Divorce is the dissolution of marriage through a legal process by filing a petition in a court of law. When a court passes a divorce decree, it brings an end to the matrimonial coalition of spouses and therefore terminating all the marriage. Along with the separation of husband and wife, it also involves the separation of property, assets, and the issue of custody of the child. Divorce procedures and laws in India vary with each religion.
What are the types of divorce under Hindu law?
Divorce under Hindu law is classified into two types –
• Mutual Divorce: Under the Hindu Marriage Act, Mutual divorce is administered by Section 13-B. As the name recommends, in mutual divorce, both the parties i.e. husband and wife jointly agree and express their consent for pacific separation. The husband and wife have to prearrange the issues relating to alimony and child custody if any. There are only two requirements for filing a mutual divorce, one is mutual consent and the other is that they have to live separately for at least one year.
• Contested Divorce: When divorce is instigated by either spouse it is termed as a Contested Divorce. Section 13 of the Hindu Marriage Act, 1955 provides the grounds for filing a contested divorce, some of which are, cruelty, conversion of religion, unsound mind, communicable disease or either spouse is unheard for more than seven-year.
WHAT ARE THE GROUNDS TO OBTAIN CONTESTED DIVORCE?
Section 13 of the Hindu Marriage Act, 1955 expounds grounds on which contested divorce can be obtained.
1. Adultery- It is a criminal offence where either of the spouses is involved in sexual relations with someone out of the marriage.
2. Cruelty- It is defined as a willful act that can cause danger to body, limb, life or to mental health. It can include causing pain, abusing, torturing mentally or physically.
3. Desertion- When a spouse willfully abandons another without any intention of coming back, it is known as Desertion. Desertion for more than two years could be a valid ground for divorce.
4. Religion Conversion- In a Hindu marriage, if either of the spouses ceases to be a Hindu then it can be considered as a ground for divorce.
5. Mental Disorder- Mental disorder includes unsoundness of mind, mental illness, or such mental disorder which makes the person abnormally aggressive.
6. Communicable Diseases and Leprosy- Leprosy is a contagious and chronic disease that causes lesions on skins and nerve damage.
7. Spouse not heard of- If either of a spouse is not heard of for more than seven years, then it can be considered as a ground for divorce.
8. Renunciation of the world- Under the Hindu Law, the “Renunciation of the world” is a ground for divorce, if either of the spouses has renounced the world and has entered a holy order.
WHERE IS THE PETITION OF DIVORCE TO BE FILED?
According to Section 19 of the Hindu Marriage Act, 1955, the petition of divorce can be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:
1. The marriage was solemnized, or
(the place where the marriage ceremony was duly performed.)
2. The respondent, at the time of the presentation of the petition, resides, or
If both the parties are filing for divorce through a joint petition, then either of them can be respondent, so petition can be filed at either place of residence.
3. The parties to the marriage last resided together, or
Suppose husband and wife lived together at a different place other than their initial residence then they can file a petition in a court having jurisdiction over that place. Last resided means that they must have lived there for a substantial amount of time and not just visited the place for any occasion. in case the wife is the petitioner, where she is residing on the date of presentation of the petition, this sub-section carves out an except to section (iii) providing benefit to the wife. In case the petitioner is a wife then she can file the divorce petition at the place where she is residing.
4. The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
This is a very crucial ground as it gives liberty to either spouse to file a petition at his/her place of residence in case their spouse has deserted them or is beyond the jurisdiction of the Indian courts.
WHAT IS THE PROCEDURE FOR A CONTESTED DIVORCE IN INDIA?
The contested divorce is filed by either spouse based on the grounds mentioned above. The following are the steps to file for a Contested Divorce in India.
STEP 1: Draft a petition clearly stating the facts and grounds for seeking a divorce. This petition is filed before a family court having jurisdiction along with affidavits, vakalatnama, and documents relevant to the case.
STEP 2: If the court is satisfied after scrutinizing the petition and decides to move with the case, it sends a notice or summons the other party to appear on a decided date along with his/ her lawyer.
STEP 3: At this stage, the court will suggest parties for mediation and if the mediation fails to resolve the issue, the court will continue with the divorce proceedings.
STEP 4: On a fixed date, both the parties will appear before the court, record their statements, submit evidence, get cross-examined and will present their witnesses if any. Then the counsels from both sides will present their final arguments.
STEP 5: At last, the court on a fixed date will deliver the verdict and pass a divorce decree. The aggrieved party can appeal to the order passed within 3 months from the passing of such order.
WHAT ARE THE DOCUMENTS REQUIRED FOR A CONTESTED DIVORCE IN INDIA?
Documents required for a Contested Divorce in India are:
• Residence proof of husband and wife
• Documents related to the financial status of husband and wife like income certificate, tax returns etc.
• Marriage certificate
• Documents proving the ground on which divorce is being filed.
WHAT IS THE TIME LIMIT TO FILE DIVORCE PETITION
A petition for divorce can be filed by either husband or wife as per provisions of the Act after one year of from the date of marriage. No petition of divorce can be filed within one year of marriage as per Section 14 of the Hindu Marriage Act 1955.
CONSEQUENCE OF DIVORCE
Divorce can be stressful for the whole of the family but more stressful for children. Some children are strong enough to get over such stress but some take a lifetime to rebound. Apart from children, it is not easy for parties to have a settled life after the divorce.
BRIGHTER SIDE OF DIVORCE
Divorce is usually said to be evil in our society. A divorce can make someone’s life better than before. Article 21 of the constitution states that every person has a right to live their life at its own terms and with dignity.
CONCLUSION
Indian society has evolved a lot in the past decade. Yet divorce has become a more familiar word than before, our society has not accepted it in the way it should be. Due to which the parties remain silent and struggle to make adjustments in their marital life rather making the tough decision of getting divorced and be happy. It is still considered a battle between the right and wrong and not as a choice of individual like marriage.
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