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HOW TO FILE FOR A DIVORCE

2018-07-25 16:35:55
HOW TO FILE FOR A DIVORCE

According to Hindu Marriage Act, 1955, there are three speculations under which the divorce can be obtained. These theories in particular are given below,

·         Fault theory,

·         Mutual consent theory, &

·         Irretrievable breakdown of marriage theory.

The Hindu Marriage Act, 1955 initially, based divorce in light of the fault theory, and revered nine fault grounds in Section 13(1) on which either the husband or wife could sue for separation. The section 13(2) portrays two fault grounds on which the wife alone could file for the divorce.

Section-13 of The Hindu Marriage Act,1955

Divorce. —

1.      Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

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

 

a)      has, after the solemnization of the marriage, treated the petitioner with cruelty; or

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

                              ii.            has ceased to be a Hindu by conversion to another religion; or

                            iii.            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.

Explanation .—In this clause,

a)      the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

b)      the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

 

                            iv.             has been suffering from a virulent and incurable form of leprosy; or

                              v.            has been suffering from venereal disease in a communicable form; or

                            vi.            has renounced the world by entering any religious order; or

                             vii.            has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

 

 

 [Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

        i.            that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

      ii.            that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) 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 the presentation of the petition; or

      ii.            that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or (bestiality; or)

    iii.            that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (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; or

    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 that 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 (68 of 1976)*.] State Amendment Uttar Pradesh: In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13—

        i.            in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following clause, namely:(1a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or”, and “(viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and—

a)      a period of two years has elapsed since the passing of such decree, or

b)      the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or

      ii.            for clause (viii) (since repealed in the principal Act) substitute (and shall be deemed to have been substituted) following clause, namely:

 

[Vide Uttar Pradesh Act 13 of 1962, sec. 2 (w.e.f. 7-11-1962)].

 

        i.            Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty; Maya Devi vs. Jagdish Prasad, AIR 2007 SC 1426.

 

      ii.            Making false allegations against husband of having illicit relationship and extramarital affairs by wife in her written statement constitute mental cruelty of such nature that husband can, not be reasonably asked to live with wife. Husband is entitled to decree of divorce; Sadhana Srivastava vs. Arvind Kumar Srivastava, AIR 2006 All 7.

 

    iii.            The expression “Cruelty” as envisaged under section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Intention to be cruel is not an essential element of cruelty as envisaged under section 13 (1) (ia) of the Act. It is sufficient that if the cruelty is of such type that it becomes impossible for spouses to live together; Neelu Kohli vs. Naveen Kohli, AIR 2004.

 

    iv.            The leveling of false allegation by one spouse about the other having alleged illicit relations with different persons outside wedlock amounted to mental cruelty; Jai Dayal vs. Shakuntala Devi, AIR 2004 Del 39.

 

      v.            Mental disorder for relief under section 13 (1) (iii) should be of such a degree that it is impossible to lead normal marital life or it is unreasonable to expect a person to put up with a spouse with such condition; B.N. Panduranga Shet vs. S.N. Vijayalaxmi, AIR 2003 Karn 357.

 

    vi.            Due to the criminal complaint filed by the wife, the husband remained in jail for 63 days and also his father and brother for 20 to 25 days. Therefore, even though the case of cruelty may not have been proved but as the facts emerging from the record clearly indicate that the living of the two as husband and wife would not only be difficult but impossible, the court has no alternative but to grant a decree of divorce; Poonam Gupta vs. Ghanshyam Gupta, AIR 2003 All 51.

 

 

  vii.            Unless the entire genesis of the quarrels in the course of which, one of the spouses holds out a threat to take his or her life is placed before the court, the very fact that some threat in the course of a quarrel is held out, cannot be viewed in isolation or construed as mental cruelty to the other spouse; Nalini Sunder vs. G.V. Sundar, AIR 2003 Kar 86.

 

viii.            A husband cannot ask his wife that he does not like her company, but she can or should stay with other members of the family in matrimonial home. Such an attitude is cruelty in itself on the part of the husband; Yudhishter Singh vs. Sarita, AIR 2002 Raj 382.

 

    ix.            Removal of mangalsutra by wife at the instance of her husband does not amount to mental cruelty; S. Hanumantha Rao vs. S. Ramani, AIR 1999 SC 1318.

 

      x.            A threat to commit suicide by the wife amounts to infliction of mental cruelty on the husband but it should not be uttered in a domestic tiff; Pushpa Rani vs. Vijay Pal Singh, AIR 1994 All 220.

 

    xi.            Solitary instance of cruelty would not constitute cruelty so as to grant a decree for divorce rather the behavior of the other party has to be persistently and repeatedly treating the other spouse with such cruelty so as to cause a reasonable apprehension in the mind of the husband/wife that it will be harmful or injurious for him or her to live with the other party. The expression persistently” means continue firmly or obstinately and the expression repeatedly means to say or do over again; Vimlesh vs. Prakash Chand Sharma, AIR 1992 All 261.

 

In 1964, by an amendment, certain provisions of Section 13(1) were amended as Section 13(1A), in this manner perceiving two grounds of breakdown of the marriage. The 1976 Amendment Act embedded two extra fault grounds of divorce for wife and another section 13(B) for divorce by mutual consent.

Section- 5 of the Hindu Marriage Act, 1955 states that neither the husband nor the wife should have a living spouse at the time of marriage.

Bigamy is an offence under section 494 of The Indian Penal Code (IPC) even if the second marriage is performed with the permission of the first wife and thus punishable with the imprisonment of not less than 7 years.

 

SECTION-13(A) OF THE HINDU MARRIAGE ACT, 1955

 

(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

·         That there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

 

·         That there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

 

SPECIAL MARRIAGE ACT, 1954:

The special marriage act, 1954 replaced the old act III 1872. The new enactment has three major objectives-

·         to provide a special form of marriage in certain cases,

·         to provide for registration of marriage in certain cases,

·         to provide for divorce.

The purpose of the act is to provide the people of India and all the Indian Nationals residing in foreign countries, irrespective of the caste, religion, or faith followed by either party.

What is the Process of Divorce in India?

To start with the divorce procedure firstly, one has to be sure that they want to go ahead with the decision of divorce as it is a life altering decision. Once you are content that you want to initiate the divorce process in India then consult the best divorce lawyer who will help, guide and assist you in the entire divorce procedure right from the filing of divorce petition till the pronouncement of the final order for dissolution of marriage. Thus, to start with the divorce process step by step in India, the first thing is to prepare yourself to go ahead with the divorce process.

Divorce in India can be either mutual consent or contested. The divorce procedure for both the mutual consent and contested divorce however some steps of the divorce process in India remains the constant. The step-wise divorce procedure in India in every divorce case is as follows:

  • Filing of Divorce Petition - The first step in the divorce process in India is filing of divorce petition before the appropriate family court. The courts in which the step by step divorce process can be initiated by filing of divorce petition are either of the following :
  1. In jurisdiction of which both the parties have been residing in their matrimonial home,
  2. Where the wife is presently living, or
  3. Where the husband is presently living.

The party who wants to seek the divorce from other has to file the petition or if the parties mutually agree to divorce each other then a joint divorce petition is required to be filed before the appropriate court to initiate the divorce procedure. The petition of divorce must mention the grounds of divorce. A top divorce lawyer will help you in drafting the divorce petition and in the step by step divorce process.

  • Service of Summons - After filing of divorce petition the next step in the divorce procedure is the service of summons on to the other party to inform them that the divorce process has been initiated against them by their spouse. After receiving the summons the party has to appear before the court on the date mentioned in the summons.
  • Response - The next stage in the divorce procedure is to document a reaction to the divorce petition. The response should mention the points on which the other party wants to contest the divorce and also accept or reject the points mentioned in the divorce petition. If the party does not appear before the court for filing the response then the divorce procedure will end there and then and the court will pass an ex parte order of divorce thus putting an end to the divorce process.
  • Trial - The next step of divorce procedure is conducting of trial. When both the parties have submitted their petitions to the divorce then the court will hear both sides of the divorce along with their evidences and witnesses. This step of the divorce process in India also include the examination and cross examination of parties as well as witnesses. This is to a great extent is the most crucial stage of divorce process.
  • Interim Orders - The next step of the divorce procedure in India is interim orders. In this step of the divorce process the court passes temporary orders related to maintenance and child custody etc. Interim orders are passed during the subsistence of the divorce procedure and remain in force till the final decision of the court i.e., till the last stage of the divorce process in India.
  • Final Order - The last step in a divorce procedure is the pronouncement of the final order of the divorce. As soon as all the preceding stages of the divorce process are completed the court will pass a final order which will dissolve the marriage entirely. With the court’s final order the divorce procedure in India will come to an end

What is the Divorce Procedure of Mutual Consent Divorce?

The divorce procedure for the mutual consent divorce in India is less time taking. The parties can opt to follow the divorce process of mutual consent divorce in India when both the parties amicably agree to put an end to a troubled marriage. In the divorce procedure of the mutual consent divorce the parties to the divorce should decide all the issues of the divorce such as maintenance, child custody and distribution of assets etc among themselves before filing the divorce petition. 

Joint divorce petition by husband and wife  is submitted before the appropriate court with the help of good divorce lawyer. The court will give a cooling off period of 6-18 months to the parties if the court believes that there are chances of reconciliation between the husband and wife. After this cooling off period cames to an end the parties will file the divorce petition of second motion if the issues between them did not reconcile. As soon as the petition for second motion is filed the divorce becomes final and the divorce process cames to an end. 

The divorce procedure for the mutual consent divorce also provides that if the parties wish to withdraw the petition altogether or if any one party wishes to withdraw their consent under the divorce procedure followed for mutual consent they can do so. The divorce process in India further states that if both the parties withdraw their consent then the divorce process of the mutual consent divorce will come to an end. However, if only one party withdraws the consent from the divorce process of mutual consent divorce them it will get connected to the divorce procedure of the Contested divorce. The divorce process in India for the contested divorce has already been explained above.

Dissolution of Muslim Marriage Act: Under the Muslim personal divorce laws, muslim men have been given an edge to give divorce to their wife without going to court but if a muslim women wants to initiate the divorce procedure then she either has to take permission from his husband to give him divorce or can file a divorce petition under the Dissolution of Muslim Marriage Act on the basis of grounds given in the act. The grounds provided in the Dissolution of Muslim Marriage Act to initiate the divorce procedure are -

·         Whereabouts of husband not known for at least four years, 

·         No maintenance has been provided by the husband for the period of two years,

·         Husband has been imprisoned for a term of seven years or more,

·         Failure to fulfil the marital obligation by the husband for the period of at least three years,

·         For the period of two years husband has been insane or suffering from leprosy,

·         Impotency of the husband from the time of marriage.

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