SUN LEGAL CONFIDENTIAL
DIVORCE UNDER HINDU MARRIAGE ACT OF 1955

DIVORCE UNDER HINDU MARRIAGE ACT OF 1955

INTRODUCTION:

Marriage is a eight-letter word that by itself forges a bond between two people and their families. But in Hindu marriages, divorce was completely unheard of until 1955. The traditional view holds that marriage is not only a relationship or a bond that lasts for the present world but also a bond that endures forever. As a result, the importance of remaining together was so ingrained in Hindu society that being divorced brought with it stigma and prejudice. Divorce was a common practice in Hindu communities, especially in the so-called lower social strata. Even so, the Hindu Marriage Act was taken into consideration due to the shifting needs of society, and ultimately the divorce provision also found a place in the Hindu Marriage Act.

Marriage is an institution in which two individuals commit to each other and work for their mutual well-being; as a result, families are raised and an inseparable attachment is formed. Human beings are unpredictable, so when the concept of marriage exists, does the concept of divorce.

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CONCEPT OF DIVORCE:

The term "divorce" had not been defined by statute, but it could be defined as a legal dissolution of judicial ties established during marriages. Thus, divorce can be viewed as a way to end a marriage that occurs not only between two individuals but also between two families. There are two kinds of divorce: mutual divorce and contested divorce. In this article, we will go over the differences between these two kinds of divorce.

CONTESTED DIVORCE

A contested divorce is one in which both parties do not agree on the same issue. At the heart of such divorce cases must be an underlying dispute in the marriage. The parties are also generally unable to agree on divorce-related issues, i.e. one wants to divorce while the other does not, and thus the court must intervene in the family's personal affairs to either try and reach an amicable happy ending or examine both sides and ultimately rule that there can be no reconciliation and grant the divorce.

GROUNDS FOR A CONTESTED DIVORCE:

 

A contested divorce is solely based on the grounds accessible to the parties of a marriage, and they must prove at least one of these grounds in court. These grounds are mainly the requirements that must be met in their entirety. These are the grounds:

a)      Adultery: If one of the spouses engages in voluntary sexual intercourse with another married or unmarried person, this is grounds for divorce. This is the loyal spouse's right, and he or she may file for divorce at any time. This is recognized as a ground for divorce in all religious laws governing marriage and divorce. The alleged infidelity does not have to be in effect when one spouse files for divorce. The essential principle for contesting divorce on this ground is that the spouse alleging the affair must prove the affair.

b)      Cruelty: In the context of the Hindu Marriage Act of 1955, cruelty was not listed as a ground for divorce, but this changed after the Act was amended in 1976. However, no legal regime has precisely defined the term "cruelty," and it is interpreted differently depending on the context, such as physical or mental, subjective or relative, intentional or unintentional, direct or indirect.

c)      Desertion: Another prevalent ground for divorce recognized by all divorce laws in the country is desertion. It essentially refers to the abandonment or forsaking of one spouse for no apparent reason or against the wishes of the other spouse. Desertion has two components, ii) factum detachment ii) Animus deserendi Furthermore, Section 13(1)(ib) of the Hindu Marriage Act, 1955 stated that such desertion must be without any reasonable cause or the consent of the spouse filing for divorce, and must last for a continuous period of two years.

d)     Conversion: The conversion of one spouse to a different religion is a valid reason for divorce. Although it is not recognized as a ground in the Dissolution of Muslim Marriage Act of 1939 and the Special Marriage Act of 1954, it is recognized in other divorce laws. Section 13(1)(ii) of the Hindu Marriage Act of 1955 governs conversion as a divorce ground in Hindus. When construing this ground, make sure that consent for such conversion does not become a defense in granting a divorce.

e)      Grave Mental Disorder: According to the Hindu Marriage Act, mental disorder is grounds for divorce. However, such disorder or unsoundness must be severe and incurable in nature. Initially, the judgments of the courts based on this ground were based on the discretion of judges case by case, but later on, the judgments of the English Courts laid down proper tests for analyzing the effect of this ground.

f)       Communicable Venereal Diseases: Venereal diseases are those that can be transmitted through sexual contact between two individuals, one of whom is already infected with the disease. Section 13(1)(V) of the Hindu Marriage Act, 1955, deals with this ground, and prior to 1976, it stipulated a three-year period for such disease to exist immediately before filing the petition. However, the legislature believed that imposing the time period would only violate the rights of another spouse, potentially exposing them to the communicable disease. As a result, the 1976 amendment introduced a new approach to this ground of divorce. This ground is a common reason for getting a divorce. However, because the goal of this ground is to keep the other spouse from becoming infected with such a disease, it also acts as a deterrent even before the marriage.

 

HOW TO FILE FOR A CONTESTED DIVORCE:

a)      Filing a divorce petition

When the spouse seeking divorce approaches his or her attorney, all necessary documents and information must be provided. An advocate will draft a divorce petition and file it in court after reviewing all of the information. In divorce cases, the family court institutions have primary jurisdiction. Following the filing of a petition, the other spouse is served with notices, either by the party himself/herself or by the court upon payment of charges.

b)      Appearance and Reconciliation

The parties appear in court after the notices have been served. If the court believes there is a possibility of conciliation between the parties, it refers the case to the Legal Services Authority, where the conciliators are present. They explore the possibility of settlement and act accordingly. If it is resolved, the petition is withdrawn from court; otherwise, the stages listed below are followed.

c)      Respondent spouse's response/counter-response

The respondent files a counter at this point. Because he or she is opposed to the divorce being granted, they must deny every allegation made in the petition. The denial in this case must be specific and cannot be an overall denial of allegations. If every allegation about a fact is not specifically denied, it will be interpreted as admitting such allegations. As a result, the respondent must take sufficient care to examine all of the denials made in the counter or enlist the assistance of others to scrutinize the response.

d)     Discovery

At this point, as documents and required information are produced in court, they will be made available to the other parties as part of the inquiry. It assists the parties in sharpening their positions by evaluating the other party's position and the evidence concerning the issues involved in the divorce.

e)      Settlement

The court resolves the points for consideration that must be decided after assessing the documents and information. These points will usually reflect the parties' unresolved conflicts regarding divorce or granting divorce in general. The court may also refer it to third-party negotiation at this point.

f)        Trial

At this point, the courts set dates for hearings and witness examinations. Prior to this, witnesses are summoned to appear in court on specific dates. The above stage also involves the cross-examination, final hearing, and so on.

g)      Orders/Decree

After concluding on all issues based on the arguments and evidence presented, the court issues orders or a decree granting or denying the divorce.

h)        Appeal

The decree can then be appealed to the High Court with jurisdiction over the family court, and then to the Supreme Court. Under Section 28 of the Hindu Marriage Act of 1955, it is generally appealable. The time limit for filing an appeal varies, but in Hindus, it ranges from 30 to 90 days.

 

MUTUAL DIVORCE

Divorce by Mutual Consent, also known as Mutual Divorce, occurs when both husband and wife mutually agree that they can no longer live together and that the ideal option is Divorce. They would present a Mutual Divorce petition jointly before the honourable court, without making any allegations against each other.

 

REQUIREMENTS FOR A MUTUAL DIVORCE:

a)      There has been a minimum of one year of separate living for the parties. It is questionable whether the legislators intended for the parties to live apart voluntarily or as a result of external forces. But as long as the requirement of the parties' separate living under the same roof of the matrimonial home or in separate residence is met, it does not appear necessary for the court to look into that matter. The court should not go beyond the statutory limit of its jurisdiction unless the consent of any of the parties to such a petition is vitiated by coercion, fraud, or undue influence.

b)      For whatever reason, the parties have been unable to coexist. In other words, there is no room for compromise or adjustment between them.

c)      The agreement for the dissolution of the marriage has the parties' free consent.

d)     The petition may be withdrawn at any time by the parties. It appears that the petition may be withdrawn even at the request of one party within six months of the date it was presented. However, the unilateral right of a party to withdraw the petition appears to be barred when a joint motion is taken by the parties after the passing of six months but before the passing of eighteen months from the date of presentation of the petition for inquiring.

Documents required for Mutual Divorce:

a)      Proof of husband's address

b)      Proof of wife's address

c)      Details about the husband and wife's professions and current earnings

d)     Marriage Certificate

e)      Background information on the family

f)       Photographs of a husband and wife's marriage

g)      Evidence demonstrating that the husband and wife have been living apart for more than a year

h)      Evidence of failed reconciliation efforts

i)        Income tax returns

j)        Property and asset information for the parties

k)      Depending on the facts and circumstances of the case, additional documents may be required.

 

HOW TO FILE FOR A DIVORCE BY MUTUAL CONSENT:

To obtain a divorce by mutual consent, several steps must be taken. According to Section 13B of the Hindu Marriage Act, filing a petition is generally the first step in the mutual divorce process in India. Two motions are also a part of this process. The crucial actions are as follows:

a)      Joint Petition Submission:

The initial step is to submit a joint petition to the pertinent family court. Both parties must affix their signatures to this joint petition. The divorce petition includes a joint statement from both partners stating that they are unable to coexist and should be granted a divorce as a result of their irreconcilable differences. The agreement to divide the assets, determine child custody, etc., is also included in this statement.

b)     The appearance of Both Parties in Court:

Following the filing of the petition, the second step in the procedure is for both parties to the divorce to appear in family court. The court sets this date, and the parties appear with their counsels.

c)      Court's Scrutiny of the Petition:

The court then examines the petition as well as the documents filed by the parties. When and if the court is satisfied, it orders the recording of the parties' oath statements. In some instances, the court attempts to bring the parties together. When the parties cannot be reconciled, the divorce proceeding is initiated.

d)     Recording of statement and adoption of order on First Motion:

The court issues an order on the first motion after the parties' statements have been recorded under oath. Following that, the parties are given a 6-month period in which to file the second motion. This must be filed within 18 months of the filing of the petition for the first motion.

e)      Second Motion Appearance:

If both parties have not agreed to come together after 6 months of the first motion or by the end of the reconciliation period, they may appear for the second motion for the final hearing. This also includes the parties appearing in court and having their statements recorded. If the second motion is not filed within 18 months, the court will refuse to grant the divorce decree. Furthermore, the section and settled law make it clear that one of the parties may withdraw their consent at any time before the decree is issued.

f)       The decision of the Court:

The free consent of both parties is the most essential criterion for granting divorce by mutual consent. In other words, a decree for divorce by mutual consent cannot be granted unless there is a complete agreement between the husband and wife for the dissolution of the marriage and the court is completely satisfied. The court issues appropriate orders as well as dissolves the marriage based on the statements recorded by the parties and the specific facts and circumstances of the cases. The court then issues the divorce decree, and the divorce is now final.

 

CONCLUSION:

Marriage cannot succeed unless both parties are willing to put in the effort. As a result, when one party stops contributing to the relationship, a divorce can occur. In today's world, both kinds of divorces are quite common but a mutual consent divorce eliminates unnecessary disputes and saves a significant amount of time and money. With an increasing number of divorce applications being filed, mutual consent divorce is one of the best-provided options. Furthermore, the parties have the authority to decide on sensitive issues such as child custody, maintenance, and any other important issue. As a result, it is the simplest type of divorce, as well as the least expensive and time-consuming when compared to a contested divorce.

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