Mutual divorce should always be preferred to a contested divorce. Obtaining divorce through mutual consent is quite advantageous as it saves both time and money. The provision for dissolving marriage through mutual divorce in India is included in Section 13 B of the Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976. Any marriage solemnized before and after the Marriage Laws (Amendment) Act, 1976 is entitled to this provision.
Though several laws have been passed with the progress of time, the divorce procedure in India is still complex and you will have to contest the divorce for several months. The Indian judicial law believes that the extended time span might workout well for the couple to reconsider their marriage and hence, a marriage will be saved from being dissolved forever.
A Brief Outline of the Procedure of Mutual Divorce in India
Mutual Divorce is to be filed by the couple only after they have lived apart for at least a year. A petition supported with affidavits for divorce should be filed in the district court by the both the spouses. The husband and the wife should jointly state to the court that they are unable to live together as they are facing immense difficulties in adjustment.
The filing of divorce petition by both the husband and the wife is legally known as the "The First Motion Petition for Mutual Consent Divorce". "The Second Motion Petition for Mutual Consent Divorce" mentioned in the sub-section (2) of Section 13 B is filed when the couple reappears to the court for the second time after a period of six months. If the judge is satisfied after a hearing from both the husband and wife, the court announces a mutual divorce decree.
If the couple fails to appear in the court after six months and not later than eighteen months from the date of first motion, the divorce petition becomes null and void. Either of the couple can withdraw his/her petition within the six months term.
A judgment for mutual divorce is passed out only if all the necessary agreements required for a mutual divorce in India are strictly maintained. The husband and the wife should come to terms of settlement regarding the following issues.
Friday, March 19, 2010
DIVORCE BY MUTUAL CONSENT
Where both the parties mutually agree that they want to divorce a petition may be presented on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Thereafter both the parties have to make a motion to the court not earlier than 6 months and not later than 18 months from the date of presentation of the petition and the court after hearing the parties and on being satisfied will pass a decree of divorce.
Thereafter both the parties have to make a motion to the court not earlier than 6 months and not later than 18 months from the date of presentation of the petition and the court after hearing the parties and on being satisfied will pass a decree of divorce.
ADDITIONAL GROUNDS FOR DIVORCE BY A WIFE
In addition to the grounds stated above a wife may also present a petition for the dissolution of her marriage on the following grounds.
Where the marriage was solemnized before the commencement of this Act, and the husband had married again before such commencement or that any other wife of the husband whom he had married before such commencement was alive at the time of the marriage. (In such a case its necessary that the other wife is alive at the time of presentation of the petition).
That the husband has after the marriage been guilty of rape, sodomy or bestiality.
That her marriage whether consummated or not was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.
Where the marriage was solemnized before the commencement of this Act, and the husband had married again before such commencement or that any other wife of the husband whom he had married before such commencement was alive at the time of the marriage. (In such a case its necessary that the other wife is alive at the time of presentation of the petition).
That the husband has after the marriage been guilty of rape, sodomy or bestiality.
That her marriage whether consummated or not was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.
Grounds for Divorce in India
In India divorce is granted mainly on 5 different grounds. (You can see the grounds for divorce for Muslims here (section number 2):
Adultery
Desertion
Cruelty
Impotency
Chronic Diseases
In detailed Overview of grounds of Divorce:
The secular mind-set of the Indian judicial system has initiated proclamation of various personal laws based on different religious faiths. Hindus, Christians and Muslims are governed under separate marriage acts and grounds for divorce in India.
Let us have a look at the various 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 – Incase 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.
(i) Hindu Marriage Act: Section 13 - Cruelty:
The Andhra Pradesh High Court in the case of Naval Kishore Somani -vs- Poonam Somani reported in AIR 1999 AP 1 has held that the Petitioner has a right to claim divorce on the ground that by making false, baseless, vexatious and malicious allegations in the written statement, cruelty is afflicted upon the Petitioner. However, divorce cannot be claimed where the Respondent has merely failed to prove those allegations. The Petitioner in order to prove that the Respondent has afflicted cruelty by making such allegations has to prove that the said allegations made by the Respondent are false, baseless, vexatious and malicious.
(ii) Indian Divorce Act, 1869 - Section 19:
The Kerala High Court by its Judgment in the case of V.C.Thomas -vs- A.N. Thomas alias Kunjumol - reported in AIR 1999 Kerala 1, has held that a marriage of an Indian Christian cannot be declared to be null and void on the ground of husband claiming lunacy of wife when there was no evidence to that effect nor any doctor was examined showing that the wife was suffering from mental illness before or at the time of marriage, particularly when the evidence of Court guardian indicated that wife was a normal person. In this case as the wife had not appeared before the Court nor raised any objection the matter was remanded back at the request of the husband to adduce further evidence so as to establish that the wife was suffering from mental illness at the time of the marriage.
(iii) Indian Divorce Act 1869 - Section 19:
The Kerala High Court by its Judgment in the case of George Joseph -vs- Alphonsa alias Lovely Mathew & Another - reported in AIR 1999 Kerala 25, has held that the husband was not entitled to a decree for divorce on the ground of lunacy of wife on account of failure of husband to establish that the wife was insane at the time of marriage. It was also held that divorce cannot be granted under the Indian Divorce Act on the ground that the wife had become incurably unsound in mind as it was not a ground contemplated by Section 19(3) of the Indian Divorce Act, 1869.
(iv) Indian Divorce Act, 1869 - Section 19:
The Kerala High Court in the case of Saly Joseph -vs- Baby Thomas - reported in AIR 1999 Kerala 66, the Kerala High Court held that a marriage was held to be liable to be declared null and void on the ground of fraud. In this case the wife had proved that her consent to the marriage with the husband was obtained by exercising fraud by concealing educational qualifications of the Husband. The wife had given evidence that if she would have been aware of the qualification of the husband that he had not passed Pre-Degree and A/C Mechanism Diploma and that he had worked only for some time in Bahrain as a Salesman, she would not have given her consent for the marriage as she wanted a man having a decent job in Gulf. From her evidence, it was clear that even if her husband had no job in Gulf she could secure a job for him if he was an A/C Mechanic as stated by him at the time of obtaining her consent for marriage. She had also stated that a proposal by an Engineer was turned down because she wanted a Gulf employee. It was held that the husband had concealed his qualification and misrepresented to the wife that he had a job at Bahrain and that he had to rejoin soon as he was on a short leave. The wife was very particular about the quality of a person which was concealed from her and thus her consent for the marriage was obtained by fraud. The Court therefore held that the marriage is liable to be declared as null and void.
Adultery
Desertion
Cruelty
Impotency
Chronic Diseases
In detailed Overview of grounds of Divorce:
The secular mind-set of the Indian judicial system has initiated proclamation of various personal laws based on different religious faiths. Hindus, Christians and Muslims are governed under separate marriage acts and grounds for divorce in India.
Let us have a look at the various 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 – Incase 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.
(i) Hindu Marriage Act: Section 13 - Cruelty:
The Andhra Pradesh High Court in the case of Naval Kishore Somani -vs- Poonam Somani reported in AIR 1999 AP 1 has held that the Petitioner has a right to claim divorce on the ground that by making false, baseless, vexatious and malicious allegations in the written statement, cruelty is afflicted upon the Petitioner. However, divorce cannot be claimed where the Respondent has merely failed to prove those allegations. The Petitioner in order to prove that the Respondent has afflicted cruelty by making such allegations has to prove that the said allegations made by the Respondent are false, baseless, vexatious and malicious.
(ii) Indian Divorce Act, 1869 - Section 19:
The Kerala High Court by its Judgment in the case of V.C.Thomas -vs- A.N. Thomas alias Kunjumol - reported in AIR 1999 Kerala 1, has held that a marriage of an Indian Christian cannot be declared to be null and void on the ground of husband claiming lunacy of wife when there was no evidence to that effect nor any doctor was examined showing that the wife was suffering from mental illness before or at the time of marriage, particularly when the evidence of Court guardian indicated that wife was a normal person. In this case as the wife had not appeared before the Court nor raised any objection the matter was remanded back at the request of the husband to adduce further evidence so as to establish that the wife was suffering from mental illness at the time of the marriage.
(iii) Indian Divorce Act 1869 - Section 19:
The Kerala High Court by its Judgment in the case of George Joseph -vs- Alphonsa alias Lovely Mathew & Another - reported in AIR 1999 Kerala 25, has held that the husband was not entitled to a decree for divorce on the ground of lunacy of wife on account of failure of husband to establish that the wife was insane at the time of marriage. It was also held that divorce cannot be granted under the Indian Divorce Act on the ground that the wife had become incurably unsound in mind as it was not a ground contemplated by Section 19(3) of the Indian Divorce Act, 1869.
(iv) Indian Divorce Act, 1869 - Section 19:
The Kerala High Court in the case of Saly Joseph -vs- Baby Thomas - reported in AIR 1999 Kerala 66, the Kerala High Court held that a marriage was held to be liable to be declared null and void on the ground of fraud. In this case the wife had proved that her consent to the marriage with the husband was obtained by exercising fraud by concealing educational qualifications of the Husband. The wife had given evidence that if she would have been aware of the qualification of the husband that he had not passed Pre-Degree and A/C Mechanism Diploma and that he had worked only for some time in Bahrain as a Salesman, she would not have given her consent for the marriage as she wanted a man having a decent job in Gulf. From her evidence, it was clear that even if her husband had no job in Gulf she could secure a job for him if he was an A/C Mechanic as stated by him at the time of obtaining her consent for marriage. She had also stated that a proposal by an Engineer was turned down because she wanted a Gulf employee. It was held that the husband had concealed his qualification and misrepresented to the wife that he had a job at Bahrain and that he had to rejoin soon as he was on a short leave. The wife was very particular about the quality of a person which was concealed from her and thus her consent for the marriage was obtained by fraud. The Court therefore held that the marriage is liable to be declared as null and void.
Divorce laws in INDIA
India has different divorce laws for different religions. Almost all the religions have their own divorce laws in India which are used among themselves. There are separate laws for inter-cast or inter-religion marriages. Divorce laws in India for Hindus are described in Hindu Marriage Act, 1955. Hindu Marriage Act is also used for Sikhs, Buddhists and Jains as they don't have their own separate marriage and divorce laws. Here is the list of various divorce laws in India for various religions:
Hindu (including Sikhs, Jains and Buddists) : Hindu Marriage Act, 1955
Muslims : Dissolution of Muslim Marriages Act, 1939
Christians : Indian Divorce Act, 1869
Parsis : The Parsi Marriage and Divorce Act, 1936
Inter-Cast of Inter-Religion : Special Marriage Act, 1954
Hindu (including Sikhs, Jains and Buddists) : Hindu Marriage Act, 1955
Muslims : Dissolution of Muslim Marriages Act, 1939
Christians : Indian Divorce Act, 1869
Parsis : The Parsi Marriage and Divorce Act, 1936
Inter-Cast of Inter-Religion : Special Marriage Act, 1954
Divorce in INDIA
The very counter word for marriage is divorce. Divorce is the legal separation of two spouses by bringing an end to the vows that they took during the sacred ceremony of marriage. The divorce procedure differs from one governmental jurisdiction to another. In India divorce is still a major social taboo and divorce seekers have to undergo several ordeals in order to get separated from each other. Unlike western countries like USA and Sweden, the divorce rate is significantly low in India. In earlier days, in spite of existence of radical disparity between spouses, either of the two was expected to compromise with the other so that their marital bonding survives. In most cases women were forced to adjust with the unbearable post marital conditions for the welfare of the family, the children and even for her as she was hardly open to any means of earning her own livelihood.
With the advancement of time, spread of education and campaigns of human rights activists, divorce has become a way to break free from the marital clutches for many women. Couples facing difficulties in equating there levels of compatibility are now filing for divorce in order to renew their life afresh. In fact, the rate of divorce is rapidly rising in the Indian metropolis.
Divorce in India is a long legal procedure, whose period of prosecution takes at least six months. The divorce procedure varies from the marriage acts of one personal law to another. All Hindus including Sikhs, Buddhists and Jains can seek divorce under Hindu Marriage Act. Whereas communities like Parsi, Christians, Muslims, have their own laws related to divorce. For example, Christians divorce laws are regulated by the Indian Divorce Act, 1869, and that of a Parsi by Parsi Marriage and Divorce Act, 1936. Inter community marriages are governed by Special Marriage Act, 1956.
While contesting for or mutually agreeing with the divorce, there are several divorce related affairs has to be taken care, like alimony, child support and grounds for divorce.
With the advancement of time, spread of education and campaigns of human rights activists, divorce has become a way to break free from the marital clutches for many women. Couples facing difficulties in equating there levels of compatibility are now filing for divorce in order to renew their life afresh. In fact, the rate of divorce is rapidly rising in the Indian metropolis.
Divorce in India is a long legal procedure, whose period of prosecution takes at least six months. The divorce procedure varies from the marriage acts of one personal law to another. All Hindus including Sikhs, Buddhists and Jains can seek divorce under Hindu Marriage Act. Whereas communities like Parsi, Christians, Muslims, have their own laws related to divorce. For example, Christians divorce laws are regulated by the Indian Divorce Act, 1869, and that of a Parsi by Parsi Marriage and Divorce Act, 1936. Inter community marriages are governed by Special Marriage Act, 1956.
While contesting for or mutually agreeing with the divorce, there are several divorce related affairs has to be taken care, like alimony, child support and grounds for divorce.
Hindu Marriage – An Overview
Marriage is a Sacred Bond and Pledge
A person’s real journey of self- growth from self-centeredness to other-centeredness begins with marriage. The seeds of ethics and morality that a child receives in his subconscious from the family and environment start sprouting and growing rapidly after marriage. The virtues of love and devotion, self-control and sacrifice, piety and forbearance, etc. have ample opportunities to develop fully in married life. The family is a school of achieving perfection in all spheres of life and the marriage marks an admission to this school. As the foundation of primary education is essential for the students in order to pursue higher studies; in the same way, the institution of marriage is of paramount importance in the proper nurturing of family life. In order to inculcate this objective, Vedas advise the bridegroom to proclaim:
Gribhnami te saubhagatvaya hastam mayapatya jardastirayathasah|
Bhagoaryyamma savita purandhiramahyam tvadurgaharpatya devah||
That is – “Oh dear! On this auspicious occasion of our life, I take your hand in mine in the presence of invoked deities. Oh blessed woman! You be with me as a fortunate partner for a very long time. I hand over the control of my family in your hands, discharge your duties joyously.”
There is hardly a social institution in the entire ascent of Human Race and the civilisation which has come under so much of criticism, has been a basis of humour, ridicule and sarcasm and yet withstood robustly the test of time as the “marriage”. It is one of those institutions which differentiates man from being called just “a two legged animal” and bears testimony of his capability of organised behaviour; it is one of those institutions that distinguish “society” from what could otherwise would be a simply termed as “a herd of human beings”. Ironically, the institution has existed through the millennia of human existence on what could be correctly termed as “unstable equilibrium” where a microscopic change would cause a catastrophic effect, like a huge rock meticulously balanced on the mountain peak. That is what makes the analysis of this institution a philosophers’ delight.
The Hindu marriage has espoused a great interest in the West not only because it is one of the oldest in the human history but the kind of mystic aura that surrounds it and the various religious rites and rituals that are involved in it. For some strange reasons the West has been under the impression that the Hindus are obsessed with fidelity and celibacy and propose a forced human behaviour though the reality has been completely contrary to the commonly perceived beliefs.
The Hindu marriage is a carefully crafted, a beautifully sculpted institution and, like many concepts in the Hindu tradition, it is soaked in the acute and careful understanding of human nature.
A person’s real journey of self- growth from self-centeredness to other-centeredness begins with marriage. The seeds of ethics and morality that a child receives in his subconscious from the family and environment start sprouting and growing rapidly after marriage. The virtues of love and devotion, self-control and sacrifice, piety and forbearance, etc. have ample opportunities to develop fully in married life. The family is a school of achieving perfection in all spheres of life and the marriage marks an admission to this school. As the foundation of primary education is essential for the students in order to pursue higher studies; in the same way, the institution of marriage is of paramount importance in the proper nurturing of family life. In order to inculcate this objective, Vedas advise the bridegroom to proclaim:
Gribhnami te saubhagatvaya hastam mayapatya jardastirayathasah|
Bhagoaryyamma savita purandhiramahyam tvadurgaharpatya devah||
That is – “Oh dear! On this auspicious occasion of our life, I take your hand in mine in the presence of invoked deities. Oh blessed woman! You be with me as a fortunate partner for a very long time. I hand over the control of my family in your hands, discharge your duties joyously.”
There is hardly a social institution in the entire ascent of Human Race and the civilisation which has come under so much of criticism, has been a basis of humour, ridicule and sarcasm and yet withstood robustly the test of time as the “marriage”. It is one of those institutions which differentiates man from being called just “a two legged animal” and bears testimony of his capability of organised behaviour; it is one of those institutions that distinguish “society” from what could otherwise would be a simply termed as “a herd of human beings”. Ironically, the institution has existed through the millennia of human existence on what could be correctly termed as “unstable equilibrium” where a microscopic change would cause a catastrophic effect, like a huge rock meticulously balanced on the mountain peak. That is what makes the analysis of this institution a philosophers’ delight.
The Hindu marriage has espoused a great interest in the West not only because it is one of the oldest in the human history but the kind of mystic aura that surrounds it and the various religious rites and rituals that are involved in it. For some strange reasons the West has been under the impression that the Hindus are obsessed with fidelity and celibacy and propose a forced human behaviour though the reality has been completely contrary to the commonly perceived beliefs.
The Hindu marriage is a carefully crafted, a beautifully sculpted institution and, like many concepts in the Hindu tradition, it is soaked in the acute and careful understanding of human nature.
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