Table of Contents
The rate of divorce has been increasing in India and more so in the last few years. As more strained couples resort to the legal machinery with matrimonial and divorce queries, let us have a glimpse into the provisions of divorce specifically related to the Civil Procedure Code, 1908. To understand this topic, we have to first look at the set of the procedure for filing a petition or an application before a competent court or competent authority which is in general called a matrimonial petition. Under Hindu Marriage Act,1955, Section 21 provides that all proceedings shall be regulated as far as may be, by Code of Civil Procedure,1908. And the High Court has the authority to set rules for any matters under this Act.
Code of Civil Procedure also sets procedures related to this. In this article, we are going to see, how a lawsuit is instituted, by whom and where; what are the remedies available to the aggrieved party; how to challenge the court order and where; and how the decision given by the respected court is implemented or executed.
Personal laws governing divorce
In India, every religion has its own personal laws relating to marriage. The Hindus, Buddhists, Sikhs, and Jains are governed as per the Hindu Marriage Act, 1955. And Muslims are governed as per the Muslim Marriage Act, 1939. Parsis are governed as per their Parsi Marriage And Divorce Act,1936. And Christians are governed as per the Indian Divorce Act, 1869. And in every Act, the general definition of Divorce is “A dissolution of marriage’’.
Order XXIII A of the Code Of Civil Procedure, 1908 is applied for matters concerning family suits or proceedings. Every petition under this Act shall be presented before the district court (Family court) within the local limits;
- Where marriage was solemnized,
- Where respondent resides at the time of the filing of the petition,
- The parties to the marriage last resided together,
3-A. In case the wife is the petitioner, where she is residing on the date of presentation of the petition,
4. the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for seven years or more by those persons who would naturally have heard of him if he were alive.
It is pertinent to mention Section 19 of the Hindu Marriage Act, which enables both parties for filing the petition at their convenience. Court has jurisdiction to deal with those cases where marriage is solemnized at a place within the municipal limit and the party resides there only, and the case can’t be transferred to the district court on the ground that the husband resides in another municipal limit.
Grounds of divorce
The grounds of Divorce differ in different personal laws. Let us look at the grounds in Section 13 under The Hindu Marriage Act,1955:-
Adultery means the consensual sexual intercourse between the married person and another, whether married or unmarried.
In Joseph Shine V. Union of India, 2018, wherein the constitutionality of Section 497 of IPC read with Section 198 of Cr.P.C. was challenged. It was held that the provision for adultery was arbitrary and discriminatory on the basis of gender and embarked that such law demolishes the dignity of women.
Cruelty means the desire to cause others to suffer, in modern times the concept of cruelty also includes mentally before it only physical activities that cause others to suffer. For example Demand of Dowry, Impotency, the birth of a child, threat to commit suicide, drunkenness, etc.
In Pravin Mehta V. Indrajeet Mehta, the respondent filed petitions seeking divorce on grounds of cruelty. The Appellant was suffering from some ailment, and the respondent took his wife for regular check-ups and treatment. However, the appellant was not interested in taking any medical treatment, because of which her state continued to deteriorate and she suffered from an asthmatic attack. Respondent had made many attempts to provide her best medical treatment but all his attempts failed. Therefore, he applied for dissolution of marriage on grounds of cruelty. The same was granted by the High Court.
Desertion means the repudiation of all the duties and obligations of marriage toward the partner without any reasonable cause and the consent of the other spouse.
In Bipin Chandra V. Prabhavati AIR 1957 SC 176. the appellant left for England on business, and on his return to India discovered that his wife had been having amours correspondence with other males, appellant sent a notice to the respondent through his lawyer and instituted the suit for divorce under Hindu Marriage Act on the ground that the respondent had been in desertion without reasonable cause and his consent for over four years.
When one of the spouses converts his/her religion from Hindu to any other religion eg., Islam, Christianity, etc.
In Suresh Babu V/s V.P Leela 2006 a husband converted to Islam and the wife filed a petition for divorce on this ground. The court held the conversion to another religion for matrimonial purposes was wrong and a ground for divorce under Hindu Marriage Act,1955.
Two requirements must be followed for insanity as the ground of divorce
- Respondent is unsound mind.
- Respondent suffering from continuous mental disorder to such extent that petitioner cannot live with the respondent.
In Vinita Saxena vs Pankaj Pandit, the petitioner filed a case for divorce from the respondent on the ground that the respondent was suffering from a mental disorder disease. Here, the court granted a divorce on the grounds of the insanity of the husband.
Presumption of death
A person is presumed to be dead if he/ she has not been heard of being alive for the last seven years. The burden of proof is on the petitioner that the respondent is not known for the last seven years under matrimonial bond.
Illustration: A wife of B was missing for the last ten years and her husband B does not get any information about her being alive or dead. Here, B can approach the court and ask for a divorce.
According to the Hindu Marriage Act, venereal disease is a ground for divorce.
Illustration: A husband of B suffers from an incurable disease, there is also the chance of getting infected by that disease if B lives with A. Here, B seeks for dissolution of marriage before the court.
It means that one of the spouses renounces the world and starts following the path of god. In this case who renounces the world is considered as civilly dead.
Illustration: A and B are a married couple. One day A decides to renunciate the world. Here, B has a right to seek for dissolution of marriage before the court.
The ground of divorce as per The Dissolution of Muslim Marriage Act, 1939
Under Section 2 of the Act, a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of marriage, if –
- Whereabouts the person is not known for more than seven years.
- Husband has failed to provide her maintenance for a period of more than two years.
- The husband has been sentenced to imprisonment for a period of seven years or upwards.
- The husband has failed to perform his marital obligations for a period of more than seven years.
- The husband was impotent at the time of the marriage.
- The husband has been insane for more than two years.
- The husband was suffering from a vulnerable disease.
- Her husband treats her with cruelty.
Talaq-ul-Biaddat or Triple Talaq was held unconstitutional under Article 14 read with Article 13 (1) in the case of Shayara Banu V. Union Of India & others 2017.
The court concluded that the 1937 Act is void to the extent that it recognizes and enforces triple talaq. As per the order of SC, the Government has to make a law to legalize and decriminalize triple talaq. In 2019 The Muslim Women ( Protection of Rights on Marriage) Act was enacted to protect the rights of married Muslim women to prohibit divorce by pronouncing talaq by their husband.
According to ordinance Section 4, says that, if any husband pronounces triple talaq to his wife, shall be punished with 3 years imprisonment and a fine.
According to Section 3 pronouncement of talaq from Muslim husband to his wife, by words, either spoken or written or in any electronic form or in any other manner is void and illegal.
Grounds of divorce for Christian
According to the Section 10A of the Indian Divorce Act, Christian can get a divorce in two ways
- Mutual divorce: Both husband and wife, if living apart from each other for the last two years then they can file for divorce before the District Court.
- Contested Divorce: it can be filed on the following grounds-
- Unsound mind for the last 2 years.
- Deserted for the last two years.
- Any of the spouses are heard of being alive for seven years or more.
Grounds of divorce for Parsi
According to the Parsi Marriage And Divorce Act, 1936
- According to Section 30 if it becomes impossible to consummate the marriage because of natural circumstances.
- According to Section 31 if any of the spouses has not heard of another spouse for the last seven years, then the marriage can be dissolved.
- Section 32 lays down the grounds of Divorce:
- When one of the spouses completely denies the marriage within one year of marriage.
- When any spouse imprisoned for more than seven years and one year of imprisonment has passed, then the spouse can apply for divorce.
- When any of the spouses has deserted for more than 2 years or has converted his/her religions.
- If at the time of marriage, any secret is kept from the other spouse that another party is unsound. The other spouse can apply for divorce within a period of three years from the date of marriage.
- If the woman was pregnant at the time of the marriage. But it should be applied within a period of two years of marriage and also, the couple should not have had any marital intercourse.
- If any of the spouses are treated with cruelty and suffering from venereal disease, within two years.
According to Section 32B, mutual consent cannot be obtained from coercion and fraud. Sections 19 and 20 of The Parsi Marriage And Divorce Act, 1936 says that Parsi can initiate the proceeding of divorce only in special courts presided by Parsi’s officials and also necessary to register in a registered office.
Contents in matrimonial petitions
Under Section 20(1) of HMA, every petition shall state the nature of the case, and under Section 3(a) of The Dissolution of Muslim Marriage Act. The High Court has also framed various rules regarding the filing of petitions. A petition under the act shall be accompanied by an affidavit to the effect that the petitioner was married to the respondent. Along with this, it is to be kept in mind that the petitions are also in correspondence with Order VII, rule 1 of CPC.
Content of a matrimonial petition:
- The place and date of marriage.
- The religion of couples.
- Name, status, and domicile of spouses before the marriage.
- Address of the parties where they reside at the time of the filing of the petition.
Efforts to make mediation and conciliation in divorce
Alternative dispute resolution provides for a legal structure for solving a legal issue between the parties. In the process of mediation, a mediator is nominated who helps the parties to reach a settlement in dispute, generating options to solve the dispute and emphasizing that it is the parties’ own responsibility for making a decision that affects them; without imposing any terms of settlement on either party. Section 89 of CPC states that an alternative dispute resolution mechanism is to be followed in the case where the possibility of settlement is there.
In Section 23 (2) and (3) of HMA, the court directs that efforts of reconciliation must be made between the parties seeking a divorce.
Section 9 of the Family Court Act, 1984 states that it is the duty of the family court to make an effort for mediation.-
In every suit or proceeding, at first, an instance where there is a possibility of settlement, the court shall try for reconciliation. And at any stage of the proceeding, it appears to the Family Court that there is a reasonable possibility for settlement, the court may adjourn the proceeding for a period of time.
If reconciliation cannot be achieved, a party seeking divorce must give notice to the spouse stating that you are taking legal steps to end this marriage. Legal notice for divorcing will bring clarity to the other spouse about the intention to end the marriage, future expectations related to finance, alimony, custody of children, etc.
- Address proof of husband and wife.
- Marriage certificate.
- Four passport-sized photographs of the marriage of husband and wife.
- Evidence proving that the husband and wife have been living apart from each other for the last 1 year.
- Evidence stating that failed in reconciliation.
- Income statement of last 2-3 years.
- Details of the profession and present payment
- Information relating to family background.
- Details of properties and assets owned.
Validity of foreign decree of divorce in India
One question that always strikes one’s mind is “How foreign court pass a decree of divorce with regard to a Hindu couple married in India?”
The answer to this question is that Section 1 of the Hindu Marriage Act,1955 says that the Act extends to the whole of India except the state of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to Which this Act extends who are outside the said territories.
It is for this reason that Hindus married as per the Hindu Rights in India, although settled abroad, are required to follow the proceeding of divorce as per the Hindu Marriage Act,1955.
Under Section 13 of CPC foreign judgment on divorce is valid in India, when such conditions are followed by the foreign court.
- When the judgment is given by the competent court- both parties residing in the same foreign country where the petition is instituted.
- When the case is decided on the merits of the divorce, to arrive at the conclusion.
- Proper notice is served to the other party.
- When the case is decided on the basis of natural justice.
- When the judgment is not obtained by fraud.
- And when there is no breach of any law in force in India.
This provision is well explained in Y. Narasimha Rao v. Y. Venkata Lakshmi by Supreme Court. Wherein a Hindu couple married in Tirupati, India started residing in the USA after marriage. The husband obtained a decree of dissolution of marriage from the Missouri court on the ground of irrevocable breakdown of the marriage by technically satisfying the requirement of residence of 90 days in the State of Missouri. However, the wife did not submit to the jurisdiction of the Missouri court and instead filed a case of bigamy against her husband. The matter reached the Supreme Court of India where the main issue was whether foreign divorce decrees can be enforced under Section 13 of CPC. The court held that:
- Court of competent jurisdiction would be one under which the parties are married and reside. Any other court would be without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.
- The decision must be given on the basis of merits, and the decision of the foreign court should be based on the grounds of divorce available in the Hindu Marriage Act, 1955.
- Refusal to recognize the law in India is covered by saying that the ground of divorce in the foreign decree is given under Hindu Marriage Act,1955.
- Foreign judgment was obtained as opposed to natural justice. Natural justice is the provision of a fair hearing.
- Where the foreign decree was obtained by fraud. Fraud at any stage spoils legal proceedings, fraud and law can’t co-exist.
Execution of foreign court decree
Execution of foreign court decree is provided under Section 44-A of CPC. In this context, it is read with Section 13 of CPC. Section 44-A(3) brings clarity that the court shall refuse the execution of any such decree, which falls within any exception specified in clauses (a) to (f) of section 13. The key pointers for the execution of such a decree are as follows:
- The requirements for enforcement of foreign judgments and decrees from other countries are provided in Section 44-A of the CPC.
- The judgment or decree must be from a superior court of other countries.
- The decree must be filed in the district court or a high court.
- A certified copy of the decree must be filed for execution.
- A certificate from the foreign court stating the extent to which the decrees have already been satisfied or adjusted must be filed.
The CPC provides that foreign judgment and decrees from reciprocating territories can be executed in India as decrees passed by the Indian courts. Thus, according to the limitation Act,1963 limitation period is:
- For the execution of a decree granting a mandatory injunction, three years from the date of the decree or the date fixed for performances;
- For the execution of any other decree, 12 years from the day on which the decree becomes enforceable.
Under the Limitation Act, judgment holders must file a suit within 3 years of the date of the foreign judgment or decree.
Section 151 of CPC for divorce matters
Section 151 of CPC is about the saving of inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. This clarifies that the said provision is used to achieve ends of justice. The use of inherent power indicates that the court may exercise the said power in order to prevail justice.
In Mayank Shrivastava V. Ritu Shrivastava, the revision application of waiving off of the mandatory 6 months period under Section 151 of CPC was filed. The applicant and respondent had filed an application under Section 13B of the Hindu Marriage Act for divorce by mutual consent. The case was adjourned for a period of 6 months with the advice to reconsider their decision. An application under Section 151 CPC was filed after the above order was passed for seeking a waiver of a mandatory period of 6 months. However, the stated application was rejected on the ground that it was not in accordance with the law.
The concept of divorce is to safeguard the rights of spouses and prevent them from any violation suffered during their marriage. It is believed that the stronger the bond between a family, the stronger is society to stay together. But increment in the cases of divorce or marital dispute is the reason for the breakdown of the family. Therefore it is important for the courts to take an equal approach towards matrimonial issues. The primary objective is to protect the sacred union of the parties. The provisions of the Family Court Act, and CPC would clearly show that the role of mediation/conciliation or settlement in the family affairs, and involving counselors to find out the possibility of settlement of their disputes is extremely important.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: