Advocate Prachi Singh
(Family Law Attorney at New Delhi)
A-381,Defence Colony,New Delhi-110024
Advocate Prachi Singh is Family Law Lawyer, practicing in Supreme Court, Delhi High Court and Districts Courts in Delhi. She is contesting and advising on divorce cases, foreign and NRI divorce cases, child custody cases, International family law cases, ,Divorce Transfer Petition in Supreme Court, DV Act Cases, Maintenance Cases..etc..She has good knowledge in Family Laws Cases of India.
Dissolution of Marriage or Divorce Laws in India
According to the Indian divorce laws there are mainly two ways to obtain you divorce, the mutual divorce and the contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to a settlement and get a “no-fault divorce”. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage act that you are entitled to. There are separate divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing for divorce in India. Laws are even laid down for Inter-cast marriages under the Special Marriage Act, 1956.
Procedure for Dissolution of marriage
Annulment or Nullity
Divorce by Mutual Consent.
The same laws according to which the marriage was solemnized govern dissolution of marriages, and the rights consequent to the dissolution.
Hindus – The Hindu Marriage Act, 1955
Christians – The Divorce Act,1869, The Indian Christian Marriage Act,1872
Parsis – The Parsi Marriage and Divorce Act,1936
Muslims – Shariat Law, The Dissolution of Muslim Marriage Act,1939
Inter-cast/Secular – Special Marriage Act, 1954,
The Foreign Marriage Act,1969
Divorce on Grounds of Cruelty under 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 xxx xxx xxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;”
Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger’ (Russel v. Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II page 87].
(Where the wife leveled false allegations of illicit relationship with another Lady.)
In Hemwanti Tripathi vs. Harish Narain Tripathi, 181 (2011) DLT 237, it is also held that :
“14……..That the ratio of Ashok Kumar v. Santosh Sharma (supra) and Savitri Bachman (supra) wherein it was held that a decree of divorce on the ground of cruelty can be passed on the strength of false, baseless, scandalous and malicious allegations in the written statement by one party on the other is thus found applicable to the facts of the present case because in the case at hand the husband has not led any evidence in support of his allegations.
As per the settled legal position, casting such aspersions on the character of the other spouse has the affect of causing deleterious affect on the mind of such spouse and the same is a worse form of cruelty
Divorce on Grounds of irretrievable broken down.
In the matter of : Sardar Avtar Singh vs Amarjeet Kaur Gandhi ( Delhi High Court)
As the parties are living separately for more than sixteen years and there has been no reconciliation and the marriage has been irretrievable broken down, it is just and proper that the marriage between the parties is dissolved by decree of divorce for the reasons stated in paras 12 to 19.
In the another matter : Satish Sitole Vs Smt. Ganga( The Apex Court )
“Having dispassionately considered the materials before us and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, we are also convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably.”
Divorce on Grounds of desertion.
“It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.”