How to apply for divorce without mutual consent in a Hindu marriage
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Overview: It is not necessary that both the spouses have to agree to file for a divorce. One of them may file for a divorce without the others’ consent if they are sure that they have strong grounds for breakdown of the marriage. 

Purpose: To put an end to a marriage this is not reparable or has broken down irretrievably. Since this plea for divorce is brought by one of the spouse, issues such as alimony, child custody rights and property rights are left to be decided by the court. 

Areas of Application of Law: The law applicable would be different and depend on which law they got marriage registered in. If they married under the Hindu Marriage Act, 1955 (Hindus, Buddhists, Sikhs, Jain), its rules would apply. If they were married under the Special Marriage Act, 1954 (secular law), its rules would apply. 

Process: Below is the step by step process for obtaining a divorce without mutual consent: 

  1. It is imperative that the parties have been living separately for at least a year before they can apply for a divorce.
  2. Engage a lawyer who will understand your situation and file the divorce petition in the requisite forum, family court at the district level. You will be required to share all information that could form a ground for divorce and submit all below mentioned documents for this purpose.
  3. The applicant should ensure that he has read and understood the bail petition prepared by the lawyer before he files it and thereafter make sure that all affidavits and Vakalatnama (giving the lawyer the rights to represent you in court) are duly signed by him.
  4. There are certain grounds under which the applicant filing for divorce must fit in to be granted a divorce decree by the court. These include:

    Adultery: This can be taken as a ground if the applicant’s spouse has indulged in sexual relations with anyone other than him//her. One single act of adultery is at times enough to be granted divorce.

    Cruelty: This would be a ground if the applicant has been subjected to any kind of mental or physical torture at the behest of their spouse. This could vary depending on different situation and could include continuous ill treatment by in laws, abuses etc.

    Desertion: This could be a ground if the spouse abandons the other for at least a period of two years.

    Conversion: This would be a ground if the spouse has converted to any to any other religion.

    Mental disorder: This would be a ground if the spouse suffers from incurable mental disorder due to which it is impossible for them to live together as husband and wife.

    Leprosy and venereal diseases: This would be a ground if the spouse is suffering from leprosy or communicable diseases such as AIDS.

    Renunciation: This would be a ground if the spouse has given up on all wordly affairs by embracing a religious order.

    An applicant’s spouse not being heard of for seven years or more is also a ground for divorce. 

  5. On the first day of hearing, if the court is satisfied of merits in the case, a notice will be issued to the opposite party and date for the next hearing will be given.
  6. Within a few days from the first hearing, the applicant has to file requisite amount of process fee with the court registry. After this the notice will be prepared by the court authorities and this along with a copy of the petition will be served upon the spouse either by the court through speed post/courier/ordinary post/email who will be asked to be present in court on the next date of hearing.
  7. On the next date, the spouse will contest the grounds on which divorce is sought and the applicant’s lawyer will establish the grounds under which divorce is sought.
  8. The arguments in the case will go on for such time period as depending on the facts and circumstances of each case.
  9. Once the arguments conclude, the court will grant a divorce decree.
  10. The court will also decide on alimony, child rights keeping in mind the best interest of the child, and other division /transfer of assets. 

Documents required to be submitted in the court:

  • Marriage certificate
  • Address proof of husband and wife
  • Evidence showing that they lived in separation for a year
  • Passport size photographs
  • Income tax returns for three years
  • Evidence showing attempts at reconciliation
  • Birth certificate
  • Family members information 

Punishment/Expected Relief: Freedom! Both the parties would be legally and officially unmarried under the divorce decree granted by the court. 

Landmark Judgments:

1. K. Srinivas Rao vs D.A. Deepa

2. Savitri Pandey vs Prem Chandra Pandey

 

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