Grounds for divorce
We got married in arya samaj and after that we came back to our homes to agree our parents. My parents got agree. But her parents are saying that they will not allow her to marry outside the caste. Now they are not allowing me to talk to her in any manner and she is also not trying to say anything. When i try to talk to her parents they always used to say that she wants divorce. I want to know that in this case is it possible to get the decree of divorce in any manner if i want to save my marriage and will not go with mutual concent divorce if they file the same. Because i believe they do not have any valid point to go for contested divorce. The only thing is not normal is our caste. So please suggest me that in this case if they decided to go with contested divorce which ground they can use.
Assuming you have registered yourself under the Hindu Marriage Act, then these are the grounds for divorce under Section 13 of the Hindu Marriage Act-
5-Unsoundness of mind
7-Virulent and incurable leprosy
8-Venereal disease in communicable form
9-Entering new religious order
10-Presumption of death
Assuming, you have registered yourself under the Special Marriage Act, then these are the grounds under section 27 of the Same act-
1-voluntary sexual intercourse with any person other than his or her spouse
2-deserted for a period of not less than two years immediately preceding the presentation of the petition
3-undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); or
4- has since the solemnization of the marriage treated the petitioner with cruelty; or
5-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.
Section 13B of the Hindu Marriage Act 1955 provides for divorce by mutual consent. period of separation is 1 year) Section 28 of the Special marriage Act, 1954 provides for divorce by mutual consent. Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent (period of separation is 2 years) The Conditions required under section 13B of the Hindu Marriage Act are as follows: (i) Husband and wife have been living separately for a period of one year or more, (ii) That they are unable to live together, (iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved.
In your case, the second factor is true , but NOT the first and third factors. Thus, the grounds for divorce by mutual consent stand unfulfilled.
It seems as if they have restrained your wife against her own will. This seems to be a case under Section 340 of IPC, i.e. Wrongful confinement. It is a kind of wrongful restraint, in which a person kept within the limits out which he wishes to go, and has right to go.
There must be total restraint of a personal liberty, and not merely a partial restraint to constitute confinement. Ingredients include-
Wrongful confinement means the notion of restraint within some limits defined by a will or power exterior to our own.
Moral force: Detention through the excise of moral force, without the accomplishment of physical force is sufficient to constituted this section.
They have not allowed your legally wedded wife to talk to you and express her supposed desire for divorce. It is most likely that they have restrained her against her own will and are cooking up this story. Thus, you should file an FIR against them for “Wrongful restraint” in a police station.
The procedure of filing an FIR is prescribed in Section 154 of the Criminal Procedure Code, 1973-
1- When information about the commission of a cognizable offence is given orally, the police must write it down.
2- It is your right as a person giving information or making a complaint to demand that the information recorded by the police is read over to you.
3- Once the information has been recorded by the police, it must be signed by the person giving the information
4-You should sign the report only after verifying that the information recorded by the police is as per the details given by you.
5-Always ask for a copy of the FIR, if the police do not give it to you. It is your right to get it free of cost
If the police is also reluctant to register an FIR, you can approach the Superintendent of Police concerned as per Section 154(3) of the Criminal Procedure Code, 1973 ('CrPC'), who, will either investigate the case himself or direct an investigation to be made by any police officer subordinate to him. You can also file a complaint in this regard with any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf as per Section 190 read with Section 156(3) of the CrPC.
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