1) It can be on cruelty ground.

2) Yes mutual consent divorce will be fast instead of judicial separation.

3) You can tell court that in last 3 years you are

came together physical relationship.

4) Yes, the 6 months to 18 months and cooling period clause is the same.

5) No, they can't force you to stay together, if you have filed for divorce.

6) Mother will get child custody as child is minor.

Nobody can stop her doing all these things of legal proceedings. As she also has all legal rights to live as per constitution.

1. Section 27. Divorce

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-

(a) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

(b) has deserted the petitioner for a continuous period of not less than two years immediately proceeding the presentation of the petition; or

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or

(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind, and to such an extent that the petitioner cannot reasonably be expected to live with the respondent

2. Yes it will fast and without any legal hassels and parties can settle the terms of divorce like custody maintenance.

3.the mutual consent divorce under section 28 takes around six month and contested divorce can take more than 2 years

4. She is already married six year ago so no one year period to file divorce she can directly.seek on ground of cruelty.

5. No they can leave.seperstely.

6.Mother, child.under age of 5 are generally with mother

No she can walk out and file.a.dicorce and domestic violence.

No issues in her walking out.

Hi,

If a husband and wife are living under the same roof how it will be proved that they are not in combination? So the basic condition for divorce is not full filed.

She has to live separate for 6 months to file a divorce petition.

The mutual concent will always be a better way to get out of the wedlock and in the least time.

She can file a maintenance under section 125 of CrPC for self and child.

The proceeding may take 1 to 2 years.

1. She can file the divorce petition on the ground of cruelty since attempt of forceful imposition of other religion, refusing to have physical relationship, refusing to maintain family is considered as acts of cruelty being a valid ground to seek the decree of divorce..

2.& 3. She can negotiate with him for jointly filing a mutual consent divorce petition on agreed terms which will be decided with in 6 & 1/2 months from the date of its filing.

4. If any of you show a separate address in the petition and both of you jointly mention therein that you are staying separately for more than 1 year then the Court will not break its head to find out whether you two are really staying separately or not. Cooling period clause will be applicable.

5. They can file the MCD petition only if they show and also mentyion in the petition that they are stayting separately for more than 1 year. In case of contested divorce, they can stay even in the same room till they get the decree of divorce.

6. Mother is the natural guardian of her child up to his/her 5 years of age. So, in the instant case, you shall get his/her custody for sure.

Wife can file fir divorce on grounds of mental cruelty

2) contested divorce cases take 5 years to be disposed of

3) mutual consent divorce takes 6 months

4) mutual consent divorce is best option

5) since you have been staying in sane house bit not as husband and wife you can file for divorce by mutual consent

6) not necessary to stay together after filing for divorce

7) in consent terms for MCD it should be mentioned that mother would have custody of child

Respected sir/mam...

1- there are number of grounds for divorce such as cruelty,dissertation,separation, mental disorder are the grounds on which you can file divorce petition..

2- yes divorce with mutual consent is best for each and everyone it will escape harassment for both the parties ...

3- if you will go as per section 13-A without consent then it will take time if u go for mutual consent then it will take just six months ...

4-yes that 6 months period is mandatory ...

5- no one have right to force anyone in any of the circumstances as they will not be forced ...

6-until child attains the age of 5 year the child will be with mother as per law ...

if she want and wish to live there then they can live else she can go anywhere as it is her right ...

Thank you

No, there is no such law which can blame her, but she should not be in adultery.

Secondly, mutual would be a best option.

Thirdly, custody would be given to mother first, and also she can ask for the maintenance.

Grounds of Divorce under Special Marriage Act:

Adultery.

Two years desertion.

Respondent undergoing a sentence of imprisonment for seven years or more for n offence under IPC, 1860.

Cruelty.

Venereal diseases in a communicable form.

Leprosy.

Incurable insanity or continuous or intermittent mental disorder, and.

Presumption of death.

Yes, going for a mutual divorce is the best way out.

Also, there's a way out of this Marriage without going for divorce. She can reconvert to her original Faith, i.e., Hinduism and this will automatically end this marriage.

Contested divorce can take anything between 2-3 more.

Yes, the cooling off period of 6 months still applies. However, the court can be requested to waive this off.

1. On the ground of mental cruelty suit for dissolution can be filed. If both parties agree then under section 28 a petition for mutual divorce can be filed.

2. yes

3. There is no time limit for contested divorce suit but mutual divorce takes six months of time.

4. 6 months waiting period can be waived at the discretion of the court.

5. Without staying separate for more than one year no mutual divorce can happen.

6. All terms of settlement in mutual divorce including the issue of permanent alimony and child custody is mutually agreed.

7. Nothing can stop a consenting adult to take any decision on her marriage.

Dear client: The circumstance evidence and picture make me feel that a mutual consent agreement will be best option.

Now days court is approching with leainantancy when a divorse plea with mutual consent is filed.

Forcing someone to follow / adopt religion or beliefs without wishes of the other person itself is a crime.( This can be one of reason for divorse)

Since Both the parents are staying in same premises there cannot be any relief to limitation period . Still a six months waiting period( if by mutual consent) will be granted by family court.

Based on joint mutual consent court shall allow Judicial seperation with a minimum of six months waiting period.

It is not necessary that during the judicial seperation both partners stay at one place.This period is only for reconciliation in case both parents agree n change their mind to continue their relationship together again.

I think custody of the child will go to the mother considering many factors which seems in favor of the mother.

If wife is taking such decision to divorse her husband, that means she must have calculated lot of things before arriving at this decision.

If mutual consent is on cards then safe guarding reputation have no meaning.

1. Divorce can be filed on the ground of special marriage act.

2. Yes the mutual consent any day is the best form of separation.

3 Mutual will take 6 months and the contested divorce will take around 1.5-2 years.

4. Yes this will anyways apply.

5. No, they can not be forced to live together

6. If it is a mutual consent then it will be decided mutually, if not then the court will decide the same considering the welfare of the child.

She can not be stopped from doing so, if she moves out then she will be having a weaker case.

Regards

1. She can file the Divorce on the ground of cruelty.

2. Mutual Consent is always the best way out, given it is less time consuming and filled with less acrimony and bitterness.

3. If it is a MCD, The Petition should be disposed off within 6-8 months, provided all compliances are carried out. If not, time varies from Court to Court but it would be safe to say minimum 3-5 years in the lower Court.

4. 1 year no as though they living under same roof, no physical intimacy between the both of them. 6 months also can be attempted to be waived off.

5. No.

6. If it is MCD, depends on the consensus the parties are able to reach. In contested matter, depends upon the Court but most likely, the mother will be awarded the custody.

No, she cannot be stopped from leaving the house not can it go against her, especially under the circumstances mentioned by you. However, i would advise her not to walk out just to maintain a pressure over the husband.

1. She can file a contested divorce on the grounds of cruelty under the provisions of special marriage act.

Compelling her to convert to some other religion against her wishes can also be construed as an act of cruelty.

2. Mutual consent divorce would be a better option.

3. Contested divorce may take years to get disposed,whereas the mutual consent divorce may be decided within six months too.

4. Yes, but you can apply for waiving it off on the grounds you rely upon

5. It is not mandatory that they both have to stay together during the pendency of divorce case.

6. The child shall remain in the custody of the mother till it attains 5 years of age however this will not bar the father from claiming child custody.

If husband refuses to accept legal notice it is deemed to be served . Acknowledgment of refusal is sufficient

2) wife cannot have relationship with another man

3) husband would file case of adultery against her lover under section 497 of IPC

4) law regards women as victim . No case of adultery is maintainable against lady

5) child would be illlegitmate

Dear Sir,

My answers are as follows:

1. What grounds can the divorce be filed under?

Ans: Lawyer can make out and suggest 1001 grounds for divorce if you sit with him and discuss. But cannot be spelled out online.

2. If she talks this out, would mutual consent be the best way forward?

Ans: Mutual divorce is one of the recognized method otherwise she may file series of cases.

3. How long does it take since they both don't really share the bond of a husband and wife for the past 3 years odd?

Ans: Deemed marriage is existing in the said relationship of live-in.

4. Would the 1 year, then 6 months clause/ waiting period still apply?

Ans: In mutual divorce it is not applicable.

5. If divorce petitions are prepared and both parties sign, will they be forced to stay together till divorce is finally approved/ passed by the honourable court of law?

Ans: It is not necessary.

6. Who gets the child custody (2.5 year old kid)? Mother earns and supports the finances now.

Ans: Normally till child attains the age of 5 years custody will be given to mother.

7. Curious, if she walks out of the husbands house (since things are bad), is there any law that blames her? Family reputations are at stake, so wish to learn the pros and cons legally. Given she is an adult, is there any cause of concern here? Can she be stopped from doing so?

Ans: You can file case of defamation and also permanent injunction against her restraining her from doing acts which damage reputation of the so called husband.

8. If the woman files a divorce plea and sends a legal notice to her husband- can he refuse to accept it? What would be the best way to make him accept/ acknowledge that? I am sure there are laws that do not encourage someone to keep refusing a divorce plea?

Ans: You have to accept and contest otherwise it will decreed ex-parte.

9. She wishes to move on in life, the husband doesn't wish to let go of her since he has been living on her income all these years (least 5+)- Question is, during separation, if she sends a legal notice for divorce, can she be with another man she wishes to be with, without any legal implications? Can separation, the divorce petition etc be enough grounds for no legal punishment?

Ans: During the separation till divorce decree is obtained she cannot reside with any other person.

10. Read some comments on Adultery, IPC 497: In January 2018, the Supreme Court has a petition in consideration that since women are equal to men, if at all, Adultery is slammed by the husband in this case on the woman and her new companion, would they both be punished by law?

Ans: Adultery can be suitable and filed only against married/unmarried person who is residing with a married woman. However law does not punish a married woman living in adultery.

11. The new male companion of the woman, what all does he need to be careful of? If an adultery case is filed on him, won't the separation and divorce petition from the woman stand in his favour? Would he still be punished? They wish to get married and have a family/ future. The women isn't keen on continuing the older marriage, hope that no law forces her to continue in the older marriage and not move on in life after years of torture/ cruelty and non-acceptance on a family.

Ans: A criminal case can be booked against such person.

12. Worst Case- If the women is pregnant before the divorce is finalized, what would be the legal implications?

Ans: Whether she is pregnant or not the other person will be booked for the offence and after the birth of the child the test of paternity will be conducted.

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COURT VIEW section 497

The Hon’ble Supreme Court has opined this as a favorable discrimination towards women, as the law doesn’t envisage punishment for any of the spouses involved but additionally, not even for a woman outsider. Only an outsider man to the marriage is to be punished under Indian adultery law. It is for this favorable discrimination, the section has defeated the challenges questioning its constitutional validity (valid Article 15(3) of the Indian Constitution) in the apex court. The statute with provision are stated below.

The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954

DIVORCE

The Hindu Marriage Act (HMA) under Section 13(1)(i) and the Special Marriage Act (SMA) under section 27(1)(a) have mentioned in a very precise manner, that any marriage may be dissolved by a decree of divorce on filing of a petition by you on the ground that your husband or wife has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than you

494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

In 2011, while hearing a matrimonial dispute, the Supreme Court criticised Section 497 of the Indian Penal Code. The Section, which criminalises adultery, defines it as consensual sex between a man and a married woman. The bench of Justices Aftab Alam and RM Lodha criticised the law on the grounds that it reduces married women to property of their husband.

The court was hearing the case of Kalyani, who had appealed against an Andhra Pradesh High court judgment. The court had dismissed her petition against a case under Section 497, by another woman Sailaja who had alleged that her husband was having an affair with her.

In 2016, not much has changed. Amit (not his real name), 40, is in the midst of a messy divorce after his wife’s alleged infidelity.

“Why will I take action against her lover when it is my partner who is at fault here? This has been going on for over a year, we have split up and it is public knowledge that she is with him. Yet I’m the one bleeding dry.”

Section 497 of IPC states that, ”Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape, is guilty of the offence of adultery…. In such case, the wife shall not be punishable as an abettor."

The section provides that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charges of adultery and she cannot be proceeded against for that offence.

“Only the paramour of a woman can be booked under the law with a premise that the man lured her into that relationship,” says Deepika Bhardwaj, noted men’s rights activist and filmmaker.

“Adultery is a moral wrong, not a criminal offence and the punishment should be the same for all,” she adds.

Although adultery by definition refers to any extramarital incidence of sexual intercourse, the Indian law criminalises only one form of adultery. It is illegal only if a man has sexual intercourse with a woman who is married without the consent of the woman’s husband.

However, it is not easy to prove connivance or consent.

For example, in the case of Bharatlal vs Top Singh, a trial court had sentenced Top Singh to RI for 1 year and fined for Rs. 700 for the crime of having an extramarital sexual relationship with Bharatlal’s wife. Top Singh had appealed to a sessions court and argued that there was a delay in the process filing a complaint by Bharatlal and that he had proved that Bharatlal had connived to the extramarital relationship. The court subsequently acquitted him of all charges. Yet, later the High court of Madhya Pradesh again reversed the decision stating that connivance was not proven.

Ironically, it was the British that introduced the adultery law in the IPC, but it remains unchanged in India even though the UK has long decriminalised adultery. Now, it remains a ground for divorce with the legal definition of adultery being “physical contact with an alien and unlawful organ.”

However in India, adultery is viewed in a way that a man’s lineage would be tempered with and the other male would be adulterating his blood line by having intercourse with his wife. Hence, the intercourse with the consent of the husband, is not criminalised as he is aware of the lineage.

But the law seems less concerned with protecting marriage than with controlling women’s sexuality The code does not provide for prosecution of that married woman, a single woman who engages in sex with a married man, or a married man who sleeps with a single woman. So, while the law may appear to favour women, it is easily disregarded that it is this very law that does not permit a woman to bring a case against them or the other person.The larger question, however, might interrogate the appropriate boundaries of the State’s reach. “What a person does in his bedroom, with another consenting adult, should never be a criminal offence,” says Alok Prasanna, senior resident fellow, Vidhi Centre for legal policy.

Concurring, Bhardwaj says adultery should come under the civil laws framework where the aggrieved person can claim damages or compensation, but one shouldn’t be jailed for it since it’s consensual.

“If at all it must be termed a criminal offence because of the harm it causes to the institution of marriage, it should be punishable for all-husband or wife and their respective lovers whether man or woman,” says Bhardwaj.

According to Bhardwaj, while the law doesn’t allow a woman to prosecute her husband if he is found cheating, but there are innumerable cases documented where a woman, caught cheating, then files cases under Section 498 A (the Dowry law), the Domestic Violence Act and other provisions for maintenance and alimony on finding that her husband is in an extra marital affair.

“There was recently a case where a woman filed a 498A case on her own cousin, alleging her husband was having an affair with her sister. It’s a different thing that the court ruled that her own sister can’t be made an accused, because she isn’t the husband’s relative, but because he was caught cheating, she slapped this case on him.”

Sanjay Sehgal’s (name changed) wife walked out on him and his 8 year old son in 2008. “I accepted it, till she attempted to play the woman card,” he says. “She wanted a house, a car and then threatened to slap a domestic violence case and that’s when I went to court.”

Sehgal filed a criminal case against his wife’s lover, Dilip Mehta (name changed) relying on videos of the couple in a car as proof. Mehta then moved the high court to question the constitutional validity of Section 497, saying in a changing society where “live-in relationships are being legally recognised,” adultery as a criminal offence is no longer warranted.

The bench of Justice BH Marlapalle and Justice U D Salvi came down heavily on Mehta for these comments and said, “If somebody wants free sex, then first release themselves from the institution of marriage. If such acts are allowed, then there would be no civil society," the judges had said

While the judges observed that adultery was an "offence against the institution of marriage", they also had added that the section needs to be amended to bring women under the purview.

“It’s been 11 years,” says Sehgal who eventually settled out of court and got custody of his now 16 year old son. “Because the law is so skewed, I let the guy (wife’s paramour) go, why blame him? It’s a law of double standards.”

Adultery Divorce

Adultery Indian Penal Code

The word `adultery’ has been derived from the Latin term `adulterium’ and is defined as consensual sexual relationship between a married woman and an individual other than his/her spouse. Almost all religions throughout the world condemn it and treat it as an unforgivable offense. However, this may not be reflected in the legal jurisdictions of the countries but adultery is recognized as a solid ground for divorce in all penal laws.

The Indian penal code also recognizes adultery as a crime and a punishable offence. This law comes under the criminal law of India and has been placed under chapter XX that deals with crimes related to marriage. The laws as stated in the Indian penal code are:-

Section-497- Adultery “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

Section-498- Enticing or taking away or detaining with criminal intent a married woman “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

These laws were drafted in 1860 when India was under British rule and the condition of Indian woman was pathetic. During those periods, a man could’ve several wives and women were socially and economically dependent on men. Women were treated as an object and considered the property of men. Thus, while drafting the laws it was presumed that women are hapless victims, not capable of committing such an offence, instead, it must be a man who will entice her and involve her in an adulterous relationship. But these laws definitely treat a man and a woman unequally in the institution of marriage. According to these laws:-

1. Man is always a seducer and the married woman just an innocent and a submissive victim.

2. Wife is no more than a chattel to her husband and a third person had committed the crime of intruding upon his marital possession by establishing a physical relationship with his wife.

3. Only the husband of the treacherous woman (or a person who had care of the married woman) is a distressed party and he is liable to file a complaint against the third party.

4. There is no provision in the law for a woman to file a complaint against her adulterous husband. If a married man commits adultery with an unmarried woman or a widow or with a married woman with the consent of her husband, his wife is not regarded as an aggrieved party and she is not permitted to make any official grievance against her husband.

Considering the changes our society has witnessed in recent times, the Indian penal code must revise these laws and upgrade them keeping in mind the equality of men and women and enabling women to have more freedom and liberty in making their choices.

1. Let she file a contested divorce case, the court will send summons, if he refuses to received the cummons, the court will set him exparte and an exparte judgment will be given in her favor.

2. Without dissolution of their marriage, living with another person during the period of separation also will be considered as an act of adultery.

If her husband lodges a criminal complaint against her paramour, he can be punished under section 497 IPC for the offences of adultery.

3. Her paramour only can be punished for this offence

4. Adultery is an offence under Indian Penal Code and the paramour of the married woman shall be punished if the offence has been proved before court.

5. That will be a very clear and substantial evidence for her adulterous life.

6. There are plenty of skilled lawyer, you can choose one from this forum too.

1. Its not necessary to send him a notice file a divorce petition before the the family court the court shall send summons if refuse or donot accept the summons and notice the court shall pass an exparte divorce decree.

2. Till divorce decree by court if she stay with another man there can be trouble for that man as her husband can file a case of adultery on that man. Till the divorce decree is granted they are still married.

3. No women are not punished for adultery on man are SC her rejected that petition filed before it for making adultery gender neutral offence.

Only man living with the married women knowing the fact she is married is punishable for adultery,

4. No till the decree is granted separation wont help, yes he can be still be punished as she is legally not divorced from his husband. May it be any case the man can suffer the trial, if it found that person is leaving with the married women. See law prescribes that she can move on her life can seek divorce, the same law prescribes till adivorce decree is not final she is married and she cannot leave in adulterous relationship.

5. That would be the straight proof for adultery and an child out of adulterous relationship, issue out of adulterous relationship shall be the illegitimate child as parents are not married, and in case the husband files case and proves child is out adulterous relationship no separtate evidence to prove adultery is required.

So i would really suggest keep caution till the divorce is finalised, avoid leaving together so that no evidence of adultery is available. To put in simple words do whatever you want there should be no traces like chatting proofs, witness to leaving together, checkin in hotel together .

6. There are great lawyer in this forum can contact them and discuss in detail and take caution husband should not get any evidence to this relationship.

1.If the woman files the divorce suit then the Court will issue her husband Summons/Notice (which her Advocate will post for expediting the matter) and if her husband refuses to receive the said summons/Notice, then the postman will mention 'Refused to receive" and in that case it will be treated as good service and the case will start. If he is not found in the house for a long time, then the Summons/Notice will be published in two local two Newspapers, one being in vernacular and thereafter it will be treated as good service and the case will proceed. If he does not appear before the Court, then the matter will be heard ex-parte.

2.Till she gets the decree of divorce, she is considered as his wife and no other person can stay with her (proving establishment of physical relationship with her without the consent of her husband) and in that case her live in relationship partner will be booked with the charge of adultery u/s497 of IPC, which, if proved, will attract punishment with imprisonment for a maximum period of 5 years.

3. There is a legal debate to change the law and bring women also within the purview of punishment for the crime of adultery but it is still in the stage of debate. As per our law, Indian women can not commit adultery and it is in men's domain only.

4. There should be no evidence that they lived in together. No evidence of her filing divorce suit or staying separately with her husband will save her said partner from being accused under the charge of adultery if he is found living with her as her live in partner.

5. If the woman gets impregnated by that man, then it will be an irrefutable evidence for her husband to prove the adultery of her paramour for sending him to jail.

6. Engage an experienced lawyer having expertise in matrimonial matters to handle your case.

1) Women can file for divorce plea and her husband has to accept that after certain time the summons are not accepted than court may grant exparte.

2) If she wishes to live with another man she can live it but if caught will be called adultery.

3) If husband gives complaints against wife and another man under section 497 of IPC will punished.

4) If wife tells in middle and she says the she had filed for divorce and will be marrying with another man, than here he may get some relief.

5) She has to prove who is the biological father of that child and she has to answered for all questions in the court of law.

6) One of the my friend is practicing in the Bangalore.