This article has been written by Deyasini Chakrabarti from KIIT School of law, Bhubaneswar, Odisha. This article mainly focuses on various aspects of divorce under the Hindu Marriage Act, 1955. This also discusses the historical background, sociological aspects of divorce and also few cases related to it.
Marriage, this seven-letter word itself creates a bonding that not only unites the two people but two families as well. However, until 1955 divorce was completely unknown in the Hindu marriage. According to the traditional belief, a marriage is considered not only as a relationship or a bond that exists for the existing world but it is a bond which also continues beyond. Thus the essence of staying together was so imbibed in the Hindu society that a divorced person was stigmatized and prejudiced in the existing world. In Hindu communities particularly in the so-called lower social strata, the practice of divorce prevailed as a custom. However, with the changing needs of society, the Hindu Marriage Act was considered and ultimately the divorce aspect also found a place in the Hindu Marriage Act.
Marriage is an institution through which two people commit to each other and work for the well-being of the same, thus families are raised through it and an inseparable attachment is also formed as a result. Human beings are unpredictable, thus when the concept of marriage is there, at the same time the concept of divorce also exists.
Concept of Divorce
The word ‘divorce’ had not been defined under any statutory provisions but it could be defined as a legal dissolution of judicial ties established at marriages. Thus a divorce is also a seven lettered word, which separates the united couple at their own wish with their own consent. Thus divorce can be considered a means to break marriage that happens not just between two individuals but also between two families.
Theories of Divorce
The theories of divorce are as follows:
The fault theory
The fault theory of divorce is also known as the offense theory or guilt theory. Therefore it highlights on the point that a marriage can be dissolved when any of the parties within the bond of matrimonial ties commits an offense against the innocent party of the marriage. Thus it is necessary to have a guilty partner and an innocent partner within the bond the matrimonial ties. The innocent party only holds the right to seek remedy for the divorce. However, the most striking feature is that if both parties are at fault there is no remedy available for them.
Mutual consent theory
The reasoning behind this theory is that since two people marry each other through their free will, at the same time, they ought to likewise be permitted to move out willingly. In any case, it highly criticized that this methodology will advance immorality as it will prompt rushed separations and parties would break down their marriage regardless of whether there was a slight contradiction of personality.
Irretrievable breakdown of marriage theory
The irretrievable breakdown of marriage theory is defined as a failure in the matrimonial relationship owning to such adverse circumstances that no reasonable probability remains for the spouses to stay together. As a result of such adverse impossible conditions and situations, the husband and the wife cannot ever stay together. Thus we can say that in such cases there is a stronger reason to live apart compared to the emotions of love, affection, and loyalty that should commonly prevail between the husband and the wife. Therefore the rationale behind this theory is that if a marriage is beyond all possibilities of a repair then it should be brought to an end; when a marriage is not able to last then there is no point in sharing rights and obligations between the two parties.
Why does divorce happen in society? (A sociological perspective)
The rate of divorce in Indian society has grown to a large extent. There are a number of reasons for divorce and the dynamic approach of the society at the same time could be witnessed regarding these stereotypical concepts of Indian society. The main reason for divorce are as follows:
Independence of Indian women
Previously women followed the norms of the given society without questioning about it with their heads bowed down in front of the society for the sake of the so called ‘family respect and status in the society’. However, with the increasing modernization, industrialization, and urbanization women started getting educated and also became more aware of their social happening. Thus understanding the need to stand for themselves, women started earning their own living and therefore, became independent. They started raising their voices against the wrongs committed by their inlaws and husband and started to live, happily and independently. As a result, the women were not afraid to take a stand for themselves and to give divorce to their torturing husbands. Thus the rate of divorce kept on increasing for the same.
Communication gap in marriages
Communication plays a very important role in marriages. Thus when there is no proper communication between the two partners, misunderstanding and fights are bound to take place. Thus lack of communication also sometimes becomes a reason for divorce.
Cheating and Affairs
A trust can never be built upon all over again once it has been broken. Thus when a cheating partner breaks the trust of the loyal partner, it can never be restored again and as a result divorce is bound to happen. Cheating and having an extramarital affair can destroy, demolish and doom a relationship that would be existing between both parties. In India, there are even penal provisions for cheating on the spouse.
Problems with In-laws
It becomes very difficult for a girl who leaves her home and comes to a new family and later finds out that her in-laws are not cooperating, torturing her and making her life impossible to live. Instances are there as a result, the Indian Penal Code also has a statutory provision relating to it such as Section 498A which states about the ‘husband or relative of the husband of a woman subjecting her to cruelty’. At the same time, there are also many instances of forcing the wife to bring money from her father’s home, and when she denies it or is unable to bring such huge financial amounts, the in-laws torture her to death, for this we also have penal provisions of Section 304B which provide for dowry deaths.
It should also be mentioned that there are many instances of the wrong use of Section 498A, thus in two such real cases when there are actual torture and misuse of the law, divorce is bound to take place.
Procreative problems in marriage
Indian societies are designed in such a way, that society not only persuades and influences the couple to a great extent but it also decides that when a couple should give birth to a child. This creates a lot of stress and if such problems are not being sorted out between the partners it may also become a ground for divorce.
Purpose of the law of Divorce
Previously as per the Indian culture and tradition, there was no concept of divorce which was considered to be existing however with the dynamic changes in the society the very purpose of divorce is to punish the guilty party and also to protect the innocent or the loyal one tied within the matrimonial bonds. The very institution of marriage is to provide a happy, coordinating partnership between two individuals, however, if this objective of marriage cannot be meted out there is no point to continue the same. Therefore for a happy free separate and independent living who were previously tied within the matrimonial bonds the concept and purpose of divorce arose.
Relevant provisions related to Divorce under the Hindu Marriage Act,1955
As the needs of the Indian society changed, the concept of divorce also got codified under the Hindu Marriage Act, 1955. Thus, there are a number of sections that deal with divorce such as:
Firstly, the word judicial separation means a legal process through which a married couple gets formally separated even if they are legally married. Thus this concept is also being highlighted under Section 10 of the Hindu Marriage Act 1955. Either party to the marriage regardless of the fact whether the marriage had been solemnized before or after the commencement of this Act, may present a petition praying for an order for judicial separation, on any grounds specified under sub-section (1) of Section 13, and also on account of the wife additionally on any of the ground indicated in sub-section (2) of these grounds on which the request for separation had been presented.
Similarly, Section 10(2) also states that when a decree of judicial separation had been passed it shall no longer be obligatory for the concerned petitioner to stay with the respondent. However, the court also has the liberty that after receiving the application from the petitioner of either party and being satisfied with the actual findings of the statements, they may even dismiss or revoke the decree if it considers just and reasonable to do so.
Section 5 states the necessary conditions for a Hindu marriage. Thus it could also be interpreted that if one of these conditions is contravened or not fulfilled then it could also be a ground of divorce. These conditions are as follows:
- None of the party should have another living spouse during the time of marriage.
- During the time of marriage none of the party-
- Is capable of giving his/her valid consent to marriage as a result of unsoundness of mind.
- Even if he or she is capable of giving valid legal consent, the party had been suffering from mental illness of such a nature and to such a limit that it is completely impossible for him/her to marry and to procreate a child.
- He/she had been subjected to continuous attacks of insanity.
- The bridegroom should complete the age of 21 and the bride should complete the age of 18 at the time of marriage.
- The parties should not be inside the degrees of precluded relationship except if the custom or usage administering every one of them licenses a marriage between the two;
- The parties should not be ‘sapindas’ of one another, except if the custom or usage administering every one of them grants a marriage between the two.
Section 13 is the foundation section that clearly states the grounds of divorce. These grounds are adultery, cruelty, Desertion, conversion, insanity, leprosy, venereal disease, renunciation, and presumption of death. Thus on these grounds divorce is bound to take place between the two legally married couples. Section 13(A) also provides a divorce through mutual consent where both the parties don’t want to continue a married life, thus mutually they accept the fact and consents to have a divorce.
Section 14 states that no petition of divorce could be filed within the first year of marriage. Thus it could be interpreted that one year is the time gap given by the law itself in order to solve, sort, understand and communicate problems with each other. Thus no court shall be competent to entertain a petition for divorce unless the time gap of one year had elapsed. However, upon receiving an application in accordance with the rules made by the High Court, the Court may allow the petition to be presented in case of one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. But if it appears to the court upon hearing the petition that there is a misrepresentation of facts or concealment of the nature of the case the court may as it deems fit may also dismiss the petition without any prejudice.
In discarding any application under this section for leave to present a request for divorce before the [expiration of one year] from the date of the marriage, the court will have to respect the interests of any offspring from the marriage and to the inquiry, whether there is a sensible likelihood of a compromise between the parties before the termination of the [said one year].
Section 15 highlights on the point as to when a divorced person can marry again. It states that when a marriage had been dissolved by the decree of divorce then there is no question of appeal against the decree. However, if there is a right to appeal, there may be situations that the limitation period for appeal had expired without the appeal being presented or if the appeal being considered or presented had been dismissed. Therefore, after completion of all these procedures, the divorcee is free to marry again at their own will.
Grounds for divorce under the Hindu Marriage Act
The grounds of divorce under the Hindu Marriage Act had been stated under Section 13 of the said act. Thus these grounds are lawfully valid grounds for divorce and if such circumstances arise, then, unfortunately, divorce is bound to take place.
Adultery had been defined under Section 13(1)(i). It states that after solemnization of marriage if a married person with the ties of marital bonds is having sexual intercourse with another person who is not his or her spouse, is said to have committed adultery. Adultery is a crime in India and also has its penal provision under Section 497 of the Indian Penal Code. Section 497 of the Indian Penal Code defines as whoever has sexual intercourse with an individual who is and whom he knows or has as reason to accept to be the wife of another man, without the assent or intrigue of husband, such sexual intercourse not adds up to the offense of rape, but is blameworthy of the offense of adultery, and will be punished with an imprisonment of either for a term of five years, or with fine, or with both. In such a case, the wife will not be culpable as an abettor. However, it also draws a link with Section 198(2) of the Code of Criminal Procedure which deals with the prosecution for offenses against marriage. Thus the Supreme court in the case of Joseph Shine v Union of India had held that Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure together constitute a legislative packet to deal with the offense of adultery had been held unconstitutional and thus, it is also being struck down by the Supreme Court.
Cruelty in simple terms means torturing or unreasonable brutal behaviour against one. Thus Section 13(1)(ii) states that even after solemnization of marriage, treating the petitioner with cruelty can also be considered as a ground for marriage. Cruelty is also a criminal offense and also has statutory provisions for the same. Section 498A of the Indian Penal Code states about the cruelty by the husband or the relative of the husband on the woman or wide. This section clearly defines cruelty as :
- any wilful behavior which is of such a nature as is probably going to drive the lady to end her life or to cause grave injury to her life, limb or wellbeing (regardless of whether mental or physical) of the woman; or
- harassment of the woman where such harassment is with the end goal of pressuring her or any individual identified with her to fulfil any unlawful need for any property or important security or is because of disappointment by her or any individual identified with her to satisfy such need.
Thus when two such constituents of cruelty are being meted out, the person committing the same shall be punished with imprisonment for a term which shall extend for 3 years or with fine or both. Its link can also be drawn with Section 113(A) of the Evidence Act. Thus when such brutal acts are committed where an individual wants to end his or her life is bound to be considered as a basic ground of divorce.
In my opinion, it can also be concluded by criticizing that such acts of cruelty only happen on women, but society being dynamic such cases of cruelty also happens on men but there is still no penal provision to protect their rights and dignity. Though such cases of torture on men are rare, it is existing in the Indian society.
It had been held in the case of Krishna Sarvadhikary v. Alok Ranjan Sarvadhikary, AIR 1985 Cal. 431, that the actual intention on the part of one of the spouse is to injure the other is an important factor though in doubtful cases the state of mind of the offending spouse would also be crucial.
Desertion in simple terms can also be considered as an act of abandoning a person. Thus it had been defined under Section 10(ib) of the Hindu Marriage Act 1955. It states that divorce can happen if the petitioner had been deserted by the respondent for a continuous period of two years immediately after preceding the presentation of the petition. Even if the spouse had left the home but still contacts the petitioner through emails or phone calls it cannot be considered as a ground of divorce or it could be stated that no desertion had taken place. However, if the respondent or the other spouse suddenly without any reasonable cause ceases to live with the petitioner or dismisses all the rights, obligations and duties tied with the marital bond, then the essence of the only intention which he had was to desert the partner in the marriage. Thus it could be a valid ground for divorce as well. Therefore in the case of Ashok Kumar Arora V. Prem Arora, AIR 1987 Del 255, it had been held that when one spouse separates himself/herself to bring cohabitation to an end the other is entitled to seek for a decree of divorce. In the case of Jyothi Pai v. P.N. Pratap Kumar Rai, AIR 1987 Kant 24, it had been held that the initial burden of proving discontinuation from the society without reasonable cause lies on the petitioner.
Conversion, as a ground for divorce, had been defined under Section 13(1)(ii) of the Hindu Marriage Act 1955. If one of the spouses within the matrimonial bond ceases to be a Hindu and converts into another religion then the very essence of the Hindu Marriage Act gets destroyed. As a result of which it is considered as a lawful ground of divorce. Therefore there had been such instances as well, there had been a case where the court held that a Hindu wife upon conversion to Islam, may present Islam to her husband and on the husband’s failure to accept the same, the marriage would stand dissolved.
The word insanity had been derived from the word insane which means not in a correct state of mind. Thus a person who is not able to understand the difference between right or wrong or who is unable to provide consent or to approve or disapprove the happenings around him cannot be considered as competent enough to tie himself or herself within the matrimonial bonds. Insanity had been defined under Section 13(1)(iii).
- Thus the articulation “mental disorder” implies dysfunctional behaviour, captured or deficient advancement of the brain, psychopathic confusion or some other issue or incapacity of the brain and incorporates schizophrenia;
- And similarly, the articulation psychopathic disorder implies a tenacious issue or incapacity of the brain (regardless of whether including sub-typicality of insight) which brings about strangely forceful or genuinely irresponsible conduct lead with respect to the other, and whether it requires or is susceptible to clinical treatment; thus when a person is suffering from such an unstable mental condition, he/ she can never perform their right and duties in a marriage, hence, it is also one of the most important grounds of divorce.
In the case of Ajitrai Shivprasad Mehta V. Bai Vasumati, AIR 1969 Guj 48, it has been held that when the mode of matrimonial relief is unsoundness of mind, it must be proved beyond a reasonable doubt so as to satisfy the court in every possible way.
Leprosy, otherwise called Hansen’s ailment, is a chronic infectious disease brought about by Mycobacterium leprae. The sickness essentially affects the skin, the fringe nerves, mucosal surfaces of the upper respiratory tract and the eyes. Thus it had been stated under Section 13(1)(iv) that a person whose spouse is suffering from a deadly, infectious, incurable disease known leprosy can sort a decree of divorce under this ground. In the case of Annapurna Devi v. Nabakishor Singh, AIR 1965 Ori 72, it had been held even if it’s not a disputed fact that the respondent is suffering from leprosy for 3 years or more immediately before filing the petition of divorce, the onus of proof lies on to the petitioner to establish that leprosy is virulent and incurable.
Venereal disease in simple terms is also known as the sexually transmitted disease. Under Section 13(1)(v) it can also be a ground of divorce. If one of the spouses is experiencing a serious incurable disease that is effectively transferable, a petition of divorce can be filed by the person. The explicitly transmitted illnesses like AIDS are accounted to be venereal disease. It had been held in the case of Birendra Kumar v. Hemlata Biswas, AIR 1921Cal. 459: ILR 48 Cal 283, where a wife is free from venereal disease, thus, it is cruelty on the part of the husband to compel her to intercourse.
A person may file a divorce under Section 13(1)(vi) if one of the spouses renounces all the worldly affairs by embracing religion or any other belief. Thus such a person attains a state of self-actualization as being defined by Maslow and wants to free himself from all worldly bonds, including from the bond of marriage. Thus when the person himself/herself doesn’t want to take the responsibility of marriage, ties, relationship, and family, it could also be considered as a basic ground for divorce.
Presumption of death
If an individual isn’t seen or heard alive by those who are required to ‘normally known about’ the individual for a persistent time of seven years, the individual is considered to be dead. The other spouse needs to file for divorce if he/she is keen on remarriage. Thus such a situation is also a ground of divorce as being stated under Section 13(1)(vii). In one of the cases, it had been held that where the near relatives assert that they had not heard of the husband for seven years the presumption of death under Section 108 of the Evidence Act should be drawn can also be considered as a ground for divorce.
Wife’s Special grounds of divorce
The wife also has some special rights such as:
If the husband has one or more wife living at the same time,
- If the husband has one or more wives living after the initiation of this Act, a wife may exhibit an appeal for divorce under cl. (I) of sub-sec. (2) of s. 13 of the Act. Just constraint on the right of a wife who applies for divorce under this provision is that the other wife ought to be alive at the hour of presentation of the petition independent of discoveries that the petitioner knew about the presence of the other wife and that the husband was not liable of cruelty.
- Postponement as leading an induction of approbation of or intrigue or lack of concern to a wedding incorrectly isn’t a proper thought for cases under Section 13(2)(i) of the Act. The right of divorce given to the wife by s.13(2)(i) doesn’t rely upon her behavior before the beginning of the Act. The presence of the first wife at the hour of execution of the subsequent marriage need not be built up by direct proof and that reality might be gathered from different realities demonstrated for the situation.
If the husband is guilty of rape, sodomy, and bestiality after the solemnization of marriage.
- Under s. 13(2)(ii) of the Act of a wife entitled is for a petition of divorce on the ground of rape, sodomy or bestiality submitted on her by the husband. Rape is additionally a criminal offense and characterized in Section 375 of the Indian Penal Code. A man is said to commit rape who had intercourse with a lady without wanting to, without her consent, or with her assent which is obtained by placing her in dread of death or of hurt. Thus when a wife gets to know that her husband did such an act, she has a special power to dissolve the marriage by letting him free.
- Sodomy is committed by an individual who has sexual intercourse with an individual from similar sex or with a creature or has non-coital carnal copulation with an individual from the contrary sex. Bestiality implies sexual association by a person against the request for nature with a creature.
Where a decree of maintenance under Section 18 of the Hindu Adoptions and Maintenance Act 1956, or a decree for maintenance of wife under Section 125, Cr PC 1973, has been passed against the spouse, the wife is qualified to present a petition for divorce which would be based on the fulfillment of two conditions of the divorce. In the first place, she was living separated, and besides, after passing of the order or decree, there had been no cohabitation between the husband and the wife for a time period of one year.
In some situations, the wife got married before attaining the age of 15. At such an age a little bride would have no understanding of what marriage actually means and the duties and obligations which are associated with it. Thus she has the right to revoke the marriage before the attainment of 18 years of age. Thus in such circumstances, the wife is being given the option to continue the marriage or to revoke the same.
However, in the case of Statham v. Statham, (1929) P 131, the court held that rape, sodomy, and acts of sexual perversion and alike must be pleaded and made out with precision and clarity. Some general allegations are not sufficient to get a decree of divorce.
Irretrievable breakdown of the Marriage
If the individuals, tied within the matrimonial bond feels that the marriage is not working out, then mutually it may give the right to both of them to stay and live life separately and happily without any botheration on either part. As there is no reasonable probability of staying together thus it gives both of them the opportunity to start their life as per their own wishes independently and separately.
- Irretrievable breakdown of the marriage may become an excuse where the married couples may always feel that little arguments are unreasonable as a result of which there is no probability of them staying together. Therefore, in my opinion, the process of divorce following the irretrievable breakdown of marriage theory is not justified.
- It may also result from sudden arbitrary unreasonable decisions.
- It sometimes happens based on temporary emotions such as anger, humiliation, etc. which a couple may go through during the heat of the argument.
- It fosters no communication procedure between the partners.
- It is not just the breakdown of marriage but it is also the wreckage of two united families at the time of marriage.
- If children are born out of that marriage when the parents ‘now’ think that there is no reasonable probability of staying together, such broken families could be a matter of stress for the child born out of the marriage as well.
Procedures of Divorce (Detailed study under the Hindu Marriage Act 1955)
Section 19 of the Hindu Marriage Act 1955 states about the court in which the petition of divorce should be presented. It also highlights the fact that every petition which is sought to have been presented under this Act should be presented to the district court within the local limits of the original ordinary civil jurisdiction. The petition can, therefore, be filed in:
- The place where the marriage was solemnized.
- The place where the respondent resides during filing of the petition.
- The place where the couple last resided together.
- The place where the wife of the petitioner last resided.
- If the respondent is residing at a place which is outside territorial limits to which the act extends or not had been heard of being alive for a period of 7 years, then the petitioner could file a petition depending upon the places where he or she is presently residing.
Section 20 states about the contents and verification of the petition.
- Section 20 sub-section 1 states that every petition of divorce presented under the Hindu Marriage Act 1955 should be distinctly examined based on the nature and facts of the case depending on which the claim of relief is decided.
- Section 20 sub-section 2 states that the statement contained in every petition under this Act should be verified either by the petitioner or any other competent individual in a manner presented by the law for the verification of the plaints and during hearing it may also be used as evidence.
Section 21A states that:
Clause (a) sub-section 1 of Section 21A states that where,
- (a) a petition under this Act has been exhibited to a district court having jurisdiction by the party involved with a marriage wanting for a decree for judicial separation as being stated under Section 10 or for a decree for divorce under Section13; and
- (b) another petition under this Act has been displayed from that point by the other party to the marriage praying for a decree of judicial separation under Section 10 or for a decree of divorce under Section 13 on any ground, regardless of whether in a similar district court or in an alternate or different district court, in a similar State or in an alternate or different state State,
- the petitions will be managed as indicated in sub-section (2).
Sub-section 2, states, for a situation where subsection (1) applies,
- (a) if the petitions are introduced to a similar district court, both the petitions will be attempted and heard together by that district court;
- (b) if the petitions are exhibited to some other different district courts, the petition which is being presented later will be moved to the district court in which the previous petition was introduced and both the petitions will be heard and discarded together by the district court in which the prior request was introduced.
- Sub-section 3, states, for a situation where condition (b) of sub-section (2) applies, the court or the Government, by and large, able under the Code of Civil Procedure, 1908 (5 of 1908), to move any suit or proceeding from the district court in which the later appeal has been presented to the district court in which the previous request is pending, will exercise its authority to move such later petition as though it had been enabled so to do under the said Code.
Section 21B states that firstly the trial of a petition shall be taken in with the interest of justice and it shall be taken day-to-day until the case is being concluded. Day-to-day all the necessary reasons for filing the divorce petition should be recorded. This is stated in Section 21B(1). Secondly, an attempt should be made to conclude the cases within a period of 6 months. Therefore the cases are to be dealt expeditiously as being stated under Section 21B(2). Thirdly in Section 21B(3) every appeal under the act should be dealt expeditiously as possible and should be tried to be concluded within the period of 3 months from the date on which notice of appeal had been served to the party.
Section 21C states that no document in this regard shall be admissible if it is not duly stamped or registered. Therefore Section 21C states about the documentary evidence.
Section 22 under this act states that all the proceedings under this Act should be conducted in a camera, and it is unlawful for anyone to print or publish the same. However, if any act happens contrary to the given provision then he or she shall also be punishable with a fine which shall extend to one thousand rupees. In this section the word ‘camera proceeding’ means that all the acts should only happen in the presence of the Judge, the concerned advocates of the two parties and the two parties i.e the petitioner and respondent themselves. Thus it is not an open court where one could be allowed.
Section 23 of the Hindu Marriage Act 1955, provides a bar to matrimonial relief. It explains the conditions under which the court would not be granting matrimonial relief.
- The conditions are as follows under sub-section 1 of Section 23:
- Clause (a) of sub-section of Section 23 states that the petitioner needs to show that he or she is not taking advantage of his own wrong. For example, if the petitioner had been constantly torturing the respondent, and the respondent also had shown some act of cruelty against the petitioner then the petition cannot want relief on the ground of cruelty committed by the respondent as it was the petitioner who started the act of torturing and teasing the respondent. Hence in this regard, the Court holds up the principle of equity that one who comes for equity must come with clean hands.
- Clause (b) of sub-section 1 of Section 23 states that a petition which is being filed on the ground of adultery has not in any manner been an accessory to connived at or condoned the acts complained off. Thus ‘accessory’ in the regard means aiding or assisting or actively participating in the offense complained against. If this ground of participation by the petitioner is being established then the court would grant no relief. Similarly ‘connivance implies a willing consent to a conjugal offense. Therefore if one spouse is willingly, intentionally or recklessly allowing the conjugal offense then no relief could be given by the court. Lastly, condonation means to forgive. Thus, if there is a reinstatement of the spouse who had suffered the matrimonial offense, then the court will see that such there are chances of forgiveness and smooth functioning of a relationship, as a result, no relief would be given.
- Clause (bb) of sub-section 1 of Section 23 if the divorce is given on the ground of mutual consent and that consent had not been derived by any fraud, force or undue influence, then such a relationship would also be barred from any sort of relief.
- Clause (c) of subsection 1of Section 23 states about collusion. Thus it holds the view that if two parties within the marital ties had consented for divorce but in order to get the relief they trick the court, therefore in such circumstances also relief will not be given.
- Clause (d) of sub-section 1 of Section 23 states that if there is an unreasonable, or improper delay for filing a decree for divorce or for judicial separation then relief also cannot be given.
- As per Section 23(2), it is the duty of the court to look into the nature and circumstances of the case and try every possible endeavor to bring about a reconciliation between the parties.
- If the court thinks fit and if the parties desire, the court may adjourn the proceeding for a reasonable period of 15 days and refer the matter to any person as named by the parties or on behalf of the person selected by the court if the parties fail to name them with directions to report the court. This had been stated under sub-section 3 of Section 23 of the Hindu Marriage Act 1955.
- Section 23 sub-section 4 states that if the marriage is dissolved by the decree of divorce then the copy of the decree passed by the court shall be given free of cost to both the parties.
Chart showing the Procedure Of Divorce Under Mutual Consent
Procedure of divorce under mutual consent
First, the petition for divorce has to be filed.
Initially, a joint petition in case of mutual divorce is filed for dissolution of marriage which is being presented in the family court by both the parties on the ground expressing that they have not had the option to live respectively and have commonly consented to end the marriage or they have been living independently separate for a time of one year or more.
This petition will, at that point, be marked and by both the gatherings.
Secondly, appearing in court and examination of the documents takes place.
Both parties should be present in the family court after the presenting or filing the petition.
The parties would exhibit their legal advisors.
The court would observe the petition and examine the documents critically.
The court may try to remove the differences be that as it may fit the court, however, if situations don’t normalize the court may continue with the proceedings.
Thirdly, an order is passed for recording the statements on oath.
The parties’ statements are recorded on oath after the petition is scrutinized by the court.
After the first motion is passed a period of six months is given before passing the second motion.
When the statement of the parties are recorded, the first motion is passed by the court. After this, a six months time span is given to both the parties to a separation before they can record the subsequent movement.
This maximum time period extends up to 18 months for filing the next motion from the date in which the divorce petition was filed in the family court.
Second motion and final hearing
When the parties have chosen to go further with the procedures and show up for the subsequent motion, they can continue with the last hearings.
This incorporates parties showing up and recording of explanations and statements under the Family Court.
Recently the Supreme Court has held that the 6 months time period which is given to the parties can be turned down at the choice of the court.
Consequently, the parties who have really settled their disparities including divorce settlement, child custody or some other pending issues between the gatherings, this a half year it tends to be postponed off. Even if the court feels that the period of 6 months will increase their sufferings then the court can waive the same.
Decree of divorce
In a mutual divorce, the two parties are more likely to give assent and there will not be any differences in opinions with disputes in regards to a divorce settlement, guardianship of a child, maintenance, property, and so on.
Along these lines, there should be finished understanding between the spouses for an official choice on the dissolution of a marriage.
Types of Divorce Petitions
Divorce with Mutual Consent
Divorce by shared assent is when both parties agree to have a peaceful divorce. It is a basic method for leaving the marriage and dissolving the marriage legitimately. The primary part of such a separation is the mutual consent or the shared assent of the husband and wife. There are sure viewpoints to which the Husband and Wife need to arrive at a consensus. The first is the provision of maintenance issues. According to Law, there is no concept of minimum or maximum maintenance. It could be any figure. Another thought is child custody. Both parties need to go to an agreement over these two subjects. Section 13(B) specifically talks about divorce by mutual consent. Section 13B(2) also gives the transitional time period of 6 to 18 months as a period of interregnum which is intended to give time and opportunity to the parties. Divorce by common assent can be documented when the couple have been living independently for a time period of 1 year and have commonly chosen to end their marriage. A joint divorce petition is recorded by the separating couple in the court. Thus in this form of a divorce petition, the terms and conditions of such a separation are decided amicably and mutually through proper coordination and discussion.
Divorce without mutual consent
When a divorce is happening without mutual consent then as per Section 13(1) of the Hindu Marriage Act 1955 divorce is bound to happen based on the grounds previously discussed such as:
- If a marriage is solemnized between two-person, and while staying within the marital bonds either of the party had sexual intercourse with another person who is not the legally married husband/ wife of the other person. Thus adultery could be a ground of divorce without mutual consent.
- After solemnization of marriage if either of the parties treats the other party with cruelty then it is also one of the utmost grounds of one-sided separation.
- If one of the parties within the bond of marriage deserts the other spouse without any reasonable grounds then also divorce without consent could be sorted out.
- Conversion of the religion of either, of the spouses changes the very essence of the Hindu Marriage, as well its rights and obligations under the Hindu Marriage Act 1955, it is also a valid ground of divorce without Mutual consent.
- If any of the spouses are suffering from mental illness then it could also be a valid ground of divorce. The rationale behind this is, if a person is unable to understand its surroundings etc, then duties and obligations would he fulfill in marriage.
- Leprosy, Venereal disease in a communicable form is also formed a valid ground of divorce without mutual consent.
- If any of the parties renounced the world by entering into a religious belief.
- If a person is not seen to heard and seen about for a period of 7 years then the person is believed to be dead, on that a belief the other spouse could file a petition for divorce.
- Along with the above mentioned grounds, few other grounds could also be a reason for divorce without mutual consent:
- There has been no resumption of living together as between the parties to the marriage for a period one year or upwards after the passing of a pronouncement for legal detachment in a procedure to which they were parties.
- There has been no restitution of conjugal rights as between the parties to the marriage for a time of one year or upwards after the death of a pronouncement for compensation of matrimonial rights in a procedure to which they were parties.
A divorce notice is a legal notice which is sent by one of the spouses who wants to dissolve the marriage and end the relationship based on any of the ground which he/she is going through. It is sent to the other spouse being the respondent. Further, a divorce notice is a communication showing his/her intention to go through legal proceeding against the other party. Thus it is a formal setup or a communication warning them of legal action.
A few of the cases are as follows:
In the case of Amardeep Singh v. Harveen Kaur, the Supreme Court had held that a 6 Months Waiting Period for Divorce by Mutual Consent is not mandatory.
- In a significant improvement to Hindu Law administering divorce by common assent, the Supreme Court decided that the time of interregnum or cooling time of 6- 18 months which is given under Section 13B(2) of the Hindu Marriage Act, 1955 isn’t required mandatorily however this can be postponed off in specific situations or circumstances.
- The Court additionally saw that in perspective on this, Courts can practice its attentiveness relying upon the realities and conditions of each case and postpone off the stipulated period where there is no chance of continuing living together and alternative rehabilitation.
- Right now, parties have been living independently since 2008. In 2017 the parties showed up at a settlement and applied for divorce by shared assent/ consent. For the situation, the gatherings supplicated the Court to forgo off the time of 6 months as stated under Section 13B(2) of the Hindu marriage follow up on the ground that they have been living independently for the last 8 years and there is no chance of their living together again.
In the case of Mrs. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes (Bombay High Court), the court held that Lodging false case under Section 498A of IPC is Cruelty and Ground for Divorce.
- For the situation, the Appellant wife offered against Family Court’s order whereby the Family Court had conceded Respondent’s application for dissolution of marriage.
- The Bombay High Court expelled the intrigue and refused to interfere with the Family Court’s structure in permitting the Petition for divorce of the spouse on the ground of ‘cruelty’.
- The Court noted for the situation that during an assessment, the wife had conceded in her oath that she had held up an FIR with the Kherwadi Police Station, Mumbai, against her significant other under Section 498-A and 406 of the Indian Penal Code, 1860. The Appellant wife had likewise conceded for the situation that she had documented the Criminal Complaint so as to bring back her husband to their wedding home.
- In perspective on the previously mentioned, the Court noticed that if the Criminal Complaint documented by the appealing wife against her husband was bogus and was recorded uniquely to bring back her better half and resulting to which he was captured and was in prison for around 7 days, it would establish a clear case of cruelty by the wife on her husband.
In the case of Balveer Singh v. Harjeet Kaur (Uttarakhand High Court), the court held that the principle res judicata is not applicable on the subsequent suit under Section 13 of the Hindu Marriage Act
- In the case, the Appellant had documented a request under Section 13-A of the Hindu Marriage Act, 1955 looking for a dissolution of the marriage between the parties. The fundamental issue that sprung up under the watchful eye of the High Court was whether the suit being referred to would be banned by Section 11 of Code of Civil Procedure in perspective on the way that the procedures under Section 9 of the Hindu Marriage Act, 1955 (compensation of matrimonial rights) stood to decide? Section 11 of Code of Civil Procedure articulates that no Court should attempt any suit or “issue” in which the issue legitimately and significantly in issue has been straightforwardly and considerably decided in a conventional suit.
- While choosing this issue, the High Court alluded to the impugned provisions and mentioned the following key objective facts for the situation: That on a straightforward perusing of Section 9 of the Hindu Marriage Act, 1955, it has wholly an alternate reason. The motivation behind Section 9 of the Hindu Marriage Act, 1955 is to meet a possibility. It manages a circumstance where a wedded couple for no legitimate explanation is pulling back himself from releasing the commitments connected to the foundation of marriage, which on account of one of them is endeavored to be settled together. The award of the compensation is dependent upon the fulfillment being built up of non-meeting of the wedding commitments.
- That if both the arrangements if are investigated agreeably, the governing body in the entirety of its astuteness had given that the two areas, for example, Section 9 of the Hindu Marriage Act, 1955 and Section 13-A of Hindu Marriage Act, 1955 are confined to meet a different arrangement of possibilities. In this manner, both the arrangements are dissimilar to each other one expects to unite family and the other is a legal procedure to isolate the family.
- The High Court opined that procedures would not pull in Section 11 of Code of Civil Procedure to make a Bar in a recording of a consequent suit under both of the arrangements under Section 9 of the Hindu Marriage Act, 1955or Section 13-A of Hindu Marriage Act, 1955.
- On the off chance that Section 9 of the Hindu Marriage Act, 1955 is either announced or expelled, it won’t remove a privilege of involved with document Section 13-A of Hindu Marriage Act, 1955 for the dissolution of marriage at any ensuing stage.
Alternative Reliefs In Divorce Proceedings
The grounds for divorce and mutual separation are almost the same. Therefore they could use its discretion for not passing a decree for divorce straight away even if the divorce proceeding had been initiated under Section 13(A) of the Hindu Marriage Act 1955. Instead, the court may pass a decree for judicial separation. Therefore the law always keeps hope and tries to make the last attempt to bring the parties back together by solving the disputes between them. However, there can be no alternate relief or attempt by the court for the parties if the proceedings of divorce are being made on the grounds of conversion, renunciation and on the belief of being dead as the other party didn’t return for seven years.
The phrase “Incredible India” is really true to itself. Each and every culture, religion, personal laws, codified laws amuses the society and its upbringing. The change in Hindu society and acceptance of the change in the dynamic society is a matter of immense pleasure and pride being an Indian. Previously the divorce concept was not accepted and it was considered that a girl is bound to adjust and compromise. But through the birth of Hindu Marriage Act 1955, gradually the concept of divorce and therefore the relevant provision as per the needs of the dynamic society, was also established. Hence staying in an abusive marriage is a curtailment of the basic fundamental rights like Right to live peacefully, freedom of speech and expression, etc. Hence lastly it is only expected from the people that they don’t misuse these powers given by the law to them rather they should uphold the laws and human emotions of love, loyalty, trust and kindness.
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The whole world is currently passing through a period of very serious crisis. Normally, when a natural crisis strikes, it is limited to a few countries or states. However, this time, the calamity is such that it has put all of mankind under crisis. World Wars 1 and 2 did not impact as many countries as have been affected by corona today. Due to this , people are staying at their homes and must be facing matrimonial issues related to their relationships ( be it husband or wife) .
So , to tackle such situation in a professional way along with protecting the rights of each other( Husband & Wife ) and to follow the correct procedure for the benefit of the each other , I would like to inform you guys that I m 24*7 available for your help . Feel free to reach me regarding your matrimonial matters .
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( DIVORCE LAWS SPECIALIST)
SUPREME COURT OF INDIA & HIGH COURTS
MOB- 8077359032 , 9643139991.
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