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 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.