How and where I Can File my divorce Petition in India.

Instructions

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Hindu marriage joins two individuals for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksha (ultimate spiritual release) together. It is a union of two individuals as husband and wife, and is recognized by law.

The marriage tied their nuptial knot to bring about the union of souls. The marriage creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic philosophy, it is sanskar- sacrament, one of the sixteen important sacraments essential to be taken during one’s lifetime. As a result of marriage there may be physical union between the parties of the marriage for procreation of lineal progeny and for ensuring spiritual salvation and performance of religious rites but what is essentially contemplated is the union of two souls. Marriage is considered to be a junction of three important duties i.e. social, religious and spiritual

Divorce

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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.

Types of Divorce

Mutual Consent – Both the spouses are in agreement that divorce cannot be avoided and they both opt for a “no fault” Divorce.

Section 28. Divorce by mutual consent Under Special Marriage Act

mutual divorce

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court by both the parties together 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 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 meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the avertments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree

Section 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 , (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 thy 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 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 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 in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Contested Divorce – The spouse seeking divorce can file under the appropirate faith based law under which they got married or in case of civil marriage under the appropirate law under which they married or their marriage was registered.

Governing Laws

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

Major Grounds for Divorce

Adultery

Deserting the spouse for two or more years

Physical or mental cruelty

Conversion to another religion in case of religious marriage

Incurable disease such as leprosy, venereal disease in a communicable form

Insanity, unsound mind or mental disorder

Renounced the world by entering any religious order in case of religious marriage

Unheard of as being living for a period of seven years or more

Section 19 in The Hindu Marriage Act, 1955 (Jurisdiction to File Divorce Petition in India).

Court to which petition shall be presented. —Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

41 [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]

(iv) 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 a period of seven years or more by those persons who would naturally have heard of him if he were alive.]

Jurisdiction of the Court If a marriage is solemnised at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on a ground that the husband resides outside the limits of municipal corporation; Arjun Singhal v. Pushpa Karwel, AIR 2003 MP 189.

Divorce on ground of desertion,mental cruelty and false criminal complaints by wife.

 

Divorce on desertion,mental cruelty and false criminal complaints by wife.

Conjugal Rights of Marriage:  

. The respondent also denied conjugal rights to the

appellant so as to coerce him to stay separate from his mother. On

the above referred allegations touching mental agony and torture

divorce petition was filed.

 

Criminal Complaints filed by wife.

. The appellant immediately sent a notice on 9.5.03 asking the

respondent to join the company and cohabit with the appellant but

instead of joining the company of the appellant the respondent

initiated criminal case under section 498A of IPC not only against

the appellant and his mother but three other near relations who

were staying separately including the uncle, aunt and husband of

the aunt. All the persons accused of having committed the offence

under section 498A of IPC were arrested by the police and they

were detained in custody.

 

Mental torture:

. According to the learned counsel for the appellant arrest

and detention of the family members and near relations of the

appellant in false case has caused him utmost mental torture.

 

Desertion :

 

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“There can not be absolutely two opinions regarding

legal proposition that if the wife filed false criminal cases

against the husband, her conduct does amount to causing

mental cruelty and torture to him, therefore, the husband

becomes entitled for a decree of divorce. The necessary

condition for constituting such legal cruelty is that the wife

has indulged into making false and reckless allegation by

filing false complaint to the police. A singular complaint filed

by wife under section 498A of IPC against the husband and

his family members can not indicate the tendency of wife to

indulge into making such false allegation.”

We fail to understand the logic behind the reasoning adopted by

the family court to hold that a singular complaint of this nature

under section 498A of IPC resulting in arrest and detention of the

family members and relatives thereby causing utmost

embarrassment, humiliation and suffering does not constitute

mental cruelty. It is illogical that more than one complaint are

necessary to be filed to constitute mental cruelty. In our view,

embarrassment, humiliation and suffering that is caused on account

of arrest and detention of appellant and his family members and

relatives in a false case does constitute mental cruelty to enable the

husband to seek decree of divorce on this sole ground. In our

considered opinion, the approach of the family court is wholly

perverse and the reasoning cannot be sustained in law. In regard to

other circumstances the family court has observed :

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

 

FAMILY COURT APPEAL NO. 66 OF 2006

 

Ajay Ashok Khedkar …. ….. ….. ….. Appellant.

V/s

Sou. Laleeta Ajay Khedkar….. …. ….. ….Respondent.

 

Mr.Hitesh Vyas, Adv. For the appellant.

Mr.Sachin S. Pande, Adv. For the respondent.

CORAM: A.P.DESHPANDE AND SMT. R.P. SONDURBALDOTA, JJ.

Date:12th April, 2010.

ORAL JUDGMENT: (Per Deshpande, J.)

 

This is family court appeal filed by the unsuccessful husband

whose petition for divorce has been dismissed by the Family Court.

The appellant and the respondent’s marriage was solemnized as per

Hindu rites and customs at Pune on 8.3.2001. The marriage was

an arranged marriage and after the marriage the respondent came

to reside with the appellant. The appellant’s mother resides along

with the appellant. The petition for divorce was filed on the

ground of mental cruelty under section 13(1)(ia) of the Hindu Marriage Act, 1955.

 

2. According to the petitioner on the wedding night itself the

respondent alleged that she was deceived in regard to income of

the appellant. The respondent allegedly stated that the salary of

the appellant as informed to her was much more than what he was

actually receiving. It is also alleged that with reference to the

number of spectacle the respondent taunted the appellant by saying

that she was made to perform marriage with a blind person.

Touching those issues the respondent allegedly started quarreling

with the petitioner and insulting the petitioner. It is the case of the

appellant that since beginning the behaviour of the respondent was

arrogant and rude and immediately after the marriage the

respondent was insisting that the petitioner should stay separately

from his mother in one of the two flats owned by the appellant’s

family situated at Raviwar Peth, Pune. According to the appellant

he tried to convince the respondent that his mother is old and there

is no one else to look after her and hence refused to stay separately.

It is also the case of the appellant that the respondent gave threats

that she would commit suicide if the appellant fails to reside

separately. The respondent also denied conjugal rights to the

appellant so as to coerce him to stay separate from his mother. On

the above referred allegations touching mental agony and torture

divorce petition was filed.

3. Sometime in December 2002 the respondent went to the

house of her parents for delivery. She delivered a girl child on

26.2.03. Despite passage of enough time the respondent did not

join the company of the appellant. According to the appellant

because of the insistence on the part of respondent to stay

separately the marital life was disturbed and peace and harmony

was lost.

On 3.5.03 the father of the respondent brought the

respondent to the house of the appellant but without meeting the

appellant or his mother respondent’s father went away. On 6.5.03

the respondent called her parents and brother at the house of the

appellant. The near relations of the respondent quarreled with the

petitioner and his mother and after creating a scene threatened the

appellant that they would implicate the appellant and members of

his family in false criminal cases. So threatening the appellant,

father and brother of the respondent took her away along with

them. While leaving the appellant’s residence they said that only if

he resides separately the respondent will be sent back. The

appellant immediately sent a notice on 9.5.03 asking the

respondent to join the company and cohabit with the appellant but

instead of joining the company of the appellant the respondent

initiated criminal case under section 498A of IPC not only against

the appellant and his mother but three other near relations who

were staying separately including the uncle, aunt and husband of

the aunt. All the persons accused of having committed the offence

under section 498A of IPC were arrested by the police and they

were detained in custody. This is the main circumstance which is

relied upon by the learned counsel for the appellant to contend that

lodging of false case which resulted in arrest and detention of

family members of the appellant is singularly sufficient enough to

hold that the respondent is guilty of causing mental cruelty and

agony to the appellant and thus pressed for grant of decree of

divorce. According to the learned counsel for the appellant arrest

and detention of the family members and near relations of the

appellant in false case has caused him utmost mental torture.

During pendnecy of divorce petition the said criminal case came to

be decided by a judgment dated 13.5.05 by Judicial Magistrate,

First Class, Pune acquitting the appellant and all his family

members from the charge under section 498A of IPC.

4. Perusal of the judgment clearly reveals that the prosecution

utterly failed to prove the case put forth by the complainant. The

Judicial Magistrate has recorded categoric finding that the

complainant’s own testimony falsifies the prosecution case that the

complainant was treated cruely and was harassed by the accused

persons with a view to coerce her and her parents to meet their

unlawful demand of Rs.50,000/.

The Magistrate has totally

disbelieved the version of the complainant/wife and has acquitted

the accused persons. On a careful reading of the judgment

rendered in the case of prosecution under section 498A of IPC one

thing is crystal clear and it can be safely assumed that the wife had

filed a false case not only against her husband and motherinlaw

but had unnecessarily roped in other near relations. It is obvious

that on account of arrest and detention of the husband and his

family members respondent has treated the appellant with utmost

mental cruelty and the appellant has suffered agony. It will not be

out of place to mention that the complaint filed by the wife was

calculatedly designed in as much as it was a sort of counter blast to

the divorce petition filed by the husband. The appellant had filed

divorce petition on 16.6.03 whereas the complaint was lodged by

the respondentwife

on 11.7.03.

5. Learned counsel for the appellant submits that the appellant

and his family members including ladies who did not stay along

with the appellant were arrested and detained causing utmost

humiliation and embarrassment and agony to the appellant. This

solitary incidence would itself constitute mental cruelty even if

other circumstances are not taken into account and thus the trial

court has erred in law in dismissing the divorce petition. Para 29 of

the judgment of family court deals with this aspect of the matter by

observing :

“There can not be absolutely two opinions regarding

legal proposition that if the wife filed false criminal cases

against the husband, her conduct does amount to causing

mental cruelty and torture to him, therefore, the husband

becomes entitled for a decree of divorce. The necessary

condition for constituting such legal cruelty is that the wife

has indulged into making false and reckless allegation by

filing false complaint to the police. A singular complaint filed

by wife under section 498A of IPC against the husband and

his family members can not indicate the tendency of wife to

indulge into making such false allegation.”

We fail to understand the logic behind the reasoning adopted by

the family court to hold that a singular complaint of this nature

under section 498A of IPC resulting in arrest and detention of the

family members and relatives thereby causing utmost

embarrassment, humiliation and suffering does not constitute

mental cruelty. It is illogical that more than one complaint are

necessary to be filed to constitute mental cruelty. In our view,

embarrassment, humiliation and suffering that is caused on account

of arrest and detention of appellant and his family members and

relatives in a false case does constitute mental cruelty to enable the

husband to seek decree of divorce on this sole ground. In our

considered opinion, the approach of the family court is wholly

perverse and the reasoning cannot be sustained in law. In regard to

other circumstances the family court has observed :

“At the most one can infer that this conduct of the

respondent may have caused some disharmony between the

couple but in no way it can be said that it was sufficient to

constitute a mental cruelty to petitioner or his mother.”

Without deliberating on all the circumstances in detail we are of

the clear view that cumulative effect of the behaviour and conduct

of the respondent is good enough to draw an inference that

respondent has caused utmost mental pain and suffering which

constitute mental cruelty to the appellant and hence the appellant

is entitled for decree of divorce on the ground of cruelty.

6. This brings us to the consideration of question of granting

maintenance to the girl child who is aged about 8 years. The

family court in exercise of powers under section 24 had granted

interim maintenance of Rs.700/p.

m. whereas this Court by an

interim order has raised it to Rs.1000/p.

m. The appellant so also

the respondent are both gainfully employed. They are earning in

the range of Rs.5000 to 7000 per month each. The child is in

custody of the respondentmother.

Learned counsel for the

appellant on instructions from his client who is present in the court

submitted that the appellant would pay a sum of Rs.1.5 lacs

towards permanent alimony for the maintenance of child. Having

found the said amount insufficient we persuaded the counsel for

the appellant to raise the amount so that monthly interest on the

said amount works out in the range of Rs.2000 per month. The

mother of the appellant has come forward to contribute further

sum of Rs.1.5 lacs towards maintenance of the child. In our view if

the appellant pays sum of Rs.3 lacs by way of permanent alimony

for the maintenance of child the said amount if kept in fixed

deposit can fetch interest of Rs.2000/per month and the same

could be utilized by the respondent for upbringing of the daughter.

In the result we pass the following order:

(i) The marriage of the appellant and respondent stands dissolved by a decree of divorce under section 13(1)(ia);

(ii) The appellant shall pay sum of Rs.3 lacs by way of permanent alimony for the maintenance of the girl child. The said amount of Rs.3 lacs shall be invested in fixed deposit in a nationalized bank and the respondent is permitted to withdraw the interest accrued thereon quarterly. The amount of Rs.3 lacs shall be invested in the fixed deposit within two months from today in the name of the minor child and the respondent would be shown as her guardian;

(iii) The said sum of Rs.3 lacs shall be kept invested in fixed deposit till the child attains majority.

(iv) Appeal is allowed with no order as to costs.

 

At this stage the learned counsel for the respondent seeks stay of this order. Having regard to the peculiar facts and circumstances we do not find any reason to stay the impugned order. Hence the prayer is rejected.