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DIVORCE

 

DIVORCE

 

INTRODUCTION

Couples are believed to be made in heaven. Usually, this is what the partner feels when bonding in a marital relationship, but many times soon the relationship gets suffocated and bored. A legal process is required to break this relationship apart from any other relationship. By applying for divorce, the husband and wife can end the mutual relationship both socially and legally. However, the court is one of the few such things that make most Indians nervous. Knowing some concrete things can help in deciding to file a divorce petition.

 


WHAT IS DIVORCE?

It is the termination of a marriage by legal action requiring a complaint by an individual. This means that your marriage is officially ending. This is done because when one person wants to go out of another's life, he still has the responsibility of his partner's life.

 

DIVORCE PROCESS ACCORDING TO RELIGION IN INDIA

In India, divorce laws are different for different religions:

1. Hindu Marriage Act, 1955, which includes Sikhs, Jains, Buddha.

2. For Christians, Divorce Act-1869 and Indian Christian Marriage Act, 1872

3. For Muslims, the divorce process is governed by the Divorce of Divorce and the Dissolution of Marriage Act, 1939 and the Muslim Women Act, 1986. At the same time, a strict triple talaq law has also been passed.

4. For Parsis, it is Parsi Marriage and Divorce Act-1936

5. The Special Marriage Act, 1954 is followed for all other religions and general issues.

 

THE GROUNDS FOR DISSOLUTION OF MARRIAGE IN THE HINDU MARRIAGE ACT, 1955:

In the same Hindu law, after the enactment of the Marriage Law Amendment Act 1976, the status of women has strengthened and two more Aadhaar women have got polygamy by husband and rape, anal sex or animal husbandry by husband.

Whereas before 1976 ammendment, 11 grounds were received by both the husband and wife.  They are the base;

1-jarrata,

2-cruelty,

3 - Abandonment,

4 - Religion,

5-brain deformity,

6 - Leprosy,

7-- venereal disease,

8 - World Abandonment,

9-presumed death,

10-Judicial application,

11 - Non-compliance with the mandate for restitution of marital rights



GROUNDS OF DIVORCE AS PER THE HINDU MARRIAGE ACT

·       ADULTERY

The concept of Adultery may not be considered as an offence in many countries. But as per the Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of the most important ground for seeking divorce. Adultery means the consensual and voluntary intercourse between a married person with another person, married or unmarried, of the opposite sex. Even the intercourse between the husband and his second wife i.e. if their marriage is considered under bigamy, the person is liable for the Adultery.  

The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws Amendment Act, 1976.

 

Swapna Ghose v. Sadanand Ghose

In this case, the wife found her husband with other girl lying on the same bed and the neighbour also confirmed that the husband has committed an offence. Here the wife gets the divorce.

Sachindranath Chatterjee vs Sm. Nilima Chatterjee

In this case, the petitioner and the defendant were married. After marriage, the husband leaves the wife in his home town so that she can complete her studies and go to another city for work. He visited twice or thrice a month to meet her. Later he found that his wife commits the adultery i.e. to involve in sexual intercourse with his own nephew, watchman etc. The plaintiff approaches the court to demand divorce on the ground of adultery and his petition was accepted and the marriage gets dissolved.

Essentials of Adultery

·        One of the spouses involved in the intercourse with another person, married or unmarried, of the opposite sex.

·        Intercourse should be voluntary and consensual.

·        At the time of the act, the marriage was subsisting.

·        There must be sufficient circumstantial evidence to prove the liability of another spouse.


·       CRUELTY

The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is lack of kindness which adversely affects the health of the person. Well it is easy to determine the nature of physical cruelty but difficult to say about mental cruelty

 

What is considered as Mental Cruelty against Husband by wife:

Humiliating the husband in front of his family and friends.

Undertaking the termination of pregnancy without husband consent.

Making false allegation against him.

Denial for Martial Physical Relationship without a valid reason.

Wife having affair.

Wife living an immoral life.

The constant demand for money.

Aggressive and uncontrollable behaviour of Wife.

Ill-treatment to the husband parents and family.

 

 Balram Prajapati vs Susheela Bai

In this case, the petitioner filed the divorce petition against his wife on the ground of mental cruelty. He proved that his wife that behaviour with him and his parents was Aggressive and uncontrollable and many times she filed the false complaint against her husband. The court accepts the petition and grants the divorce on the ground of cruelty.


What considered as Mental Cruelty against wife by Husband?

False accusation of adultery.

The demand for dowry.

Impotency of Husband.

Force to abort the child.

The problem of drunkenness of husband.

Husband having affairs.

The husband lives an immoral life.

Aggressive and uncontrollable behaviour of the husband.

Humiliating the wife in front of family and friends



·       DESERTION

Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. In General, the rejection of the obligations of marriage by one party.  

 

Essentials

Permanent abandonment of the other spouse.

Rejection of the obligation of marriage.

Without any reasonable justification.

No consent of another spouse.


In Bipin Chander Jaisinghbhai Shah vs Prabhawati

In this case, the respondent leaves the house with the intention to abandon his wife. Later the wife approaches the court, but the defendant proved that even though he left the house with the intention to desert, but he tried to come back and he was prevented from doing so by the petitioner. Here, the defendant cannot be held liable for desertion.  



·       CONVERSION

If one of the spouses converts his religion to any other religion without the consent of the other spouse, then the other spouse can approach the court and seek the remedy of divorce.

Illustration

A, a Hindu has a wife B and two children. One day A went to church and converted to Christianity without the consent of B, here B can approach the court and seek for divorce on the ground of conversion.

 

 Suresh Babu vs Leela

In this case, the husband converts himself into Muslim and marries another woman. Here the wife Leela filed a case and demanded the divorce on the ground of conversion without her consent and cruelty.



·       INSANITY

Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the following two requirements-

The respondent has been incurably of unsound mind.

The respondent 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.

In Vinita Saxena vs Pankaj Pandit

In this case, the petitioner filed a case to get the divorce from the respondent on the ground that the respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to know these after her marriage. Here, the court grants the divorce on the ground of insanity of husband.

 

 

·       LEPROSY

Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is transmitted from one person to another. Thus it is considered as the valid ground for divorce.

In Swarajya Lakshmi vs G. G. Padma Rao

In this case, the husband filed the case for granting the divorce on the ground of leprosy. He claimed that his wife is suffering from incurable leprosy with the expert’s reports. Here he succeeds in getting the divorce on the ground of leprosy.



·       VENEREAL DISEASE

Under this concept, if the disease is in communicable form and it can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.


Illustration

A and B married on 9 September 2011. Later A suffered from a venereal disease and it is incurable. There’s also a chance that B can also get infected by that disease if she lives with A. Here, B can approach the court for dissolution of marriage   



·       RENUNCIATION

It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead. It is a typical Hindu practice and considered as a valid ground for divorce.

Illustration

A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a right to approach the court and seek the remedy of divorce.



·       PRESUMPTION OF DEATH

In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

Illustration

A was missing from the last seven years and his wife B does not get any news about him of being alive or dead. Here B can approach the court and ask for the divorce.

NOTE

The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved spouses (Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the grounds on which only the wife can approach the court of law and seek the remedy of divorce.

 

 

PROCEDURE FOR GETTING DIVORCED UNDER 13 (B)

The Hindu Marriage Act, 1955 also provides for the dissolution of marriage. But it was not until 1976 with the consent of the parties of the marriage. Through an amendment in May 1976, Section 13-A and Section 13-B were added to this Act, and in Section 13-B, arranged marriage by consent was arranged.

First stage: Both husband and wife have to apply for divorce in court.

Second stage: In the second phase, the cart records the statements of both the husband and wife and the papers of both the parties are signed.

Third stage: The court gives 6 months time for both to settle. In such a case, the court tries to resolve the matter with mutual consent.

Fourth stage: As soon as the time given for mutual reconciliation is completed, the court calls both the parties for final hearing.

Step five: In the final hearing of the case, the court gives its verdict.

 



THE APPLICATION FOR DIVORCE UNDER 13 (1) CAN BE FILED FOR DIVORCE ON THE BASIS OF ADULTERY, CRUELTY, ABANDONMENT, CONVERSION, MENTAL DISORDER, LEPROSY, SEXUAL DYSFUNCTION, NON-LIFE FOR SEVEN YEARS, RESTITUTION OF COHABITATION.

 THIS WHOLE PROCESS IS COMPLETED IN SEVERAL STAGES.

First step: First of all, it has to be decided on what basis to get a divorce.

Second step: After this, evidence has to be collected on the basis on which the application for divorce is filed.

Third stage: In the third phase all the evidence and documents have to be submitted to the court.

Fourth stage (A): After all the papers are submitted in the court, the court orders the other party to appear in the court. If the other party does not appear in the court then the court moves the action based on the papers submitted.

 

 (B): If the other party appears in the court then the court tries to resolve the matter with mutual consent after listening to both the parties. The court gives both of them some time to decide whether they want to live together or want divorce.

Fifth step: If both the parties fail to reconcile with each other in due time, then the party filing the application makes a petition in the form of a written statement against the other party. The court gives 30 to 90 days to give this petition.

Step Six: After the process of submitting the written statement is complete, the court decides which process to follow.

Seventh stage: After this, the court hearing process starts and the evidence and papers submitted by both the parties are checked again.

Eighth stage: In this phase, after hearing both the sides and seeing all the evidence, the court gives its verdict. This process is quite long, which often takes years.

 

 

 

NO PETITION FOR DIVORCE WITHIN ONE YEAR OF MARRIAGE

As per Section 14, no Court will entertain the petition of divorce within the one year of the marriage. But can be entertained if the matter is related to bigamy, and where the consent of the spouse was taken through misrepresentation, fraud, undue influence etc.



REMARRIAGE OF DIVORCED PERSON

As per Section 15, after the marriage gets dissolved and no further petition was filed by any of the spouses against the order of the court and the time for appeal has expired. At that time it is assumed that both the spouse are satisfied. Then only the divorced person can marry again.




RIGHT TO EQUAL RESPECT AND MENTAL PEACE TO ALL SPOUSES IN MARRIAGE: DELHI HIGH COURT

The Delhi High Court has said that every person has the right to mental peace and happiness and marriage, which is a sacrament, cannot be a one-sided affair and both partners deserve equal respect and responsibility. The court made these comments annulting the couple's marriage on the grounds of cruelty by a husband and release of the wife.

The High Court made this remark dismissing the plea of ​​a husband who had challenged the family court's decision to terminate her marriage. This decision was given by the family court as a basis for cruelty to his wife and leaving her.

The bench of Justices Hima Kohli and Asha Menon said in its judgment that the persistent harassment of his wife by a very insensitive and selfish husband from the daughter's testimony is perfectly clear and there is no need to say anything more.

The court said that it is a symbolic case that shows when the behavior of one partner would be considered cruel to completely harm the other. The bench said that every person has the right to mental peace, remain happy and satisfied. Marriage is undoubtedly a sacrament, but it cannot be one-sided. Both sides of the marriage are equal partners and they are entitled to share financial and other support and duties and responsibilities for mutual respect, love, emotional bonding and skill of each other.

 

 

 

 

RETRIEVABLE BREAKDOWN OF MARRIAGE

·        Recently KR Srinivasa Kumar vs. R. In the Shametha case, the Supreme Court, while examining various judicial decisions, gave the verdict on the separation of the Irritable Breakdown of Marriage as the basis.

 

·        The Supreme Court stated in its decision that cases where marital relations are completely impracticable, emotionally dead and have no possibility of improvement and are incompletely broken can be considered as the basis of marriage separation.

 

·        Such marital relations are fruitless and their continuation gives mental harassment to both the parties. In these cases the Court is required to exercise its extraordinary powers under Article-142 due to absence of any statutory provision.

 

·        Under Article-142, the Supreme Court has the power that in cases where a decision cannot be made by law or by law, it can give final decision by bringing that matter under its own jurisdiction.

 

·        In the past, the Court has also considered the Irritable Breakdown of Marriage as the basis for the separation of marriage in several cases where marital relations have died.

 

·        The Law Commission of India has twice before included it in the Hindu Marriage Act and the Special Marriage Act to make irreversible separation in Hinduism the basis for separation of marriage. Is recommended to do.

 

·        The Law Commission recommended amendment of the Act in its 71st report in the year 1978 and 217th report in 2009.



CONCLUSION

The Hindu Marriage Act, 1955 provides various provision regarding divorce. The Hindu Marriage Act defines “Divorce as a Dissolution of Marriage”. The main three theories related to divorce are Fault Theory, Mutual Consent Concept, and irretrievable theory. In India, the Fault theory works in the matter of the divorce. Under this theory, marriage can be ended when one of the spouses is responsible or liable for the offence under matrimonial offences. The innocent spouse can seek the remedy of divorce. Under the Hindu Marriage Act, the basic grounds on which the Hindu women can seek the remedy of divorce are Adultery, Desertion, Conversion, Leprosy, Cruelty etc. But many philosophers criticise the concept of Divorce. The Hindu married women can also apply for the maintenance under section 125 of the Criminal procedure code. So the spouse who is innocent can approach the court and can seek the remedy of divorce.

 

 


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