Divorce for remarriage
5 years ago
My brother marriage happend on 27.01.2019.after marriage there is no physical relation ship not for once.the bride says she is forced by her father for this marriage,but before marriage the bride is asked several times that if she agreed or not she says yes.now she did not want this marriage and we asked her to write that she did want this marriage.she did not write it.there is no marriage registration .
A.Dear Sir,
Your brother may file divorce case or Restitution of Conjugal Rights as follows:
========================================================================================
Non-consummation of marriage a ground for divorce: apex court.
Mental cruelty can cause more serious injury than physical harm to married woman
Spouses owe rights and duties to each otherBegetting children a principal aim of Hindu marriage
New Delhi: The Supreme Court on Tuesday ruled that non-consummation itself would constitute mental and physical cruelty to a married woman and would be a ground for divorce under the Hindu Marriage Act (HMA) 1955. Granting divorce to a woman, a Bench consisting of Justices Ruma Pal and A.R. Lakshmanan said: ``Spouses owe rights and duties to each other and in their relationship they must act reasonably."
Writing the judgment, Mr. Justice Lakshmanan said mental cruelty could cause even more serious injury than physical harm to the married woman.
The Bench said: ``Under Section 13 (1) (iii) mental disorder as a ground for divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation are not possible, it may furnish a good ground for nullifying the marriage because begetting children is one of the principal aims of Hindu marriage where "sanskar" is advised for progeny and offspring.''
The Bench said: ``The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when cruelty consists of not violent acts but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of company and abhorrence, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause.''
Vinita Saxena was married to Pankaj Pandit in keeping with Hindu rites and customs in February 1993. She found that her husband was suffering from schizophrenia and the marriage was not consummated. He was not in a position to perform his matrimonial obligations. According to her, her mother-in-law drove her out after five months and she was not permitted to return again.
Ms. Saxena filed a petition for divorce under Section 13 (1)(1-a) and (iii) of the HMA on the ground of cruelty as well mental disorder. Both the trial court and the Delhi High Court rejected her plea.
Miscarriage of justice
Allowing her appeal, the Supreme Court held that their orders resulted in a grave miscarriage of justice to the woman, who had been constrained to live with a dead relationship for over 13 years. This was a fit case for freeing her from the shackles of the respondent-husband and let her live her own life as a human being.
Denial of Sex to Husband for long time without any sufficient Cause amounts to Mental Cruelty; SC grants Divorce [Read the Judgment]...
A Supreme Court bench comprising of Justice S.J. Mukhopadhayaya and Justice Prafulla C. Pant, in a judgment delivered yesterday, upheld dissolution of marriage between the parties, on the grounds of denial of sex as amounting to mental cruelty....
The Court observed, “Undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse. A Bench of Three Judges of this Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some of the illustrations of mental cruelty.”
• Consummation and non-consummation FAQs
Dear Sir,
My answers are as follows:
1. What's the difference with respect to maintenance of alimony when couple are separated in consummated marriage from that of non consummated one?
Ans: The following judgments of SC gives you an idea about this.
2. How to prove wife refusal for same.?
Ans: Some circumstantial evidences, WattsApp/SMS messages are sufficient.
3. Does court consider whatever wife says?
Ans: Court is always NEUTRAL.
4. What other means are there to prove non cumsummation?
ANS: It depends upon the case you can prove it by oral statements or WattsApp/SMS messages. Recordings etc.,
5. Does court see husband as guilt/cause for non cumsummation
Ans: Court always presumes in favor of husband because man is more towards the sex whereas the woman is less towards the sex. Court never believe that husband denied the sex but it can believe vice versa, it is universally accepted phenomena. The is as follows.
For full procedure contact me on mobile through Vidhikarya.
Rate me Five Star *
Please visit the following link.
https://vidhikarya.com/LawyerRating/9506c43f5d0b2d266a07
Your brother may file divorce case or Restitution of Conjugal Rights as follows:
========================================================================================
Non-consummation of marriage a ground for divorce: apex court.
Mental cruelty can cause more serious injury than physical harm to married woman
Spouses owe rights and duties to each otherBegetting children a principal aim of Hindu marriage
New Delhi: The Supreme Court on Tuesday ruled that non-consummation itself would constitute mental and physical cruelty to a married woman and would be a ground for divorce under the Hindu Marriage Act (HMA) 1955. Granting divorce to a woman, a Bench consisting of Justices Ruma Pal and A.R. Lakshmanan said: ``Spouses owe rights and duties to each other and in their relationship they must act reasonably."
Writing the judgment, Mr. Justice Lakshmanan said mental cruelty could cause even more serious injury than physical harm to the married woman.
The Bench said: ``Under Section 13 (1) (iii) mental disorder as a ground for divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation are not possible, it may furnish a good ground for nullifying the marriage because begetting children is one of the principal aims of Hindu marriage where "sanskar" is advised for progeny and offspring.''
The Bench said: ``The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when cruelty consists of not violent acts but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of company and abhorrence, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause.''
Vinita Saxena was married to Pankaj Pandit in keeping with Hindu rites and customs in February 1993. She found that her husband was suffering from schizophrenia and the marriage was not consummated. He was not in a position to perform his matrimonial obligations. According to her, her mother-in-law drove her out after five months and she was not permitted to return again.
Ms. Saxena filed a petition for divorce under Section 13 (1)(1-a) and (iii) of the HMA on the ground of cruelty as well mental disorder. Both the trial court and the Delhi High Court rejected her plea.
Miscarriage of justice
Allowing her appeal, the Supreme Court held that their orders resulted in a grave miscarriage of justice to the woman, who had been constrained to live with a dead relationship for over 13 years. This was a fit case for freeing her from the shackles of the respondent-husband and let her live her own life as a human being.
Denial of Sex to Husband for long time without any sufficient Cause amounts to Mental Cruelty; SC grants Divorce [Read the Judgment]...
A Supreme Court bench comprising of Justice S.J. Mukhopadhayaya and Justice Prafulla C. Pant, in a judgment delivered yesterday, upheld dissolution of marriage between the parties, on the grounds of denial of sex as amounting to mental cruelty....
The Court observed, “Undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse. A Bench of Three Judges of this Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some of the illustrations of mental cruelty.”
• Consummation and non-consummation FAQs
Dear Sir,
My answers are as follows:
1. What's the difference with respect to maintenance of alimony when couple are separated in consummated marriage from that of non consummated one?
Ans: The following judgments of SC gives you an idea about this.
2. How to prove wife refusal for same.?
Ans: Some circumstantial evidences, WattsApp/SMS messages are sufficient.
3. Does court consider whatever wife says?
Ans: Court is always NEUTRAL.
4. What other means are there to prove non cumsummation?
ANS: It depends upon the case you can prove it by oral statements or WattsApp/SMS messages. Recordings etc.,
5. Does court see husband as guilt/cause for non cumsummation
Ans: Court always presumes in favor of husband because man is more towards the sex whereas the woman is less towards the sex. Court never believe that husband denied the sex but it can believe vice versa, it is universally accepted phenomena. The is as follows.
For full procedure contact me on mobile through Vidhikarya.
Rate me Five Star *
Please visit the following link.
https://vidhikarya.com/LawyerRating/9506c43f5d0b2d266a07
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Suneel Moudgil
Responded 5 years ago
A.well replied by the experts
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Nirmal Chopra
Responded 5 years ago
A.You can either settle the dispute amicably or can file a petition for divorce. If the bride does not want to live with the husband, pacify her to file a divorce by mutual consent.Minimum one year should have lapsed from date of marriage, prior to that only supreme court can reduce time for filling a petition .otherwise wait for one year of marriage to be complete.
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Shreyash Mohta
Responded 5 years ago
A.There are two options you can proceed with
1. File a restitution of Conjugal Rights [To cohabit and stay together] , if they do not comply with the same then you can proceed for divorce on the grounds that she did not comply with restitution of conjugal rights.
2. You can file a Divorce Petition on the following grounds
(A) Mental and Physical Cruelty
(B) Torture
(C) No Cohabitation etc.
HOWEVER IT MUST BE NOTED THAT A SUIT FOR DIVORCE WILL NOT BE ENTERTAINED UNTIL AND UNLESS THE SPOUSES HAVE COMPLETED ONE YEAR OF MARRIAGE. AND IT IS ON SPECIAL AND VERY RARE GROUNDS THAT A DIVORCE PETITION IS ACCEPTED BEFORE COMPLETION OF ONE YEAR. [UPON THE DISCRETION OF THE COURT]
Thanks
Shreyash Mohta
1. File a restitution of Conjugal Rights [To cohabit and stay together] , if they do not comply with the same then you can proceed for divorce on the grounds that she did not comply with restitution of conjugal rights.
2. You can file a Divorce Petition on the following grounds
(A) Mental and Physical Cruelty
(B) Torture
(C) No Cohabitation etc.
HOWEVER IT MUST BE NOTED THAT A SUIT FOR DIVORCE WILL NOT BE ENTERTAINED UNTIL AND UNLESS THE SPOUSES HAVE COMPLETED ONE YEAR OF MARRIAGE. AND IT IS ON SPECIAL AND VERY RARE GROUNDS THAT A DIVORCE PETITION IS ACCEPTED BEFORE COMPLETION OF ONE YEAR. [UPON THE DISCRETION OF THE COURT]
Thanks
Shreyash Mohta
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Rameshwar Dadhe
Responded 5 years ago
A.U should wait till completing one year . Then file divorce petition
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