Divorce Procedure in India
Divorce

Divorce Procedure in India

Introduction about Divorce Procedure

Divorce procedure in India has been formulated, keeping in mind, the sacred nature of marriage. In India, marriage is regarded as a sacred union aimed at establishing a healthy and social life. It is seen as a sacrament that binds a man and a woman for their entire lifetime, with the Hindu belief emphasizing its indissoluble nature even after death. Divorce rate in India is around 1 percent, making divorce in India, a very rare occurrence. Traditionally, the concept of divorce in India was absent. However, in the state of Goa, the Goa Civil Code is applicable to all residents, irrespective of religious boundaries, and personal laws do not hold sway. Matrimonial laws in Goa empower the court to grant remedies such as Restitution of Conjugal Rights, judicial separation, alimony, child custody, and maintenance.

 

The divorce process in India which involves the legal dissolution of the marriage between spouses, was initially absent in some religions. However, with time, divorce process has become legally recognized. The divorce laws in India are based upon different religions, that are practiced in India. The Indian Divorce Act, 1869, governs divorce among Christians, Muslim laws, govern divorce among Muslims and the Hindu Marriage Act governs divorce among the Hindus. The divorce procedure in India, gives the court the authority to grant a divorce upon receiving a petition from either the husband or the wife. The annulment of marriage renders it null and void in the eyes of the law, signifying the termination of the marital relationship. The divorce process in India, encompasses various aspects such as alimony, child visitation arrangements, child custody, and other matters, aiming to settle disputes and enable the parties to live contentedly.

 

Know about the types of divorce

  •  Mutual Divorce:  Governed by the Hindu Marriage Act, mutual divorce process in India, involves the voluntary agreement of both parties, the husband and the wife, to peacefully separate. In the mutual divorce process, the couple must seek legal advice, discuss matters such as alimony and child custody, and mutually consent to the dissolution of their marriage. One essential condition for filing a mutual divorce is that the couple must have been living separately for a minimum period of one year. Even though the mutual divorce process in India, is smooth and does not involve fighting a case in the courts, one will still require divorce lawyers, to navigate through the divorce process smoothly.

  • Procedures for Mutual Consent Divorce Process in India involve several steps:

1.  Initiate Petition:  Draft a petition outlining the reasons for divorce with the agreement of both parties.

2.  File Jointly:  File the petition jointly in a family court through respective divorce lawyers. Legal consultation with expert divorce lawyers can be obtained online.

3.  Court Order for Oath Statement:  After reviewing the petition and documents, the court issues an order for recording the oath statement.

4.  Cooling Period:  Parties are granted a six-month cooling-off period to explore reconciliation.

5.  Final Hearing:  If reconciliation is not achieved after six months, both parties attend the final hearing within 18 months of filing. At this hearing, the court issues the divorce decree, officially ending the marriage.

  • Contested Divorce:  A Contested Divorce is initiated when one spouse decides to seek a divorce without the mutual agreement of the other. The divorce law governing this for Hindus, is the Hindu Marriage Act of 1955 that outlines specific grounds for contested divorce, including cruelty, conversion of religion, insanity, communicable disease, or the absence of either spouse for more than seven years. In contested divorces, the process is initiated by one party filing for divorce based on these legal grounds.

Procedure For Contested Divorce Procedure in India, initiated on specific grounds, the procedures are as follows:

1.  Prepare Petition:  Draft a petition stating the facts and grounds for divorce. File the petition in a family court along with affidavits, Vakalatnama, and relevant documents with the assistance of a divorce lawyer.

2.  Court Notice:  If the court approves the petition, it issues a notice or summons to the opposing party to appear on a specified date with their lawyer.

3.  Mediation Attempt:  The court may suggest mediation, and if unsuccessful, it proceeds with the divorce proceedings.

4.  Court Appearance:  On a designated date, both parties appear in court, present statements, submit evidence, undergo cross-examination, and provide witnesses. Attorneys present closing arguments.

5.  Court Decision:  The court issues its decision and a divorce decree on a set date. The aggrieved party has three months to file an appeal from the order date.

One typically requires the engagement of divorce lawyers in the process of contested divorce in India.

 

Legal provisions and procedures for divorce in India

India with its diverse cultural landscape, has established various personal laws that govern marriage and divorce, each rooted in distinct traditions and beliefs. These laws cater to different religious communities, ensuring that the principles align with their specific customs. The key divorce laws in India are:

The Hindu Marriage Act, 1955

In the realm of Hinduism, Buddhism, Sikhism, and Jainism, marriage is considered a sacred union, and divorce was historically not recognized. The Hindu Marriage Act, of 1955, applies to these communities, extending its jurisdiction even to Hindus residing outside India and Scheduled Tribes.

Conditions for a valid Hindu marriage are elucidated in Section 5, encompassing criteria such as mental soundness, age of the bride and groom, absence of a living spouse, and no blood relation based on Sapinda unless custom permits otherwise.

Section 13 of the act delineates various grounds for divorce, including adultery, cruelty, conversion, unsoundness of mind, leprosy, desertion, venereal disease, renunciation of the world, presumed death, and non-presumption of cohabitation, among others. Additional grounds are provided specifically for wives under Section 13(2), such as bigamy, rape, sodomy, bestiality, and the option of puberty.

 

Divorce Procedure in India

Marriage under the Hindu Marriage Act, 1955 is recognized as valid upon meeting specified conditions outlined in Section 5. Traditionally, Hindu law did not acknowledge divorce, given the sanctity attributed to marital bonds. However, the Hindu Marriage Act marked a transformative shift by introducing provisions under Section 13, allowing divorce based on specific grounds.

 Grounds for Divorce - Sections 13(1) and 13(1A): 

The Act provides grounds for divorce applicable to both parties, including adultery, mental or physical cruelty, two years of desertion, unsound mind, communicable venereal disease, renouncement of worldly ties, absence for seven years, and lack of cohabitation following judicial separation or restitution of conjugal rights.

 Specific Grounds for Women - Section 13(2): 

Section 13(2) outlines four grounds specifically available to women, such as the husband's polygamous marriage, guilt of heinous acts, non-resumption of cohabitation after a maintenance decree, and the woman's right to repudiate marriage before turning 18 in cases of marriage before the age of 15.

 Initiating Divorce Proceedings - Section 13 and Section 19: 

To seek divorce, a petitioner must present a petition to the district court under Section 13 and Section 19 of the Hindu Marriage Act. The burden of proving the grounds for divorce lies with the petitioner. The legal system, emphasizing the societal duty to preserve the institution of marriage, approaches divorce cautiously, making it challenging to dissolve marital ties easily.

Mutual divorce process in India - Section 13B: 

Introduced by the 1976 Amendment Act, Section 13B provides for the mutual divorce process in India. Couples can file a joint motion for divorce in India, under the divorce law as prescribed under the Hindu Marriage Act, stating they have lived separately for a year and mutually agreed to divorce. A second motion must be filed within 6 to 18 months, constituting a cooling-off period to encourage reconciliation, during the divorce process in India. If the second motion is not filed or is withdrawn, the petition generally fails. However, if submitted within the cooling-off period, the court scrutinizes the claims and grants a divorce decree if satisfied with their veracity.

 Rationale Behind the Cooling-Off Period: 

The cooling-off period aims to prevent impulsive divorce filings and encourages thoughtful resolution of marital differences. This period between motions provides an opportunity for couples to reflect on their decision and explore reconciliation, contributing to a more deliberate and considered approach to divorce.

In Sureshta Devi v. OM Prakash (1991), the Supreme Court interpreted the phrase "living separately" in Section 13B of the Hindu Marriage Act. It clarified that this means the parties should not be fulfilling marital duties, regardless of residing under the same roof. The court emphasized the absence of conjugal obligations for a continuous one-year period preceding the divorce petition.

Hitesh Bhatnagar v. Deepa Bhatnagar (2011) addressed the issue of withdrawing consent in divorce petitions under Section 13B. The court ruled that consent can be withdrawn during the cooling-off period or even after its expiry but must occur before the passing of the decree. The court stressed the jurisdictional importance of mutual consensus, and withdrawal before the decree results in the loss of court jurisdiction.

In Rajat Gupta v. Rupali Gupta (2018), the Delhi High Court established that breaching a settlement agreement for divorce through mutual consent can lead to contempt charges if willful breach and disadvantage can be proven. Anurag Goel v. Chhavi Agarwal (2023) similarly held a spouse guilty of contempt for violating a settlement agreement, imposing penalties and providing a chance for remedy through apology and compliance.

Anil Kumar Jain v. Maya Jain (2009) clarified that the statutory period of 6 to 18 months for the second motion in divorce cases under Section 13B is substantial and can only be waived by the Supreme Court under Article 142. Shilpa Sailesh v. Varun Sreenivasan (2023) reiterated this, stating that any court adjudicating the petition under Section 13B, not just the Supreme Court, can waive the statutory period.

 

 Presentation of Divorce Petition under Hindu Marriage Act 

Bowman v. Bowman (1949) established that a divorce petition under the Hindu Marriage Act can only be presented after one year of marriage. Exceptions are granted by the court based on exceptional hardship or depravity. The court assesses the degree of hardship suffered by the petitioner due to the respondent's conduct.

Section 19 of the Hindu Marriage Act determines the court's jurisdiction based on factors like the place of marriage, residence of the respondent, and the petitioner's current residence. Additionally, Section 3 of the Family Courts Act, 1984, establishes the jurisdiction of family courts in handling divorce petitions, offering a forum for parties irrespective of their religion.

  Transfer of Petitions: Shruti Kaushal Bisht v. Kaushal R Bisht (2020)  

Shruti Kaushal Bisht v. Kaushal R Bisht (2020) clarified the procedure for transferring petitions filed under sections 10 or 13 of the Hindu Marriage Act. Only these specific petitions can be transferred under Section 21A, while other petitions require application under sections 24 and 25 of the Civil Procedure Code, 1908.

Jagraj Singh v. Birpal Kaur (2007) emphasized the court's duty to make efforts for reconciliation in divorce cases, allowing the issuance of non-bailable warrants to secure the parties' attendance. Santhini v. Vijaya Venkatesh (2018) addressed the use of video conferencing, stating that it generally cannot replace personal attendance, except in specific cases where the court deems it in the interest of justice.

 Divorce Through Customary Hindu Practices: Shakuntala Bai v. Kulkarni (1989) and Duleshwar Deshmukh v. Kirtilata Deshmukh (2022) 

Shakuntala Bai v. Kulkarni (1989) upheld ancient and unbroken customs of divorce if they align with public policy and morality. Duleshwar Deshmukh v. Kirtilata Deshmukh (2022) recognized the validity of divorce through the customary practice of "chod-chutti" but emphasized the need for it to align with public policy.

 

 Divorce Procedure in India Based on Irretrievable Breakdown of Marriage 

The concept of irretrievable breakdown of marriage originated in the New Zealand Divorce and Matrimonial Causes Amendment Act, 1920. The court in Lodder v. Lodder (1921) emphasized that it is not in the interest of parties or the public for a marriage to continue if it has ceased to exist.

  Samar Ghosh v. Jaya Ghosh (2007) and Legislative Efforts  

Samar Ghosh v. Jaya Ghosh (2007) heavily relied on the 71st Law Commission Report, suggesting the concept of irretrievable breakdown of marriage. Despite a bill proposing Section 13C in the Hindu Marriage Act, 1955, the legislature did not pass it.

Yousuf Rawther v. Sowramma (1970) recognized the ground of divorce as the breakdown of marriage rather than conjugal guilt. Naveen Kohli v. Neelu Kohli (2006) acknowledged that living separately for a considerable time implies a broken marriage.

Anil Kumar Jain v. Maya Jain (2009) held that courts, using inherent powers under Article 142, can dissolve marriages deemed unworkable and emotionally dead when no statutory grounds exist. Shree Rakesh Raman v. Smt. Kavita (2023) reinforced this, specifying that only the Supreme Court can grant divorce on the ground of irretrievable breakdown until legislation provides a specific provision.

 

The Divorce Act, 1869

Originally enacted during British rule and extended to the entire nation after the abrogation of Article 370, the Divorce Act, of 1869, exclusively applies to Christians residing in India.

The Indian Divorce Act, provides grounds for divorce under Section 10, applicable to both parties, including adultery, conversion, leprosy, venereal diseases, presumed death, non-consummation, desertion, unsoundness of mind, and cruelty. Moreover, additional grounds are specified for wives in cases of rape, bestiality, or sodomy.

procedure

The Indian Divorce Act applies in cases where either spouse follows the Christian religion, and jurisdiction for divorce petitions is generally with district courts as per section 4 of the Act. Section 10 of the Indian Divorce Act, allows either party to seek divorce based on various grounds by filing a petition in the district court.

 

Special Marriage Act, 1954

The Special Marriage Act, 1954, stands as a unique legislation applicable to all citizens, irrespective of caste or religion, fostering a special legal framework that transcends such distinctions. This act applies to citizens residing in India, as well as those living outside its borders.

Section 4 outlines the conditions for a valid marriage, including soundness of mind, attainment of the age of majority, and the absence of prohibited relationships.

Section 27 of the Special Marriage Act provides grounds for divorce, with Section 27A granting the court discretionary power to decree judicial separation instead of divorce. Notably, the court can exercise its discretion except in cases of presumed death.

To seek divorce under this Act, a petition must be filed with the district court, citing grounds specified in section 27 of the Act.

Divorce in Muslim Law

  • Muslim personal laws are governed by the Muslim Personal Law (Shariat) Application Act, 1937, derived from the Holy Quran, Hadiths, and Fatwas. This law encompasses aspects like marriage, succession, and inheritance for Muslim citizens residing in India, excluding those married under the Special Marriage Act, of 1954.
  • Muslim marriages are contractual agreements with specific conditions outlined under the Dissolution of Muslim Marriages Act, of 1939. These conditions encompass the mental soundness of the bride and groom, the presence of agents, wali, and witnesses during Nikah, and the stipulation of a specified dower by the groom to the bride.
  • Modes of divorce under Muslim law include judicial and extra-judicial categories. Judicial divorces are decreed by the court, settling matters of child custody, alimony, and maintenance. Extra-judicial divorces are based on the will of the spouses or mutual agreement, with the pronouncement of Talaq serving as a key mechanism. Different forms of Talaq, such as Talaq-e-Sunnat, Biddat, ila, and Zihar, offer various rights to both husbands and wives. Furthermore, Muslim divorce is categorized into divorces initiated by the husband (Talaq), by the wife (Talaq-e-Tafweez, Lian, and Khula), and through mutual consent (Mubarat).

 

Dissolution of Muslim Marriage Act, 1939: Grounds and Procedure  

The Dissolution of Muslim Marriage Act, 1939, based on the Maliki School of Law, provides statutory grounds for Muslim women to seek divorce. Grounds include the husband's unknown whereabouts, failure to maintain, imprisonment, impotence, insanity, virulent venereal disease, option of puberty, cruelty, or any other valid Muslim law ground. The Act also clarifies the consequences of conversion or renunciation of religion.

 

Alaq-e-Tafweez: A Pre-existing Agreement   

Talaq-e-Tafweez is a form of delegated divorce, where the husband grants the wife the authority to pronounce Talaq at her discretion. This pre-existing agreement enables the wife to exercise the right to divorce if specific conditions stipulated in the agreement are met.

Khula: Wife's Consent for Divorce  

Khula is a form of divorce where the wife initiates the process by consenting to end the marriage. The wife agrees to provide consideration (monetary or otherwise) to the husband in return for her release from the marital bond. The court examines the validity of the Khula, ensuring it meets the legal requirements.

Understanding the diverse forms of divorce under Muslim law, including the Dissolution of Muslim Marriage Act, Talaq-e-Tafweez, and Khula, provides insight into the complexities of marital dissolution within the Muslim community. Ongoing legal developments may further shape the procedural aspects and grounds for divorce under Muslim law.

Mubarat: 

Mubarat, recognized under the Muslim Personal Law (Shariat) Application Act, 1937, is a form of divorce requiring mutual consent. In the case of Mrs. Saba Adnan Sami Khan v. Adnan Sami Khan (2010), the Bombay High Court deemed Mubarat a single irrevocable divorce, terminating mutual rights and obligations. While not mandatory, seeking a court declaration of marital status is advisable.

Ila (Vow of Continuance): 

Ila, another form of divorce under the same Act, allows husbands to seek divorce by taking a vow to refrain from physical relations with their wives for four months. The application of Ila varies among Hanafi Sunni, Shia, and Shafi Muslims, influencing dissolution or the wife's right to seek divorce under specific conditions. It's worth noting that Ila is not practiced in India, as observed in the case of Masroor Ahmed v. State (NCT of Delhi) (2013).

 

Zihar (Inchoate Divorce): 

Zihar, applicable under the Muslim Personal Law (Shariat) Application Act, 1937, permits husbands to seek divorce by expressing dissatisfaction with their wives by comparing them to prohibited relatives. The husband can revoke the dissolution through acts of penance. However, like Ila, Zihar is not practiced in India, as confirmed in the case of Masroor Ahmed v. State (NCT of Delhi) (2013).

Lian

Lian, another recognized form of divorce, occurs when a husband accuses his wife of adultery. If the charges are proven false, the court can dissolve the marriage. Lian continues to be a valid form of divorce in India, as seen in the case of Masroor Ahmed v. State (NCT of Delhi) (2013). It involves a decree from the court.

Talaq

Talaq, described as a unilateral act by the husband, is recognized under the Muslim Personal Law (Shariat) Application Act, 1937. The right to pronounce talaq rests solely with the husband, and it doesn't require specific reasons. The article further delves into subtypes like Talaq-e-Ahasan, Talaq-e-Hasan, and Talaq-ul-Biddat. While it is not mandatory, obtaining a court declaration of marital status is advisable.

 

 General Rules of Talaq: 

The article outlines general rules under Muslim law, such as the husband's requirements for puberty and sound mind. Differences exist between Shia and Sunni laws regarding witnesses, pronouncement, and communication of talaq. Notably, the article emphasizes that talaq pronounced in extreme anger may be considered invalid. The article also explores dissenting opinions in various legal cases.

Talaq-e-Ahasan is considered the most acceptable form of talaq in Islamic law. During the period of "tuhr," when the wife is not menstruating, the husband pronounces the words 'I talaq thee.' Following this, a waiting period called "iddat" of 3 lunar months or 3 menstrual cycles ensues. If reconciliation doesn't occur during iddat, the marriage dissolves. It is unique as the marriage persists during iddat, allowing the husband a chance to revoke the talaq. This opportunity is absent in other forms where iddat starts after divorce.

Talaq-e-Hasan involves the husband uttering talaq twice in consecutive months during tuhr, with a final pronouncement in the next tuhr. The marriage ends automatically on the third pronouncement, initiating iddat. Physical relations cease after the first pronouncement, and the husband can revoke the talaq before the third pronouncement. If a single pronouncement is made during tuhr, distinguishing between Talaq-e-Ahasan and one of Talaq-e-Hasan's three pronouncements becomes challenging.

Talaq-ul-Biddat entails a single irrevocable pronouncement or three consecutive pronouncements resulting in irreversible marriage dissolution. The 2017 Shayara Bano v. Union of India case declared triple talaq illegal. The majority judges, led by Justice Kurian Joseph, held that practices contrary to the Holy Quran violate Shariat and are thus impermissible. Justices Lalit and Nariman found triple talaq not integral to religion, deeming it arbitrary and violative of Articles 14 and 21. Justices Khehar and Abdul Nazeer dissented, asserting its religious significance. The 2019 Muslim Women (Protection of Rights on Marriage) Act criminalized instant triple talaq, making it punishable with imprisonment and a fine.

 

Parsi marriage and Divorce Act of 1936

The Parsi Marriage and Divorce Act of 1936, amended in 1988, delineates various grounds for divorce within the Parsi community in India. These include situations such as continuous seven-year absence, pregnancy by another man with the condition that the husband was unaware at the time of marriage and refrained from engaging in sexual activity thereafter, failure to consummate the marriage within the first year, and instances of insanity, provided the other spouse was unaware of it at the time of marriage. Other grounds encompass grave sexual offenses, cruelty, transmitting a venereal disease or forcing a spouse into prostitution, imprisonment for seven years or more, desertion for two years or more, and the inability to live together even after a maintenance order or court-ordered separation. To seek dissolution of marriage under this Act, a plaintiff must file a suit by presenting a plaint. The courts are required to inform the registrar under section 10 about the divorce proceedings.

The divorce rate in India is very low, however the incidence of divorce in India is gradually increasing. The divorce laws lay down the divorce process in India, as envisaged under different personal laws. It is advisable to always engage a divorce lawyer, for the purposes of divorce in India. This helps makes the divorce procedure in India, easily navigable and also helps reduce unnecessary inconvenience.

Navigating Divorce Papers in India: Understanding Requirements and Legal Procedures
Divorce/Dowry

Navigating Divorce Papers in India: Understanding Requirements and Legal Procedures

The process of divorce in India is a complex journey for the individuals involved. It often involves a lengthy legal procedure and includes the submission of multiple documents and evidences. The dissolution of marriage requires handling the divorce papers and understanding the legal requirement furthering the process. From the different laws for diverse communities to specific grounds for divorce, the process involves varied documents and considerations.

 

 

 

 

Marriage and Divorce Laws in Different Communities

In India, the dissolution of marriage is handled by family or divorce lawyers who specialize in managing the legal termination of the marital relationship. The process can be intricate, requiring meticulous drafting and submission of divorce papers. The emotional toll on the parties involved can be significant, especially when awaiting the divorce decree.

India is a land of diverse cultures and religions, each with its own marriage and divorce laws. Hindus, Sikhs, Jains, and Buddhists fall under the purview of the Hindu Marriage Act of 1955. Muslims adhere to the Muslim Marriage Act of 1939, and the  Special Marriage Act of 1956 accommodates individuals from different cultural backgrounds.

Divorce by mutual agreement happens when both the husband and wife decide to end their marriage, showing that they've been living separately for over a year and are unable to reconcile. This type of divorce lets the couple settle matters like children's custody, property, and support amicably. Courts might suggest a waiting period of 6 to 18 months to encourage reconciliation before finalizing the divorce. Living apart doesn't always mean living in different locations; it simply means they haven't been living as a married couple during this time. Section 13B of the  Hindu Marriage Act, 1955 addresses mutual divorce, which is usually faster and less costly compared to a contested divorce.

However, if one party withdraws their consent even after the waiting period, the divorce will not be granted. Contested divorces, on the other hand, happen when there's conflict and disagreement between the husband and wife. These involve specific grounds listed in Section 13 of the  Hindu Marriage Act, 1955. Child custody and other matters are often unresolved in contested divorces. The law provides 11 grounds for divorce, with 5 exclusives to the wife against her husband.

Understanding alimony in divorce proceedings:  alimony a crucial aspect in filing divorce papers in India, refers to the financial support one spouse must provide to the other after separation or divorce. It is not automatically granted and is decided by the court based on several factors like marriage duration, financial positions of both spouses and child custody. Seeking legal counsel helps in efficiently claiming alimony as per the  Marriage and Divorce Acts.

 

Divorce on Different Grounds Several grounds are considered valid for divorce  in India, each requiring specific  original divorce papers:

1. Cruelty: Evidence of any cruel behaviour or incidents causing mental or physical harm.

2. Adultery: Evidence proving the extramarital affair, including witness statements or DNA evidence.

3. Desertion: Proof of a spouse’s voluntary abandonment for a specified duration.

4. Unsoundness of Mind: Medical certification of the mental disorder and evidence indicating its existence before marriage.

5. Incurable and Severe Leprosy: Medical certification and proof that the petitioner was unaware of the condition at the time of marriage.

6. Religious Conversion: Evidence of formal conversion ceremonies and renunciation of Hinduism.

7. Venereal and Communicable Diseases: Medical evidence proving the absence of the disease at the time of marriage.

8. Adoption of a New Religious Order: Evidence of embracing celibacy or a religious order recognized by Hinduism.

9. Failure to Comply with Judicial Separation or Restitution of Conjugal Rights: Documents indicating the failure to resume cohabitation.

10. Presumed Death: Evidence of a spouse missing for seven years.

 

Considerations in a divorce  When a husband and wife seek a  divorce, they need to settle three crucial aspects. Firstly, they must agree on alimony or maintenance, with no legal bounds on the support amount. Secondly, child custody demands careful deliberation, often consuming considerable time in non-mutual divorces. In mutual consent divorces, child custody arrangements can range from shared to joint or exclusive, depending on the couple's understanding. Lastly, the division of property, both movable and immovable, including bank accounts, must be decided upon by the couple. Fairness is not mandatory; agreement between both parties is key.  Divorce costs  Filing fees for divorce are minimal; however, the primary expenses revolve around lawyer fees, which vary depending on the case's intensity.  Legal representation and court appearances can range from a few thousand rupees to several lakhs, depending on the complexity and level of conflict in the divorce proceedings. Filing divorce papers in India involves meticulous documentation and adherence to specific grounds for divorce. Each case requires careful assessment, evidence submission, and legal expertise. Seeking guidance from a divorce lawyer prior to filing divorce papers in India, is advisable to navigate the complexities of divorce proceedings effectively and this helps in getting an original divorce decree. Understanding the legal requirements and providing original divorce papers are key aspects of facilitating the divorce process in India.

Explained: Restitution of Conjugal Rights in India
Divorce/Dowry

Explained: Restitution of Conjugal Rights in India

Marriage as an institution is essential to the development of society.  Family is formed by marriage, hence it is equally true to say that marriage is a subset of family. Due to the accelerated pace of life in our day, many disputes arise within marriages. These factors collectively have led to the discord among married couples. 

What are conjugal rights? 

Sharing a marital life means having the companionship of the person you are married to. It is not uncommon in a lot of cases for one of the spouses to withdraw said companionship without any explanation and justification. Section 9 of the Hindu Marriage Act provides a legal entitlement where the aggrieved spouse can apply to the district court to regain the companionship of their partner who has abandoned the relationship. This is called the restitution of conjugal rights.

A consent decree for the restoration of conjugal rights may be given, and it won't be null and void, according to Section 9 of the Hindu Marriage Act of 1955. If it is not challenged through an appeal or another legal means, at which time it becomes conclusive. Such a command cannot be ignored, but if it is, the Hindu Law Marriage Act of 1955 allows for its use as a ground for divorce under Section 13 (1A). If the lawsuit for restitution of conjugal rights is successful and one spouse is found guilty of separating without a good or sufficient reason, then the pair must remain together.

Also read:  Divorce on Grounds of Adultery in India

As a result, it can likewise be assumed that section 9 is the marriage-saving provision. In the case of Moonshee Bazloor v. Shamsoonaissa Begum 1866-67 (11) MIA 511, the privy council first used this remedy in India after having previously used it in England. However, in England, this matrimonial remedy—restitution of conjugal rights—was abolished in 1970. The requirements for the fulfillment of Section 9 are as follows: 

  1. Spouses should not be residing together. 

  2. There must be no reasonable ground for the party to withdraw from the marriage. 

  3. Application for restitution of conjugal rights is a prerequisite.

Also read: Legal Child Custody Rights in India 

Scope of Restitution of Conjugal Rights

The remedy of restitution of conjugal rights is accessible in India to people even beyond the scope of Hindu Marriage Act. It applies to: 

  1. Muslims under ordinary law. 

  2. Hindus, according to Section 9 of the Hindu Marriage Act.

  3. Those who are are considered under Section 36 of the Parsi Marriage and Divorce Act, 1936.

  4. Under the Indian Divorce Act, 1896, Section 32 - 33, to Christians.

  5. To those who fall under Section 22 of the Special Marriage Act. 

Also read: Cruelty: As A Ground For Divorce

On what grounds can an Order for Restitution of Conjugal Rights be passed?

The following are the grounds that are sufficient for the court to grant the restitution of conjugal rights order:

  1. The petition will be granted if the petitioner can persuade the judge that the respondent (spouse) withdrew from society without presenting a legitimate reason.

  2. The court found no legal reasons why the aggrieved spouse shouldn't be given the restoration of conjugal rights because the petitioner's (the aggrieved spouse's) allegations in the petition are valid.

The court may refuse to reinstate marital rights for the following legal reasons:

  1. Any grounds the respondent may have used to get a court separation order, a divorce, or a declaration that the marriage is null and void.

  2. Any actions taken by the petitioner or events that might suggest that the petitioner is abusing his or her rights or any inability to secure such relief; any other reasonable explanation for the petitioner's social isolation.

Constitutional Validity Right to Privacy

The Andhra Pradesh High Court issued a relatively progressive ruling in the matter of T. Sareetha v. T. Venkatasubbaiah, AIR 1983 AP356, where the Court found that Section 9 seriously violated the privacy rights of spouses. This ruling was a step toward rectifying this feudal law that violated people's fundamental rights under the pretence of protecting marriage ties. In the matter of Harvinder Kaur v. Harmander Singh Chaudhary AIR 1984 Delhi 66, the Delhi High Court took a different tack. The Supreme Court's decision in the case of Gobind v. State of Madhya Pradesh was upheld by the Court in this instance. The Court maintained Section 9 as a clause protecting the sacredness of marriage. It made a distinction between sexual connections and the idea of consortium or cohabitation as it applied to marriages. Furthermore, Section 9 only requires cohabitation between spouses; it does not mandate sexual interactions within a marriage. By ruling that courts lack the ability to uphold this basic right in an individual's private area, this judgement trimmed down the reach of the right to privacy. 

Although the judge correctly identified the underlying purpose of Section 9, she was mistaken when she claimed that this clause had no bearing on an individual's right to privacy. Enforcing cohabitation on a spouse puts them and their fundamental rights in severe danger in a nation where marital rape is still not recognised as a crime.

Although the Court was right to say that the aforementioned rule does not require sexual interactions, the lack of a law to ban marital rape presents a gap that could be exploited by getting a decision on restitution of conjugal rights. The landmark K.S. Puttaswamy v. Union of India decision clearly established that a person's right to privacy includes their ability to control their own body. Therefore, putting a person at risk of losing their autonomy over their own body—a freedom essential to the fundamental right to live with dignity protected by Article 21 of the Constitution—is incredibly unfair.

Article 14 and 21of the Indian Constitution

The constitutionality of Section 9 of the Hindu Marriage Act  was contested in Smt. Saroj Rani vs. Sudarshan Kumar Chadha, 1984 AIR 1562, before the Hon'ble Supreme Court. The Honourable Supreme Court declared that a husband or wife's right to be with their spouse does not have legal standing in India. The institution of marriage includes the legal right to divorce. Section 9 of the Hindu Marriage Act contains enough protections to keep it from turning into a dictatorship. If the decree for the restoration of conjugal rights in the aforementioned Act is viewed in its proper context and the manner of execution in cases of disobedience is taken into consideration, it was also decided that Section 9 of the Act does not violate Article 14 or Article 21 of the Constitution. 

Also read:  Alimony Explained: How To Calculate Alimony/Maintenance In India

The Hon'ble Supreme Court received a new petition challenging the constitutionality of Section 9 of the HMA in Ojaswa Pathak and Anr. vs. Union of India, WP (C) 250/2019. This case is likely to be affected by the Hon'ble Supreme Court's decisions in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, and Joseph Shine v. Union of India, (2019) 3 SCC 39, where the Court ruled that certain laws were unconstitutional.

It is quite challenging to bring two people together when they are emotionally estranged from each other. Restitution of conjugal rights is one such matrimonial remedy because it will compel the spouse to save the union but cannot ensure its success. Additionally, some claim that it goes against the idea of natural law theory. 

Desertion As A Ground For Divorce In India
Divorce/Dowry

Desertion As A Ground For Divorce In India

Marriage is viewed as a sacrament to protect it as a social institution. It was once thought that this unique contract could only be terminated when one of the couples committed a crime that devalued the significance of this institution.

Desertion is described as a "complete repudiation of the obligation of marriage" in Halsbury's Laws of India. In its literal sense, the word "desert" implies "to abandon, give up, or forsake without any good reason or intention to return." One partner is considered to be "at fault" in a marriage if he or she quits the union without good reason.

Desertion refers to the act of withdrawing from marriage obligations. It is a denial of the essence of any marriage partnership, which is living together. It is a complete breach of marital obligations. The following are the basic prerequisites for desertion – 

  • Factum of separation of one spouse from other.

  • Animus deserendi, i.e., intention to desert permanently.

  • The deserted spouse must not have agreed to the desertion.

  • The desertion must be without reasonable cause.

  • For at least two years, this situation must have continued.

It must be proven that the other party deserted the petitioner for a continuous period of at least two years immediately prior to the presentation of the petition without a valid reason or against the petitioner's wishes in order to achieve divorce on this ground.

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However, before granting the divorce judgment on this basis, the court must be completely satisfied that the respondent had animus deserendi, or the intention to desert, and for that reason, the circumstances and the reason why desertion has occurred will be considered. The animus deserendi would not exist if there were a true cause.

 

Origin and Development of Desertion as a Ground for Divorce in India:

Divorce was not recognized under uncodified Hindu law unless it was permitted by custom. The rationale was that in Hinduism, a husband and wife's marriage was an unbreakable bond. However painful cohabitation could be, divorce was not permitted under the previous legal system.

The Hindu Marriage Act of 1955 (“the Act”) only recognized desertion as a ground for judicial separation. However, under Section 13(1)(i-b) of the Act of 1976, this is now a basis for both divorce and judicial separation. Desertion could be constructive or actual. The traits of cruelty may be present in constructive desertion. Real desertion involves leaving the marital residence, whereas constructive desertion involves leaving the marital union. The animus deserendi must go along with this abandonment of the married union. Constructive desertion is the exclusive fault of the neglectful spouse.

Also readFastest Divorce Process: How to Get a Quick Divorce

 

Termination of Desertion Based on Circumstances:

Desertion is a continuous offence. By doing something or acting in a certain way, the deserting spouse can stop the situation of desertion. These are some possible ways that it could end: Resumption of cohabitation, resumption of marital intercourse and supervening animus revertendi, or offer of reconciliation. 

In Gagandeep Gupta v. Dr. Sonika Gupta, AIR 2010 (NOC) 543 (P&H), on the grounds that his wife had deserted him, the husband filed for divorce. The parties did not cohabitate after their separation. Despite marital strife, the wife maintained her right to live in the marital home by claiming it as her own. Before the petition was presented, the wife had abandoned the husband for more than two years without a valid explanation. The judge decided that the husband would be eligible for a divorce decree.

In Bipin Chandra v. Prabhawati, AIR 1957 SC 173, the wife and her husband lived together in harmony. He spent a short while in England, and during that time, his wife grew close to an old friend of his. They wrote each other letters, which the wife's father-in-law received. She remained silent when her husband questioned her about it before leaving the following day for her parents' home. Later, her spouse sent the child a letter that was written to her. As a result of his refusal to allow his wife to return, he later filed for divorce on the grounds of desertion. The Supreme Court ruled that even though the wife left the marital home without a reason, she would not be considered to have deserted if she later indicated a desire to return but was forcibly stopped from doing so by the petitioner. In other words, there was no "animus deserendi" during the required term. When factum of separation and animus deserendi occur together, desertion becomes a crime. It's not required for them to start at the same time, though.

 

Burden and problem of proof

The Court has ruled that the petitioner has the burden of establishing desertion and all of its aspects because, typically, the weight of proof falls with the party who affirms a fact, not the person who disputes it. Since it is "so much easier to show a positive than a negative," this principle makes sense. However, the courts frequently deal with the issue of contradicting evidence, making it challenging to determine which of the two spouses' competing versions of the facts is true. This is particularly true given that these situations typically take place within the private confines of a home and that the lack of eyewitness testimony makes it difficult to establish the truth.

Also read:  Alimony Explained: How To Calculate Alimony/Maintenance In India

Conclusion

In conclusion, it may be concluded that while desertion may be seen as a fault-based basis for divorce, there are ways for the guilty spouse to get around the rules and thwart the justice of the deserted spouse. There are two potential answers to this issue: either establish new law that addresses these opportunities for abuse or move toward the idea of irretrievable breakdown of marriage so that the deserting spouse is not required to take use of the legal framework for desertion.

Divorce on Grounds of Adultery in India
Divorce/Dowry

Divorce on Grounds of Adultery in India

There are numerous grounds laid down in the Hindu Marriage Act (and other marital laws) that list adultery as a valid reason for divorce. The foundation of adultery-based divorce is the idea that marriage ensures that your spouse is on an equal footing with you. 

Legally, any spouse may petition a court for a divorce on the grounds that the respondent engaged in voluntary sexual activity with someone other than his or her husband after the marriage was solemnized. 

The individual making the accusation has the burden of proving adultery. Since sexual activity occurs in solitude or secret, it must be proven by circumstantial evidence that leads to the inevitable conclusion of adultery, even though direct proof is rare even with the development of all methods to catch it. The prudent man must pass the test. It is not necessary to show adultery beyond a reasonable doubt in a civil or divorce case because the evidence required is not as strong as in a criminal prosecution.

Also Read: How Can You Marry Your Foreign Soul Mate In India, Legally? 

Adultery as an offence in India

The following are the necessary elements for adultery to be committed: 

  1. There should be sexual activity occurring outside of marriage, and this activity should be voluntarily.

  2. The extent to which circumstantial evidence can be deemed as proof of adultery has been disputed in a number of court rulings. As a result, the Odisha High Court ruled in the case of Banchanidde v. Kamladas that the circumstances had to be so strong that adultery was the only conclusion that could be drawn.

However, the Madras Court ruled in the case of Subbarma v. Saraswathi that it is possible to assume that adultery has taken place when a stranger is discovered with the wife after midnight. In the case of Maclenna v. Maclenna, the courts were forced to decide whether the use of an artificial insemination donor (AID) by the wife without the husband's consent might be considered adultery.

Also read:  Divorce Law in India

Proof of Adultery: 

Allegations of adultery must be explicitly stated along with the circumstances surrounding the alleged adultery. The petition must provide particular instances of the adultery, including the time, place, and parties involved. Additionally, the petition can be amended for cases that have already been filed. The following evidences, among others, can be used to show adultery:

Courts have upheld the claim of adultery in the following situations: (a) Wife had been missing from her home for a while and had been spotted with a stranger to her husband's family without a valid excuse or any other explanation.

(a) A stranger was discovered in actual physical proximity to the wife and alone in her bedroom after midnight.

(c) A child born more than a year after the spouses' marriage has ceased to be in consonance.

(d) Post-suit adultery evidence is admissible to support and clarify other evidence presented in the case as well as to demonstrate the nature and calibre of the prior deeds.

(e) Letters from an unlawful connection that were received from a paramour.

(f) The wife's written admission of infidelity.

(g) To establish adultery, disinterested witnesses must testify that they saw the respondent sharing a bed with a different individual on certain nights.

(h) Just one incidence of a wife engaging in consenting sexual activity with another person suffices.

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The court has rejected the claim of adultery in the following instances.

(a) The co-holding respondent's wife's breasts in his hands, while she is in a restaurant cabin with her blouse and brassiere unhooked, is insufficient to establish adultery.

(a) No evidence of adultery was detected when the wife was observed riding another person's scooter or conversing with someone other than her husband.

(c) There is no evidence to support the wife's alleged infidelity when she was seen with another person in a room at 10 p.m. with the door closed but unlocked while the husband's mother and five adult children were present.

(d) Just because a male relative writes a married lady letters does not imply that there was an unlawful relationship between the writer and the recipient.

(e) A wife getting pregnant after her husband had a vasectomy without evidence that the procedure was successful eliminates any possibility of a wife having an illicit relationship.

(f) When the husband does not state this accusation in the notice of divorce prior to the filing of the lawsuit, serious concerns may be raised about the wife's alleged infidelity.

(g) When the husband files the divorce petition 8 years after learning that his wife has been having an extramarital affair and has not given a single explanation for the excessive delay.

(h) The mere fact that the alleged adulterer is in the parties' bedroom does not amount to an adulterous act.

(i) The wife's masturbation of the co-respondent is not adultery.

(j) The husband's claims that he observed his wife conversing with someone else three times during the day without any physical touch are insufficient.

While Adultery as an offence has been decriminalized, it still remains a valid ground for divorce.

 

Latest judgement by Delhi High Court: (updated on May 10, 2023). 

The Delhi High Court, in favor of a wife's plea to produce evidence substantiating her adultery charges against her husband, has reiterated that Article 21's right to privacy is not absolute. The ruling noted that Section 14 of the Family Courts Act grants broad powers to the Family Court to accept any evidence that might help resolve disputes, regardless of its relevance or admissibility under the Indian Evidence Act. In the case at hand, post-marriage disputes led the wife to serve a legal notice alleging the husband's infidelity and domestic violence. To support her adultery claims, she sought booking details and CCTV footage from Hotel Fairmont, Jaipur, where she alleged her husband stayed with another woman. After the hotel denied her request, the Family Court allowed her application for the preservation of CCTV footage and the husband's mobile call records.

 

Cruelty: As A Ground For Divorce
Divorce/Dowry

Cruelty: As A Ground For Divorce

At our blog, we aim to give our readers useful information about common legal issues in a simple and easy-to-understand way. Recently, we've been talking a lot about divorce - why people decide to end their marriages, the different kinds of divorce, and the steps you need to take to get a divorce. Getting married is usually a joyful event where people are hoping for a happy future. But sometimes, marriages don't work out and people feel they have to get a divorce. There can be many reasons why a marriage breaks down - it could be constant arguments, different viewpoints that can't be resolved, money troubles, family conflicts, one person having a relationship outside the marriage, changing religion, mental health issues or illnesses that can be passed on to others. We hope that our posts can help our readers understand these issues better. In this post, we are going to share details about one of the most common issues that couple face in a troubled marriage – cruelty – and how it becomes a ground for divorce.

Read More: Divorce Decree versus Divorce Certificate – What is the Difference?

It is important to note here that we are explaining the details considering the Hindu religion as covered by the Hindu Marriage Act, 1955. However, different religions may have slightly different rules of dealing with trouble marriages. Hence, it is important to consult a qualified divorce lawyer for taking proper guidance on the matter.

What is cruelty?

While there is no clear definition of cruelty mentioned in the Hindu Marriage Act, 1955, there have been various judgements passed by the honourable Supreme Court of India, that are used to define cruelty. These judgements can be taken into consideration when one of the partners in a troubled marriage considers for filing a petition keeping cruelty as a ground for divorce.

In general sense, cruelty is a form of violent behaviour exhibited by an individual towards his or her spouse that potentially disturbs her mental and emotional peace or harms her physically and sexually. As mentioned above there is no comprehensive definition available to denote such a behaviour in the court of law. However, once the conduct of an individual goes beyond reasonable limits and creates unpleasant living conditions for his or her spouse, the family court may treat the behaviour as cruelty and consider it as a ground for divorce.

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What are the forms of behaviour that can be considered as cruelty?

As we mentioned briefly above, cruelty can broadly be divided in three types – physical, mental and sexual. Let us have a closer look to understand more.

  • Physical cruelty – when an individual repeatedly exhibits violent and outrageous behaviour towards his or her spouse, it is called as physical cruelty. This is also commonly known as domestic violence. Sometimes, not only the individual but his or her family members also behave in a violent manner to overpower the spouse and show their supremacy or fulfil their ego. Such violent behaviours can lead to severe bodily injuries and sometimes even death to the affected person. Family courts view this type of behaviour as an extremely serious issue. However, petty arguments every now and then, between husband and wife or their respective family members does not tantamount to physical cruelty.
  • Mental cruelty – This is another form of behaviour where an individual is not violent towards his or her spouse. However, the individual repeatedly uses abusive language for ill treating and humiliating his or her spouse either in front of the family members or friends. Another form of this type that can be considered as mental cruelty is:
    • when an individual shouts or yells or taunts his or her spouse unnecessarily on petty family matters.
    • when an individual restricts the freedom of his or her spouse.
    • not disclosing details of serious disease or sexual illness prior to marriage.

 

Such behaviours mostly do not lead to any physical injuries but are extremely demoralising, insulting and demeaning for the suffering spouse. Hence, the family court may consider such behaviours as a form of cruelty and make it a ground for divorce.

  • Sexual cruelty – This is another behavioural pattern where, intentionally and repeatedly:
    • the individual denies having sex or physical relationship with the spouse
    • the individual establishes extra marital relationship outside of his or her marriage
    • the individual has sex with the spouse without consent (nowadays, also called as marital rape)
    • the individual engages in extreme unnatural sexual behaviours with the spouse

Such behaviours off late have been viewed as very serious by the court of law, as they not have the potential to cause permanent physical damage or severe injury to private parts of the affected spouse but can also lead to mental health issues like depression and post-traumatic stress.

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Such type of behaviours often remains unreported especially in the Indian society where marriage is considered as a sacred institution. Several studies have shown, lack of awareness, as one of the major reasons. However, with the passage of time, things are changing and the legal fraternity is working towards strengthening the laws to address such issues, once reported, properly and timely.

Why a divorce lawyer is required?

There is a common saying – marriages are made in heaven. People marry to live a better life but knowingly or unknowingly end up living in bitter relationships. The only solution remains for such troubled marriages is divorce, especially when the sole reason is cruelty. It is only prudent to get professional help from a competent and knowledgeable divorce lawyer who will help you for getting the broken marriage dissolved in family courts within the boundaries of law.

You can cosult a divorce expertOnline Legal Consultation