How to take divorce in India?

 

Copyright by Legal Ladder

Divorce

The word ‘Divorce’ originated from the Latin word Divortium, which means ‘to separate’.

The Hindu Marriage Act, 1955 defines ↴

“Divorce as a Dissolution of Marriage”.

The process of ending a marriage or marital partnership is known as divorce. Divorce usually implies the cancellation of the legal duties and responsibilities of marriage as per the law of the land.

Purpose of the Divorce ↴

The purpose of divorce is to punish the guilty party while simultaneously protecting the innocent or loyal party bound by matrimonial connections.

The basic purpose of marriage is to produce a joyful, cooperative partnership between two people; yet, if this goal cannot be realized, there is no value in continuing the relationship. 

As a result, the concept of divorce arose in order for people who were previously bound by married relationships to live happy, autonomous, and independent lives.

Conditions for a Hindu Marriage ↴

As per Section-5 of The Hindu Marriage Act, 1955

A marriage may be solemnized between two Hindus, if the following conditions are fulfilled, namely:

1. Neither party has a spouse living at the time of the marriage;

2. At the time of the marriage, neither party:

1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or 

2. though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such as extent as to be unfit for marriage and the procreation of children; or

3. has been subject to recurrent attacks of insanity or epilepsy;

 

3. The bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage; 

4. The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

 

5. The parties are not sapindas of each other, unless the custom or usage governing each of them permits a marriage between the two.

Void marriage

A void marriage is no marriage at all, the court considers a void marriage as if the marriage never existed.

Section-11 of the Hindu Marriage Act,1955 defines void marriage as;

Any marriage solemnized after the commencement of this Act, shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clause (i), (iv) and (v) of Section-5. 

Voidable Marriage

A voidable marriage is binding and valid until the decree from the court is passed for annulling it.

Section 12 of the Hindu Marriage Act,1955 defines Voidable marriages as;

(1) Any marriage solemnized; whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely;-

1. that the marriage has not been consummated owing to the impotence of the respondent; or

2. that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

 

3. that the consent of the petitioner, or where the consent of the guardian in   marriage of the petitioner was required under section 5 as it stood immediately  before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (Act no.2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of ceremony or as to any material fact or circumstance concerning the respondent; or

 

4. that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- 

1. on the ground specified in clause (c) of sub-section (1) shall be entertained if:

(i) the petition presented more than one year after the force had ceased to operate, or, as the case may be, the fraud had been discovered; or 

(ii) the petitioner has, with his for her full consent, lived with the party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

2. on the ground specified in clause (d) of sub-section (1) shall be entertained unless the Court is satisfied:

1. that the petitioner was at the time of the marriage ignorant of the facts  alleged;

2. that the proceedings have been instituted in the case of marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriage solemnized after such commencement within one year from the date of marriage; and

3. that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

Grounds for Divorce

If one of these conditions is contravened or not fulfilled then it could also be a ground for divorce. ↴

As per Section-13 of The Hindu Marriage Act, 1955

1. Adultery

If another spouse had voluntary sexual intercourse with any person other than his or her spouse after solemnization of marriage.

[Adultery can be defined as consensual sexual intercourse between a married person and a person of the opposite sex other than the spouse, during the subsistence of marriage.]

2. Cruelty

If after the solemnization of marriage, one of the spouses treats the other with cruelty.

The expression "cruelty" comprehends both physical and mental cruelty. Deciding whether the act, conduct, or attitude of the behavior of one spouse towards the other amounts to cruel treatment has to be measured by the resultant danger or apprehension of the victim.

3. Desertion

If the other party has deserted the spouse for a continuous period of 2 years without any reasonable ground immediately preceding the presentation of the petition.

Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of desertion in order that it may furnish ground for relief are: 

(1) The factum (a statement of the facts of a case) of separation,

(2) the intention to bring cohabitation permanently to end-animus deserendi,

(3) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period. [Adhyatma Bhattar Alwar v. Adhayatma Bhattar Sridevi, AIR 2002 SC 88)]

4. Conversion

If one of the spouses has ceased to be a Hindu, any of the spouses may file a case of divorce on the ground that the respondent "has ceased to be Hindu by conversion to another religion". 

Change of religion does not ipso facto dissolve the marriage performed under the Hindu Marriage Act between two Hindus.
 
A decree for divorce can be obtained by a petitioner where the other party has ceased to be a Hindu by conversion to another religion, e.g., Islam, Christianity, Judaism, or Zoroastrianism.

5. Insanity

If the other party is of unsound mind or has been suffering continuously from a mental disorder of such a kind and to such an extent that the petitioner cannot live with the other party. 

6. Leprosy

If the other party has been suffering from a virulent and incurable form of leprosy. 

7. Venereal disease

If the other party has been suffering from venereal disease in a communicable form. 

8. Renounced the world

If the other spouse has renounced the world by entering any religious order.

9. Presumption of death

If the other spouse has not been heard of as being alive for a period of seven years or more by those persons who would have heard of it had that party been alive.

Special divorce grounds for the wife ↴

These grounds are given under section-13(2) of the Hindu Marriage Act,1955

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,- 

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case, the other wife is alive at the time of presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy, or [bestiality; or]

(iii) that in a suit under section 18 of the Hindu Adoption and Maintenance Act, 1956 (Act no.78 of 1956), or in a proceeding under section 125 of the Criminal Procedure Code, 1973 (Act no.2 of 1974) or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (Act no.5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; 
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age but before attaining the age of eighteen years. 
Explanation. - This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (Act no.68 of 1976).

Time Bar regarding divorce ↴

As per Section-14 of The Hindu Marriage Act, 1955

No petition for divorce to be presented within one year of marriage.

Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce unless at the date of presentation of the petition one year has elapsed since the date of the marriage.

Mutual Consent Divorce ↴

Section-13(b) of the Hindu Marriage Act,1955 defines divorce by mutual consent, for which,

1. The couple must not be living together for at least one year and there should not be cohabitation between them.
2. They have not been able to live together, and
3. They have mutually agreed to live separately.

Divorce by mutual consent [Section-13(b) of the Hindu Marriage Act,1955]

(1) Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (Act no.68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) on the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments of the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

How to File for Divorce in India? ↴

The Code of Civil Procedure(CPC),1908, governs the procedure for filing a divorce lawsuit in India.

If a couple wants a divorce, they should follow these actions:

1. The couple will need to employ a lawyer first so that they can explain everything to them.

2. The lawyer will file a petition in court. 

3. Following that, a copy of the petition will be delivered to the spouse.

4. Either the spouse will agree to the divorce or will contest it.

5. Circumstances of the case will decide the completion of the divorce procedure.

6. In order to get a divorce by mutual consent, the parties must show that they have been living separately for at least a year.

7. The parties will be given a six-month period to reconsider their divorce.

8. If the parties will remain in agreement that they desire a divorce after the six-month term has passed, the court can issue a divorce judgement. 

Documents required to file a divorce petition: ↴

1. Address proof of both husband and wife.

2. Marriage certificate.

3. Passport size photographs of both as per the guidance of the lawyer.

4. Evidence of living separately.

5. Evidence demonstrating that attempts to reconcile were made but were unsuccessful.

6. Income tax returns over the previous two to three years.

7. Information of the petitioner’s property and details of family background.

The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.

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