtained by Husband and Wife in terms of Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said Section require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further. "Living Separately" has been now defined by the Supreme Court as "not living as husband and wife and not performing marital obligations", even if the husband and wife are living under the same roof. However, since your wife has left the house on 1st December, 1999, you have to plead that she has been living separately for the last more than one year or had not been performing matrimonial obligations for the past one year, even though living under the same roof. A joint petition has to be filed in this regard and after the filing of the same the Court grants a minimum period of six months (and maximum 18 months) for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce can not be granted. Further, apart from the same, before passing a decree of divorce, the court has also to be satisfied that the consent has not been obtained by force, fraud or undue influence. With regard to the re-marriage after divorce, Section 15 of the Hindu Marriage Act, 1955, provides that after a decree of divorce has been granted, in case there is no right of appeal against the decree or if there is a right, the time has expired without an appeal having been presented or if the appeal filed has been dismissed, it shall be lawful for either party to marry again. The period of appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from the date of the decree or order.
Q11. If the wife has left the house of her husband and was living away from him without any reasonable cause, can the husband be entitled to judicial separation or divorce? Is there a time period for filing of divorce petition?
A. In case the wife has left the house of the husband and is living away from him without any reasonable cause, the husband is entitled to judicial separation or divorce. The condition however, is that the desertion of the wife should be for a continuous period of not less than two years, immediately preceding the presentation of the petition for grant of judicial separation or divorce. Thus, in order to entitle you to file a petition for divorce, you would be required to prove that your wife has deserted you without any reasonable cause and has been living separately for a continuous period of two years.
Q12. If the wife has left the house of her husband and was living away from him without any reasonable cause, can the husband be entitled to judicial separation or divorce? Can the daily domestic quarrels between husband and wife entitle either of the two of file a petition for divorce against the other? Can grounds for mental cruelty be pleaded to claim a divorce from the other spouse, even if there is no physical cruelty by the spouse to the other spouse?
A. A Husband is entitled to seek divorce or judicial separation in case the wife is living away from him without any reasonable cause. However, the wife should be living away from the husband for a continuous period of not less than 2 years, before any petition for judicial separation or divorce can be filed. Daily domestic quarrels between husband and wife do not entitle either of the two to file a petition for divorce against the other. It is well established in law that the daily normal wear and tear in matrimonial life does not entitle a spouse to seek divorce. It must be more serious than the ordinary wear and tear of a married life. Mental cruelty can certainly be pleaded to claim divorce from the other spouse even if there is no physical cruelty. The cruelty however should be of such a nature that it causes reasonable apprehension in the mind of the spouse claiming divorce, that it would be harmful and injurious for him /her to live with the other spouse.
Q13. If one of the spouse is not at all ready to give the divorce at any cost, then how much maximum time it can take to get the decree for divorce? I think this is my last question? Please suggest one good lawyer in Delhi?
A. If one of the spouse is not ready to give divorce at any cost , then the remedy for the other spouse is to file a petition for divorce before the court. However, a divorce can only be granted under certain prescribed circumstances under Hindu Law which are described in Section 13 of the Hindu Marriage Act. These grounds include cruelty; desertion; voluntary s*xual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years. The period of time for seeking a divorce decree can really not be specified, because it depends upon a number of circumstances. However, still a general estimate which can be given in an average litigation of such a nature is around 4 to 5 years before the District Court. In so far as your question relating to suggesting a lawyer in Delhi is concerned, we regret that as a matter of principle, we cannot recommend any name to anybody.
Q14. If during the period of six months after the filing of petition for divorce by mutual consent, any on of the parties withdraws the consent, then what options the other party is left with in order to continue to get the decree for divorce? How can one withdraw the consent?
A. Under Section 13-B of the Hindu Marriage Act of 1950, the parties can seek divorce by mutual consent by filing a petition before the court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months where after the party has to again approach the court for making a second motion confirming the mutual consent earlier given in the petitioner filed by them. It is only after this second motion is made that a decree of the divorce is granted by the court. During this period of 6 months when the petition is pending , any of the spouse is fully entitled to withdraw the mutual consent. In such an eventuality no divorce decree can granted by the court. The consent can be withdrawn during this period of 6 months by either of the spouse, by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent. The court is bound under such circumstances not to grant a decree of divorce. There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950 . In such a situation divorce can be granted only on certain specified grounds as mentioned in the said provision . These grounds include cruelty; desertion; voluntary s*xual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.
Q15. Once a joint petition for divorce is filed by mutual consent, is their a way (Legal loopholes /by pass procedure) to get the decree for divorce within 2 months of filing the petition and not after 6 months? If one manages to get the decree for divorce in 2 months ( with the help of some X lawyer at some Y court) then later on, can anyone of husband or wife at any point of time in his/her life appeal against the decree?
A. Although under the provisions of Section 13-B of the Hindu Marriage Act 1950, the requirement is that after the presentation of a petition for divorce by mutual consent, the court has to adjourn the matter for a minimum period of 6 months (and not later than 18 months) where after the parties have to again come back to the court for making s second motion confirming the mutual consent earlier given by them. However, in a number of judgements the courts have held that this period of six months can be waived if the court is convinced that the provisions of the said section have been complied with the and that there in no force, undue influence or coercion exercised by one spouse against the other. The courts are a such granting decree for divorce by mutual consent without waiting for a period of six months specified under the Hindu Marriage Act. Such divorce decree granted prior to the period of 6 months cannot be normally challenged. It is only under vary rare circumstances where it is proved by the spouse that the said mutual consent was not given out of his/her free will or was given under some grave force or threat of life can the said decree for divorce be cancelled. But the same is also applicable to a divorce decree granted by mutual consent after waiting for a period of six months.
Q16. I got married in December 1997. I was a love marriage with the blessings of the relatives from both sides. But unfortunately today we always end up in heated arguments whenever we face each other. We are tired of fighting. Can you suggest contact information of some good matrimonial Counselors in order to ease the process of divorce or reunion? I have read lots of articles in times of India?
A. In the case of any love marriage, the expectations of the spouses are very high from each other. Usually such expectations are not met due to practical aspects and as such the same results in repeated heated arguments between the parties. However, it is always better and advisable to sort out differences by reasoning out said in a cordial manner and with the good wishes and intervention of close friends or family members. It is never advisable to seek divorce in the heat of the moment and repent the same later when the temper have cooled down and one is living separately. The issues leading to heated arguments are generally very small and one can realize this once things are looked at in the broad spectrum. In any case, legally speaking the normal wear and tear in marriage life and the normal quarrels do not entitle either of the spouse to seek divorce against the other. It is only if the cruelty (mental) has reached such a level as to cause reasonable apprehension in the mind of one of the spouses that the same would be injurious for him/her to live with the other, can one seek divorce on the ground of cruelty. If both the parties very strongly feel that is not possible to live together despite all efforts made in this regard , then it is appropriate that divorce be obtained by mutual consent . The conditions for the same are that the spouses should not be living together for at least one year before the presentation of the divorce petition for mutual consent and it is no longer possible for the spouses to live together any longer. In such eventuality the petition has to be presented which is adjourned for a period of six months, after recording the statement of the parties whereafter the parties have to again file a second motion confirming the mutual consent earlier given. This period of 6 months can also be waived under circumstances by the courts. After the second motion has been made and the divorce by mutual consent has been confirmed by the both parties, the divorce decree is granted to the parties. We regret that as a matter of principle we can not suggest you any lawyer for the purpose of filing a divorce petition or otherwise. We still suggest you to take the help of close friends or family member in resorting the matter before resorting to the extreme step of seeking divorce.
Q17. What is the right of husband on the child at the separation?
A. After divorce/separation, the husband can move an application for the custody of a child under Guardian & wards Act and if the parties are Hindu then under Hindu Minority & Guardianship Act. The husband also has a right to claim the right of meeting the child and to take the child during holidays till the disposal of the petition for custody. The parties can ask for the above said interim relief from the Court.
Q18. The marriage prohibited under sapinda relationship undertook and the husband gave his daughter in marriage to Mr. S. was deliberately kept in dark about the sapinda relationship of the parents-in-law and that one child is completely mentally retarded and wife of Mr. S has been using psychotropic/anxiolytic/hypnotic drugs since birth. Whether the Act of father-in-law attracts the provision of Section 420 of the IPC and can the marriage of Mr. S. be annulled by divorce? Can Mrs. S be legally subjected to medical check for Schizophrenia?
A. In so far as the offence of cheating is concerned, a case of cheating would lie against Mr. S's father-in-law in as much as he has induced you and deceived you to do something which you would have omitted to do if you were not so deceived and the said action has also caused damage to your mind, as per the requirements of Section 415 IPC which defines cheating. In so far as the annulment of marriage of Mr. S. by divorce is concerned, it has to be proved that the spouse / wife is incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that Mr. S. cannot reasonably be expected to live with her. A mere case of drug abuse may not attract the said provisions. However, if there are various instances which can be specifically defined and pleaded, then Mr. S. can seek divorce on the grounds of mental cruelty having been caused to him because of the said drug abuse and the behavior of the wife.
Q19. What is the punishment for a man who tortures a woman mentally, physically or verbally?
A. It is an offence punishable under section 498A of the Indian Penal Code, 1860, which is imprisonment for a term which may extend to three years and shall also be liable to fine.
Q20. If the wife has left the house of her husband and was living away from him, can the wife be entitled to judicial separation or divorce ? The wife thinks that there are reasonable causes for this unlike the husband. The cause as stated by the wife is mental cruelty. Can mental cruelty be pleaded to claim a divorce from the other spouses?
A. Mental Cruelty can certainly be pleaded to claim divorce from the other spouse. Under Section 13 (1) (ia) of the Hindu Marriage Act, 1955, either spouse can seek divorce or judicial separation on the grounds of cruelty, which includes mental cruelty. The wife is fully justified in living away from the husband in case she is suffering mental cruelty at the hands of the husband. A petition for divorce or judicial separation can be filed detailing each and every incident of mental cruelty. The instances are required to be specific and should be of such a nature as to be construed of causing mental agony to the wife and should not be merely day to day minor quarrels which normally take place in a married life.
Q21. I want to get a divorce by consent from my wife. After separation I want to give one my houses to her and also give some amount of money. How can I do this . Is any registration required for giving her the house.
A. Divorce by mutual consent can be obtained by Husband and Wife in terms of Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said Section require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further. A joint petition can be filed in this regard and after the filing of the same the Court grants a period of six months for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce can not be granted. You can definitely give a house or any amount of money to your wife while agreeing for divorce by mutual consent. However, as the consent can always be withdrawn within the period of six months (as stated above) it is always better if the said transaction is carried out when the second consent statement is made after six months of the filing of the petition and when the divorce decree is being granted. The transaction of property definitely requires registration with the Sub-Registrar. Since, no amount of consideration would be paid by your wife for acquiring the said property, it would be appropriate if a gift deed is executed and registered with the Sub-Registrar, after paying the requisite stamp duty on the same.
Q22. How can I take divorce from my wife?
A. In the event of your being a Hindu, that is Hindu, Sikh, Buddhist or Jain by religion, you would be governed by the provisions of the Hindu Marriage Act, 1955. Divorce under the said Act can be obtained only on the grounds specified under Section 12, whereby a person can seek divorce on the following grounds : (a) If the other party after the marriage had voluntary s*xual inter-course with another person. (b) If the other party after marriage has treated the complainant with cruelty. (c) If the other party has deserted the complainant for a continuous period of not less than two years. (d) If the other party has seized to be Hindu by converting to another religion. (e) If the other party has been in curably of unsound mind or has been suffering from mental disorder of such a nature that the complainant cannot be reasonably expected to live with her/him. (f) If the other party has been suffering from an incurable form of leprosy. (g) If the other party has been suffering from venereal disease in a communical form. (h) If the other party has renounced the world. (i) If the other party has not been heard of being alive for a period of over 7 years. Divorce can also be obtained by mutual consent by Husband and Wife in terms of Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said Section require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further. A joint petition can be filed in this regard and after the filing of the same the Court grants a period of six months for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce can not be granted.
Q23. A wife is inflicted to mentally cruelity by her husband. Her husband either does not feel so or does not accept so. She leaves the house with out informing him and takes a different house for rent and stays there. Can the husband put a legal cases against her for this?
A. What type of legal case you anticipate? If the ground is only of the wife staying separately the husband can file a case for restitution of conjugal rights for bringing the wife back. If the wife refuses to come then the husband can also seek divorce on the grounds of Desertion by the wife, provided the wife is continuously staying away for a period of over two years. However, if the wife justifies that she has left the matrimonial house because of cruelty meted out to her, then her action would be justified and the husband cannot be granted divorce on the ground of desertion.
Q24. I, & my wife want a divorcee. We have one son age [7 years). Please clarify what papers are required to be submitted & whether son will be in mother's custody or father's custody?
A. You and your wife can file Divorce Under Section 13-B of the Hindu Marriage Actof 1950, wherein the parties can seek divorce by mutual consent by filing a petition before the court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months where after the party has to again approach the court for making a second motion confirming the mutual consent earlier given in the petitioner filed by them. It is only after this second motion is made that a decree of the divorce is granted by the court. During this period of 6 months when the petition is pending , any of the spouse is fully entitled to withdraw the mutual consent. In such an eventuality no divorce decree can granted by the court. The consent can be withdrawn during this period of 6 months by either of the spouse, by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent. The court is bound under such circumstances not to grant a decree of divorce. There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950 . In such a situation divorce can be granted only on certain specified grounds as mentioned in the said provision. Now a days some of the Courts are exempting the period of 6 months also. Parties can decide the custody mutually, if they fail to decide, the court will decide the custody. Custody is decided by the court keeping in mind the welfare of the child.
