Paid Advise

Divorce within one year of marriage: Is it possible?

Shivendra Pratap Singh

Advocate

30/06/2021

Reading Time:

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.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

More For you

How to get a mutual consent divorce within six months?

Question: I was married to my boyfriend when I was studying in B.Tech. We solemnised our marriage in a temple. How to get a mutual consent divorce within six months? All those things happened in hush-hush. No one knew about our marriage but we got registration of our...

Legal validity of consensual relationship with brother

Question: It is a complicated situation for me, I am a 40 year old lady. My husband was an abuser and we have legally divorced 6 years ago without any issues left. I left my hometown, came to Delhi to join a job and started staying with my brother who is never married...

Child Custody to a third party 

Question: My partner wishes that I could take legal custody over her. She is happy with her family but wants to leave. I live in the UK, and she lives in India. What (if any) are our options? Can the court allow child custody to a third party?  Asked from: Uttar...

My wife has filed false FIR

Question: My wife has filed false FIR under Section 498A/406 IPC. Section 3 & D P Act, against me and my old aged ill widow mother. I am the only child and my wife and her parents are hell-bent to take divorce. She wants to remarry. Hence they told me they will...

Can I cancel the marriage after engagement

Question: I want to cancel the marriage after the engagement. I met a girl on 14.01.2022 & had an engagement (roka) on 19.01.2022. I met her from 15.01.2022 to 22.01.2022. After that she went to another city (Mumbai) & joined her office. After that she used to...

Mother is taking custody of children from father

Question: My wife is living apart. She is living with her paramour and happy with him. I have two children, both are sons. Now the mother is taking custody of the children from the father. It is a very painful situation for me. Both sons are minor and very happy with...

Kanoonirai has been advising in legal issues since October 2014. You can consult a lawyer through online media, telephonic consultation and video conferencing.

Contact

mail[at]kanoonirai.com
+91-91400-4[nine][six]54