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Divorce within one year of marriage: Is it possible?

Section 14 of the Hindu Marriage Act prohibits divorce within one year of marriage unless there is any exceptional hardship or depravity. If exceptional hardship exists then spouse can approach the Family Court and take leave to file divorce petition within one year of marriage.

Question: My husband is planning to settle in the USA and I want to stay in Bangalore. Therefore, we want to file a mutual consent divorce because we have decided to live separately. Can we file mutual consent divorce within one year of marriage? Our parents do not agree for divorce because our marriage is only six months old. 

My husband has been selected in a multinational company on a very high salary. His future is very bright in the USA hence, he does not like to live in India. Whereas, my parents are very old and I’m the only child. They cannot go to the USA with us and I’m working in PWC Bangalore. My salary is enough to live a good life with my parents in Bangalore. Sir, please suggest how we can take mutual divorce within one year of marriage?

Question from: Karnataka

The spouses can take divorce by mutual consent under Section 13-B of the Hindu Marriage Act 1955. These are the essential elements for mutual consent divorce.

  • Spouses have been living separately for a period of one year or more. 
  • They have not been able to live together. 
  • They have mutually agreed that the marriage should be dissolved.

Thus, separation between husband and wife for more than one year is mandatory for the mutual consent divorce. Your marriage is only six months old and you are living together. Section 14 prohibits filing divorce petition within one year of marriage. 

Divorce within one year of marriage

Section 14 of the Hindu Marriage Act mandates that any petition for dissolution of marriage is not maintainable within one year of marriage. Furthermore, section 14 says that in exceptional hardship, a divorce petition within one year of marriage is maintainable. 

Therefore, you cannot file divorce petition within six months of marriage unless there is any exceptional hardship. Without proving the exceptional hardship the court will dismiss your divorce petition [Ragini Devi vs Mukesh Kumar 2015 Patna HC.]

Exceptional hardship

Exceptional hardship or exceptional depravity is the ground to seek leave of the court for filing a divorce petition within one year of marriage. These are some examples which constitute exceptional hardship:

  • Desertion from husband or wife from the very first day of marriage.
  • Cruel behaviour of the wife to such an extent which makes that husband cannot live with her.
  • Severe mental tourture by the husband or wife.
  • Unusual behavior and arrogance 

If exceptional hardship exists you can seek a leave of the court to file divorce petition. In G. Ganesh Babu Vs. A.P Arthi 2013 (2) CTC 320; the High Court has held that on the leave of the court spouse can file divorce petition within one year of marriage. The court will grant leave to divorce petition if there is an exceptional hardship. 

No exceptional depravity exists in your case hence, you cannot approach the Family Court for filing a divorce petition. Mutual consent diovrce is also not possible because you have been living together. Ingredients of Section 13-B are lacking in your case. So it is better to change your idea to take mutual consent divorce within one year or marriage.

Lawyer’s advice

Refused leave on pending departmental inquiry

When the probability of conviction in departmental inquiry is bleak or the allegations made in charge sheet are bald then the concerned authority should not refuse your leave application. The applicant should approach the Central Administrative Tribunal for quashing of the order of refusal of leave application.

Visitation right of father: Wife does not allow me to meet my son

A non custodial father i.e. a father who cannot get custody of a child, has a visitation right to meet and spend some time with his child. Father’s visitation rights accrues after dissolution of marriage, divorce or judicial separation. It does not arise when wife is living separately due to some differences.

Right of Muslim woman while living separately

A Muslim woman who is living separately due to cruelty of husband, has right to maintenance under Section 125 of the Code of Criminal Procedure. She can also invoke the provisions of Protection of Woman from Domestic Violence Act. She can claim residence order and monetary relief under the DV Act. Her husband cannot evade himself from his marital responsibility.

Possession without occupancy certificate

Occupancy certificate or completion certificate is an important document because it proves that the flat is fit for occupancy or living. It also proves that the builder has constructed the builder as per the permission granted by the competent authority. If a flat buyer takes possession in absence of occupancy certificate it may cause harm to his property rights.

Builder giving possession in another apartment

Builder cannot give possession in another apartment because it is a breach of agreement to sell. When the builder has signed an agreement to construct a particular flat for the buyer, later on he cannot unanimously decide to give possession in another apartment. The buyer has to decide whether he wants possession or claim refund of money from the builder.

Husband has recorded whatsapp conversation

When the recorded whatsapp conversation does not form any ground for divorce as mentioned in Section 13 of the Hindu Marriage Act, the wife should not be worry about that. Conversation between mother and daughter does not amount to cruelty hence, the recorded whatsapp conversation has no legal value.

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