The Hindu Marriage Act lays down the following procedure for Divorce
The Hindu Marriage Act lays down the following procedure for Divorce where there is an option for the Hindu married couple to approach the courts of law for separation procedure. The pre-condition for divorce for Hindus is that the couple should be living separately for at least one year.
The first step in applying for a divorce is to hire a competent lawyer. The competency of the lawyer makes or breaks the case. The lawyer should be understanding and experienced in handling similar cases. He should be able to devote time and energy to the case.
There are two types of approaches to file an application for divorce. One is “by mutual consent” and the other is “by contest”.
The divorce application “by mutual consent” is easier as it takes lesser time as both husband and wife agrees for the grounds on which separation is sought. The people can the Divorce order in 6 months under the mutual consent divorce.
If the application is made “by contest” it leaves room for the counter party to contest the application and drag the case for years together without a valid reason.
The applicant should be open in discussions with the lawyer as to the marriage date, situations that compelled the divorce and the like. The more detailed the information is, the more easy it will be for the lawyer to draft the pleadings, to file and fight the case in the applicant’s favour. A Vakalat can be issued in favour of the lawyer to present the case.
The procedure for divorce is time consuming in India and may last for at least a year or more in certain cases. Therefore, during this period, it will be very tough for the estranged couple to handle the emotional part.
The grounds for Hindu divorce can be anything from adultery, desertion, mental disorder, renunciation, life threatening disease, no-resumption of co-habitation.
Also the children, if any, will be emotionally affected if a divorce happens. As tender brains, the separation will leave untold trauma in their minds against family values and love relations. Their future appears blank as the separation of their parents will leave them indecisive with whom to choose as their caretakers. There may be cases when the law declares one parent to take care of the child whereas the child himself prefers to live with the other.
Once the application is made, the case comes up for hearing after six month during which period, the couple is asked to reconsider. If the couple does not appear in the court after this “cooling period” the application stands void automatically. Also, the couple can withdraw the application during these six months.
During the divorce process, the couple should come to a conclusion related to custody of child, return of marriage gifts, post divorce maintenance and litigation expenses.
The alimony is a relatively new concept in India, whereby the separating partner agrees to support the other financially. In mutual consent cases of divorce, the alimony amount is decided mutually, but in contested cases, the courts of law steps in to decide the alimony amounts, when the parties fail to come out with an alimony amount.
GROUNDS FOR DIVORCE IN INDIA
The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955
Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act and such are included under cruelty.
Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
Conversion – In case either of the two converts himself / herself into another religion, the other spouse may file a divorce case based on this ground.
Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.
Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.
No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.
The following are the grounds for divorce in India on which a petition can be filed only by the wife
If the husband has indulged in rape, bestiality and sodomy.
If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age. If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
Based on the Dissolution of Muslim Marriage act, 1939, a Muslim woman can seek divorce on the following grounds for divorce in India.
- The husband’s whereabouts are unknown for a period of four years.
- The husband has failed to provide maintenance to the wife for at least two years.
- The husband has been under imprisonment for seven or more years.
- The husband is unable to meet the marital obligations.
If the girl is married before fifteen and decides to end the relationship before she turns eighteen. The husband indulges in acts of cruelty.
The following are the grounds of divorce mentioned under the Divorce Act, 1869 [ Divorce Law applicable for Christians]
Conversion to another religion.
One of the couples suffering from an unsound mind, leprosy or communicable venereal disease for at least two years before the filing of the divorce. Not been seen or heard alive for the period of seven or more years.
Failure in observing the restitution of conjugal rights for at least two years.
Inflicting cruelty and giving rise to mental anxiety that can be injurious to health and life.
Wife can file a divorce based on the grounds of rape, sodomy and bestiality.
The following are the grounds for divorce in India included in the Parsi Marriage and Divorce Act, 1936 and the amendment of the same in 1988 Continuous absence of seven years.
Non-consummation of marriage within one year. Unsound mind provided the other spouse was unaware of the fact at the time of marriage and the divorce must be filed within three years of marriage.
Pregnancy by some other man provided the husband was unaware of the incident during the time of marriage and that he must not have undergone sexual intercourse after he came to know about the situation. The divorce must be filed within two years of marriage.
Adultery, bigamy, fornication, rape, or any other type of perverse sexual act.
Act of cruelty.
Suffering from venereal disease or forcing the wife into prostitution.
Sentenced to prison for seven years or more.
Desertion for two or more years.
Non-resumption of cohabitation after passing an order of maintenance or a decree of judicial separation.