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How can I divorce my wife if she don’t agree with divorce by mutual consent?

Q. After marriage due to certain difference of opinion between me and my wife, we were separated. When I tried for divorce she was unwilling for the same. I am ready to look after my son and daughter. How divorce can be obtained?

There are many laws prevailing in India that govern divorce under personal laws like Hindu Marriage Act 1955, Christian Marriage Act 1872, Dissolution of Marriage Act 1939 for Muslims, Parsi Marriage and Divorce Act 1936 and Special Marriage Act 1954.

Seeking divorce from only one partner will become more complicated and demanding it from the other, if the other party does not want a divorce.  Fastest way to get divorce is by Mutual Consent under Hindu Marriage Act 1955. If we consider your marriage under Hindu Law then Hindu Marriage Act 1955 applies. Since your wife is not willing to give divorce you can take any of the following grounds as stated under Hindu law for divorce. Adultery, Desertion, Cruelty, Impotency, Chronic Diseases any of these reasons can be applied as the case may be as a ground for divorce.  Section 13 of The Hindu Marriage Act 1955 explains about grounds of divorce.  Section 13(1) (ia) explains that marriage can be dissolved by decree of divorce if after marriage the wife/husband has treated the petitioner with cruelty.

Every religion has their own belief and so Indian Judiciary has implemented laws separately. Mutual consent divorce is mostly preferred over the contested divorce. Cruelty as a ground of divorce can be considered by you and the grounds of cruelty can be decided by court based on the facts and circumstances.  Anil Bharadwaj v Nimlesh Bharadwaj in this case court held that if wife refused to have sexual intercourse with her husband without valid reasons wherein the court considered it as cruelty against her husband.  Kalpana v. Surendranath in this case court held that if wife refused to make tea for her hubby’s friends that can also amount to cruelty against husband.

Cruelty is a valid ground for dissolution of marriage. It is a wilful and unjustifiable conduct of a partner which leads to danger to life, limb or health, bodily or mentally. Mental cruelty can be considered in the light of norms of marital ties in the society and the social values and status. This was explained in Maya Devi v Jagdish Prasad case as the base for divorce. Divorce duration varies from case to case and from area to area. Contested divorce proceedings will usually take around 18 to 24 months.

by Sushma Javare