Divorce Divorce

3 years ago

2 years back me and my husband got marry, our was love marriage. I am Bengali and he is south Indian guy. Our marriage life is going good. But when we are fighting that is going so bad. He is southing a lot. And because of the society I try to stop myself. This thing is disturbing me a lot, after this kind of situation I am not able to control myself, in my mind bad thoughts are coming, but I am not able to do anything. In between some family matters are also there. If we try to speak in normal time regarding this all things, again that kind of fighting is getting start. So we are not talking also. Just maintaining a distance between us. I am trying to go away from home. That's the reason took transfer from office. Is there any option to get relief from this ?

Anish Palkar

Responded 3 years ago

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A.I have gone through your query in detail.
1) There are two sides of the same coin and so is the life….. there are always ups and downs and difference of opinion in the thought process of each and everyone.
2) As you was into the love marriage let me try to solve it positively as you must be knowing the person…eachother very well from the past two years at least
3) if all the things were actually very right at that time how all of a sudden the things are gone from better to worse in just 2 years, as per my belief there is some lack of understandings between the two.
4) You both may be having some of the common friends try to speak with them to find the proper alternative as it sometimes so happens that we are in the position in which we cannot find the way out but, probably of friend circles may be able to guide you
5) more if required also take professional counselling as what is lacking up between both of you. Dissolving a marriage just for the sake as you both are fighting continuously is not the answer to it.
6) In your query you are not mentioned currently in which state are you staying in so we could actually guide you out to some marriage counselor or you could come down to our office and we could arrange some meeting for betterment of your marriage life.
7) And even in the end if things doesn't turn up in a positive way even after counselling then of course you can ahead for divorce on mutual terms....
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ADV. ANISH PALKAR (High Court)
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Vidhi Samaadhaan Vidhi Samaadhaan

Kishan Dutt Kalaskar

Responded 3 years ago

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A.Dear Madam,
You have to save marriage. Use judicial separation and maintain distance judiciously for one year and then reunion and continue happy married life.
Please give me Rank 5 if you feel my answer helped you.
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You will get judicial separation. The procedure is as follows. The alimony formala is given at the end.
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Special Marriage Act, 1954

23. Judicial separation

(1) A petition for judicial separation may be presented to the district court either by the husband or the wife,-

(a) on any of the grounds specified 17[in sub-section (1) 18[and sub-section (1A) of section 27] on which a petition for divorce might have been presented; or

(b) on the ground of failure to comply with a decree for restitution of conjugal rights;
and the court, on being satisfied of he truth of the statement made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.

(2) Where the court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
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Judicial Separation and Divorce in India as per Hindu Marriage Act

Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e. divorce. The reason for the presence of such a provision under Hindu Marriage Act is the anxiety of the legislature that the tensions and wear and tear of every day life and the strain of living together do not result in abrupt break – up of a marital relationship. There is no effect of a decree for judicial separation on the subsistence and continuance of the legal relationship of marriage as such between the parties. The effect however is on their co-habitation. Once a decree for judicial separation is passed, a husband or a wife, whosoever has approached the court, is under no obligation to live with his / her spouse .

The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955. The section reads as under:

A decree for judicial separation can be sought on all those ground on which decree for dissolution of marriage, i.e. divorce can be sought.

Hence, judicial separation can be had on any of the following grounds:

Venereal disease in a communicable form
Renunciation of world by entering any religious order
Has not been heard of as being alive for seven years
If the person applying for judicial separation is the wife, then the following grounds are also available to her:
Remarriage or earlier marriage of the husband but solemnised before the commencement of Hindu Marriage Act, 1955, provided the other wife is alive at the time of presentation of petition for judicial separation by the petitioner wife.
Rape, sodomy or bestiality by the husband committed after the solemnization of his marriage with the petitioner.
Non-resumption of co-habitation between the parties till at least one year after an award of maintenance was made by any court against the husband and in favour of the petitioner wife.
Solemnization of the petitioner wife’s marriage with the respondent husband before she had attained the age of 15 years provided she had repudiated the marriage on attaining the age of 15 years but before attaining the age of 18 years.

It is on all the above grounds that judicial separation can be sought. The first 9 grounds are available to both the husband and the wife but the last four grounds are available only to the wife. It is to be noted that it is on these grounds that divorce is also to be granted. It has been held that unless a case for divorce is made out, the question of granting judicial separation does not arise. Therefore, the Courts while dealing with the applications for judicial separation shall bear in mind the specific grounds raised for grant of relief claimed and insist on strict proof to establish those grounds and shall not grant some relief or the other as a matter of course. Thus on a petition for divorce, the Court has discretion in respect of the grounds for divorce other than those mentioned in section 13 (1A) and also some other grounds to grant restricted relief of judicial separation instead of divorce straightway

if it is just having regard to the facts and circumstances.

Another question that arises is of decree of maintenance vis-à-vis decree for judicial separation. Where a decree for judicial separation was obtained by the husband against her wife who had deserted him, the wife not being of unchaste character nor her conduct being flagrantly vicious, the order of alimony made in favour of the wife was not interfered with by the Court.

ILR (1964) 2 Punj 732.

The Punjab and Haryana High Court has also held that a reading of sec 24 and 26 (maintenance) does not show that if a petition under section 9, 10 12 or 13 is disposed of, the jurisdiction of the court to award maintenance pendent lite by an order to be passed is taken away.

AIR 1981 Punj 305 ; 1981 Hindu LR 345

The above decisions go on to show that even where a decree for judicial separation is passed in favour of the husband, maintenance may still be awarded to a wife and judicial separation is no defence to a claim for maintenance under Hindu Marriage Act.

Though section 10 of the Hindu Marriage Act does not provide any time as to how long judicial separation can last. But section 13 of the Act provides that if there is no resumption of co-habitation between the parties one year after the decree for judicial separation is passed, the parties can get a decree for divorce on this ground itself. But divorce on this ground will be given only when one year has expired after the passing of the decree for judicial separation and not earlier. The reason for this is that one year is a long period and it provides sufficient time to the parties for reconciliation or to arrive at a decision. If the parties fail to overcome their differences within this period, then there is no fun in allowing the legality of the marriage to just linger on when in substance the relationship of marriage has long expired.

It is to be noted, however, that if the parties do agree to resume co-habitation any time after the passing of the decree for judicial separation, they can get the decree rescinded by applying to the court. The Act does not refer to any specific grounds on which a decree for judicial separation can be annulled or rescinded. Section 10(2) however, empowers the Court to rescind the decree for judicial separation if it considers it just and reasonable to do so. However Courts have repeatedly warned that this power of rescission has to be exercised with great circumspection and not in a hurry and only after satisfying themselves that it would be just and reasonable to allow such rescission.
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Anand Shukla Legal Practitioner,Legal Consultant & Advisor

Responded 3 years ago

A.Dear Madam,
As per my suggestion if there is only verbal arguments, there is not much of concern as it happens with most married couples if the element to love persists. But even though you havent stated I want to add if there is fighting with intention to hurt one another, the relationship should end. You can approach for mutual content divorce if both agree on this point

Vidhikarya Advocate
Anand Shukla
Delhi High Court
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Devesh Tripathi

Responded 3 years ago

A.It is better that you discuss with your family members in this matter. Ask them all the things and before that you both sit and talk . Many a times it happens that flare of anger goes very high and then after some times it comes down but dont worry as it happens medical problem also i mean psychiatric problem even a normal person and both husband and wife may suffer and medicine can help and after some times medicine is stopped. better you meet some psychiatric doctor in jaipur or where you are living. I know some of psychiatrist in jaipur they are very good and conselling also done.
need not to go for divorce or any other negative step . you and your husband both should think positively. but meet psychiatrist at the earliest.
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SHAIKH IRFAN KHAMAR SHAIKH

Responded 3 years ago

A.Dear client
Conciliation or mediation is best option to solve problem. However through mahia takrar mediation can be done or trough reputated person mediation can be done inorder to solve the dispute.
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Abhimanyu Shandilya

Responded 3 years ago

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A.Try to resolve the mater amicably to have a peaceful marital life. In case you are sure that relationship is not going to improve in that case you can think of filing a case for separation or divorce. You can file the case in the place you reside now or where your parents house is situated.
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