HOW TO GET A DIVORCE IN INDIA

29_12_2013-divorce29_s

India has different divorce laws for different religions. Almost all the religions has their own divorce laws in India which are used among themselves. There are separate laws for inter-cast or inter-religion marriages. Divorce laws in India for Hindus is described in Hindu Marriage Act, 1955. Hindu Marriage Act is also used for Sikhs, Buddhists and Jains as they don’t have their own separate marriage and divorce laws. Here is the list of various divorce laws in India for various religions:

Hindu (including Sikhs, Jains and Buddists) : Hindu Marriage Act, 1955

Muslims : Dissolution of Muslim Marriages Act, 1939

Christians : Indian Divorce Act, 1869

Parsis : The Parsi Marriage and Divorce Act, 1936

Inter-Cast of Inter-Religion : Special Marriage Act, 1954

The Indian Divorce, Act Special Marriage Act, the Parsi Marriage and Divorce Act and the Hindu Marriage Act, provide for annulment of the marriage, since its very inception, on grounds such as the non-fulfillment of mandatory conditions.. The Indian Divorce act requires confirmation by the High Court to come into effect.

Grounds for Divorce in India

In India divorce is granted mainly on 4 different grounds.

  1. Adultery
  2. Desertion
  3. Cruelty
  4. Impotency
  5. Chronic Diseases

 

Contested Divorce under Hindu Marriage Act 1955

Divorce. —

(1) Any marriage solemnised, 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—

16 [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

16 [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

16 [(ib) 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

17 [(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 18 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 18 [***] been suffering from venereal disease in a communicable form; or

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

(vi) 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; 19 [***] 20 [ 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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

Mutual Consent Divorce under Hindu Marriage Act.

mutual divorce

Divorce by Mutual Consent

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

Sec.13-B of Hindu Marriage Act 1955- Divorce by mutual consent.-(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, 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 earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, 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 in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Procedure for Filing for Divorce

The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.

ANNULMENT OF MARRIAGE UNDER HINDU MARRIAGE ACT:

marriage

There are two ways to legally end a marriage – annulment and divorce. An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid. A divorce, or legal dissolution of a marriage, is the ending of a valid marriage between a man and a woman returning both parties to single status with the ability to remarry. While each individual state has its own laws regarding the grounds for an annulment or for a divorce, certain requirements apply nationwide.

An annulment case can be initiated by either the husband or the wife in the marriage. The party initiating the annulment must prove that he or she has the grounds to do so and if it can be proven, the marriage will be considered null and void by the court. The following is a list of common grounds for annulment and a short explanation of each point:

Bigamy – either party was already married to another person at the time of the marriage
Forced Consent – one of the spouses was forced or threatened into marriage and only entered into it under duress.

Fraud – one of the spouses agreed to the marriage based on the lies or misrepresentation of the other.

Marriage Prohibited By Law – Marriage between parties that based on their familial relationship is considered incestuous.

Mental Illness – either spouse was mentally ill or emotionally disturbed at the time of the marriage.

Mental Incapacity – either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent.

Inability to Consummate Marriage –
 either spouse was physically incapable of having sexual relations or impotent during the marriage.

Underage Marriage – either spouse was too young to enter into marriage without parental consent or court approval.

Depending on your state of residence, a divorce can be much more complicated than an annulment. Like annulment cases, each state has its own set of laws regarding divorce. In most divorce cases, marital assets are divided and debts are settled. If the marriage has produced children, a divorce proceeding determines custody of the children, visitation rights and spousal and child support issues.

Each state can have either a “no-fault” divorce or a “fault” divorce. A no-fault divorce allows the dissolution of a legal marriage with neither spouse being named the “guilty party” or the cause for the marital break-up.

Many states now offer the “no-fault” divorce option, a dissolution of a legal marriage in which neither party accepts blame for the marital break-up. In the absence of a “guilty party,” some states require a waiting period of a legal separation before a no-fault divorce can take place. For this reason, in addition to cases where one spouse wishes to assign blame, some parties seek to expedite the legal process by pursuing a traditional, “fault” divorce.

A “fault” divorce is only granted when one spouse can prove adequate grounds. Like an annulment, these grounds vary from state to state, however, there are some overarching commonalities. These guidelines often include addition to drugs, alcohol or gambling, incurable mental illness, and conviction of a crime. The major grounds for divorce that apply in every state are listed below:
Adultery – one or both spouses engages in extramarital relationships with others during the marriage.

Desertion – one spouse abandons the other, physically and emotionally, for a lengthy period of time.

Physical/Emotional Abuse – one spouse subjects the other to physical or violent attacks or emotional or psychological abuse such as abusive language, and threats of physical violence.

Your state law and particular situation will determine whether or not your annulment or divorce will be simple or complex. Familiarizing yourself with the laws for your particular state is the best way to learn what your rights are in the case of a marital dissolution.

Nullity of marriage and divorce:- Void marriages 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 clauses (i), (iv) and (v), Section 5. 12. Voidable.

Marriages.-(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:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) 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, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) 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-

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

(i) the petition is 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 or her full consent, lived with the other 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;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) 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.

 

What is a marriage annulment?

There are two ways to legally end a marriageannulment and divorce. An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid.

What Is Annulment Of Marriage

In strict Legal terminology, annulment refers only to making a voidable marriage null;if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this.

Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

Section 12 of Hindu marriage Act,1955

Voidable Marriages :-

(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:-

a.that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; or

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

c.that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under section 5, the consent of such guardian was obtained by force or fraud; or

d.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-

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

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

(ii) the petitioner has, with his or her full consent, lived with the other 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;

b.on the ground specified in clause (d) of sub-section

(1) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.

 

 

 

 

 

maintenance after divorce but Maintain ‘Sexual Purity’ After Divorce

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05.08.2015

CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRL.RC.(MD)No.26 of 2015
and
M.P.No.1 of 2015

R.Mathialagan : Petitioner

Vs.

V.Ravichandrika : Respondent

PRAYER: Petition is filed under Section 397 r/w 401 of the Code of Criminal
Procedure, to call for the records in pursuance to the order dated
04.12.2013, passed in M.C.No.39 of 2011, passed by the learned Family Court,
Madurai and set aside the same and allow this Criminal Revision Case.
[Date of reserving the Judgment – 30.06.2015]
[Date of pronouncing the Judgment – 04.08.2015]

!For Petitioner : Mr.M.Karthikeya Venkatachalapathy

^For Respondent : Mr.Gnanasekaran
Legal Aid Counsel

:ORDER
The petitioner is the husband of the respondent herein. The marriage
between them was solemnized on 12.09.1991. They have got a male child born on
09.12.1997. Thereafter, there there was no love-lost between them. The
petitioner filed H.M.O.P.No.119 of 2007, before the Family Court, Madurai,
seeking divorce to dissolve the marriage between him and the respondent on
the ground that the respondent had deserted him voluntarily and she was not
willing to live with him, without any sufficient cause. The Trial Court, by
Judgment and Decree, dated 01.06.2010, granted divorce, accepting the plea of
the petitioner. While granting divorce, the Family Court directed the
petitioner to pay a sum of Rs.750/- per month as alimony. The said order has
become final. Subsequently, the respondent filed M.C.No.39 of 2011, before
the Family Court, Madurai, claiming maintenance, at the rate of Rs.6,000/-
per month, under Section 125 of the Code of Criminal Procedure, [for brevity,
“the Code”]. The Family Court, by order dated 04.12.2013, allowed the said
petition directing the petitioner to pay a sum of Rs.2,000/- per month to the
respondent towards her maintenance. Challenging the same, the petitioner has
come up with the present Criminal Revision Case.
2. I have heard the learned counsel appearing for the petitioner. Since
the respondent had not appeared, despite service of notice, this Court
appointed Mr.D.Gnanasekaran, as Legal Aid Counsel, to argue the case on
behalf of the respondent. I have heard him also and perused the records
carefully.

3. The main contention of the learned counsel for the petitioner is
that since there was a decree for divorce granted by the Family Court, on the
ground of desertion, the respondent is not entitled for maintenance under
sub-section 4 of Section 125 of the Code.

4. But, the learned counsel appearing for the respondent would submit
that sub-section 4 of Section 125 of the Code is applicable only to a wife
whose marriage is still in subsistence and the said provision is not
applicable to a wife whose marriage has already been dissolved. For this
proposition, the learned counsel would rely on the Judgment of the Hon’ble
Supreme Court in Rohtash Singh Vs. Ramendri [Smt] and others, reported in
2000 (3) SCC 180.

5. At the first, let us have a quick look into sub-section 4 of Section
125 of the Code, which reads as follows:-
(4) No wife shall be entitled to receive an allowance from her husband
under this section she is living in adultery, or if, without any sufficient
reason, she refuses to live with her, husband, or if they are living
separately by mutual consent.

6. A perusal of the said provision would go to show that a “wife”, who
refuses to live with her husband, without any sufficient reasons, is not
entitled for maintenance under sub-section 4 of Section 125 of the Code. The
term “wife” has been defined by means of Explanation ‘b’ to sub-section 1 of
Section 125 of the Code, which states that “Wife includes a woman who has
been divorced or has obtained a divorce from her husband and has not
remarried”. Thus, for the purpose of Section sub-section 1 of Section 125 of
the Code, the term “wife” includes a divorced wife also. It is on this
premise, the learned counsel for the petitioner would submit that sub-section
4 of Section 125 of the Code is applicable to a divorced wife also. But, a
perusal of the Judgment of the Supreme Court in Rohtash Singh’s case, cited
supra, would go to show that the Hon’ble Supreme Court has found two parts in
sub-section 4 of Section 125 of the Code. The Hon’ble Supreme Court has also
held that the claim for maintenance under the first part of sub-section 4 of
Section 125 of the Code is based on the subsistence of marriage while claim
for maintenance of a divorced wife is based on the foundation provided by
Explanation (b) to sub-section (1) of Section 125 of the Code. The Hon’ble
Supreme Court further went on to say that if the divorced wife is unable to
maintain herself and if she has not remarried, she will be entitled to
maintenance allowance.

7. The Hon’ble Supreme Court has also held that a wife, after divorce,
becomes a destitute and if she cannot maintain herself or remains unmarried,
the man, who was, once, her husband, continues to be under a statutory duty
and obligation to provide maintenance to her. The Hon’ble Supreme Court has
further held that so far as the wife whose marriage is still in subsistence,
if she refuses to live with her husband, which is her matrimonial obligation,
then, she is not entitled for maintenance. To that extent, it is crystal
clear that when sub-section 4 of Section 125 of the Code is applicable to a
wife whose marriage is in subsistence. But, for a divorced wife, there is no
moral or statutory obligation to live with her husband. Therefore, for a
divorced wife to claim maintenance under Section 125 of the Code, even if the
divorce is on the ground of desertion, it is not a bar for her to claim
maintenance under Section 125 of the Code, as sub-section 4 of Section 125 of
the Code is not applicable.

8. In Rohtash Singh’s, in Paragraph No.11, the Hon’ble Supreme Court
has held as follows:-
” 10. Claim for maintenance under the first part of Section 125 CrPC is
based on the subsistence of marriage while claim for maintenance of a
divorced wife is based on the foundation provided by Explanation (b) to sub-
section (1) of Section 125 CrPC. If the divorced wife is unable to maintain
herself and if she has not remarried, she will be entitled to maintenance
allowance. The Calcutta High Court had an occasion to consider an identical
situation where the husband had obtained divorce on the ground of desertion
by the wife but she was held entitled to maintenance allowance as a divorced
wife under Section 125 CrPC and the fact that she had deserted her husband
and on that basis a decree for divorce was passed against her was not treated
as a bar to her claim for maintenance as a divorced wife. (See: Sukumar
Dhibar v. Anjali Dasi.) The Allahabad High Court also, in the instant case,
has taken a similar view. We approve these decisions as they represent the
correct legal position.
11. Learned counsel for the petitioner then submitted that once a
decree for divorce was passed against the respondent and marital relations
between the petitioner and the respondent came to an end, the mutual rights,
duties and obligations should also come to an end. He pleaded that in this
situation, the obligation of the petitioner to maintain a woman with whom all
relations came to an end should also be treated to have come to an end. This
plea, as we have already indicated above, cannot be accepted as a woman has
two distinct rights for maintenance. As a wife, she is entitled to
maintenance unless she suffers from any of the disabilities indicated in
Section 125(4). In another capacity, namely, as a divorced woman, she is
again entitled to claim maintenance from the person of whom she was once the
wife. A woman after divorce becomes a destitute. If she cannot maintain
herself or remains unmarried, the man who was once her husband continues to
be under a statutory duty and obligation to provide maintenance to her”.

9. The above conclusion of the Hon’ble Supreme Court is founded on the
ground that so long as the marriage is in subsistence, since there is a
statutory obligation for the wife to live with her husband and since she
refuses to live with the husband, without assigning any reason, she is not
entitled for maintenance under Section 125 of the Code. The Hon’ble Supreme
Court has further clarified that after the decree is passed for divorce on
the ground of desertion, since there is no legal obligation for the wife to
live with the husband, sub-section 4 of Section 125 of the Code is not
applicable and therefore, for the period commencing from the date of divorce,
she is not entitled for divorce and for the period from preceding decree for
divorce, she is not entitled for maintenance. In the instant case, the
divorce was granted on 11.06.2010, whereas the petition for maintenance was
filed only on 30.05.2011. Therefore, from 30.05.2011 onwards, she would be
entitled for maintenance under Section 125 of the Code, though the marriage
was dissolved by means of decree for divorce on the ground of desertion by
the respondent.

10. Now, turning to the quantum of maintenance ordered already, as per
the order of the Family Court, the petitioner has to pay a sum of Rs.750/-.
The petitioner has got no fixed income. He is only an Astrologer by
profession. The Lower Court has estimated his normal income at Rs.10,000/-
per month. In my considered view, in the absence of any evidence to prove the
income of the petitioner, simply by taking into account the fact that the
petitioner is an Astrologer, the Lower Court ought not to have arrived at a
conclusion that his monthly income would have been Rs.10,000/-. Going by the
normal earnings of a man of his stature, at the most, he can be directed to
pay a sum of Rs.1,000/- per month as maintenance, in addition to a sum of
Rs.750/-, which has already been ordered by the Family Court, Madurai, in
H.M.O.P.No.119 of 2007. To that extent, the order of the Lower Court deserves
to be modified.

11. In the result, the Criminal Revision Case is partly allowed, the
impugned order dated 04.12.2013, made in M.C.No.39 of 2011, passed by the
learned Family Court, Madurai, is modified and the petitioner is directed to
pay a sum of Rs.1,000/- per month towards maintenance of the respondent from
the date of petition, in addition to a sum of Rs.750/-, which has already
been ordered to be paid by the petitioner in H.M.O.P.No.119 of 2007.
Consequently, connected Miscellaneous Petition is closed. Before parting with
this case, I record my appreciation for the service rendered by
Mr.Gnanasekaran. The Legal Services Authority is directed to pay remuneration
to Mr.Gnanasekaran, the learned counsel, who has been appointed as legal aid
counsel to argue the case on behalf of the respondent.

To

1.The Family Court, Madurai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

.