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Friday, 11 November 2011

Divorce under Hindu Law

By Sumit Nagpal

Divorce is a subject which affects the lives of many of us. In metropolitan cities, the spouses can think of divorce but in rural India, Divorce is considered to be a taboo. In many a cases, people do not even get to know what is law on divorce. So here is a post on Law on Divorce for a layman.

Note : If you are a lawyer or a legal expert who is reading this article, feel free to comment if there are additional inputs which should be put to make this article better. Also let us know if there is any mistake in the article.


Divorce

According to the general definition, divorce refers to a process of legally dissolving a marriage. The concept of divorce did not exist under Hindu law as the marriage is considered to be a sacred relationship. However, the concept of Divorce was introduced when a law to this effect was codified and presently section 13 of the Hindu Marriage Act provides for dissolution of marriage.



When can I get divorce?

Grounds which are available to both husband and wife

You can file a petition for decree of divorce in the following cases; if your spouse

  • has, with his/her own will, had intercourse with any person other than you
  • has treated you with cruelty 
  • has deserted you and more than two years have passed since then
  • has converted to any other religion
  • is suffering from a mental disorder which can not be cured
  • has been suffering from incurable form of leprosy
  • has been suffering from venereal disease of communicable nature
  • has not be heard of being alive for a period of seven years of more


A petition for dissolution of marriage can also be filed if the spouse has failed to live together even after one year after the the court had directed for restitution of conjugal rights. Restitution of conjugal rights mean that both husband and wife start living together again just like every couple lives.

And in cases of judicial separation, if both the husband and the wife have failed to live together even after one year after the the court had ordered judicial separation.  

Grounds available only to wife


A wife may seek divorce from her husband on the following additional grounds

  • if the husband has been found guilty of rape, sodomy etc. 
  • if a court has passed an order for maintenance under Criminal Procedure Code or under Hindu Adoption and Maintenance Act. The wife becomes eligible for filing a divorce petition if after the order of maintenance, she has not lived with her husband for a period of one year.

What is the best way to get divorce?

The best way to get a divorce is by mutual consent. If you think that it is not possible for you to live with your spouse, the best way is to pursue him/her to go for a divorce by mutual consent. This not only saves the time and litigation cost, it also helps in reducing the emotional trauma. In such a case, one should opt for mediation and settle the terms and conditions on which both the parties will dissolve marriage.

How to get divorce by mutual consent ?


According to 13B of the Hindu Marriage Act, both the parties can approach the court for divorce by mutual consent if they are living separately for a period of one year or more and they have mutually agreed to dissolve the marriage.

When you present the petition for dissolution of marriage, you will have to wait for six months and after that second motion for dissolution of the marriage shall be made. The court shall satisfy itself and pass an order for dissolution of the marriage. You can also withdraw the petition for divorce if during the period, it appears to you that you both can live with each other and differences have been resolved.

Is it necessary to wait for one year before filing a petition for divorce?

Generally a petition for divorce can only be filed after one year of the marriage but in exceptional circumstances, the petition can also be filed even before one year has passed since the marriage took place. But in this case, you will have to prove to the court that what are those exceptional circumstances. Generally, the exceptional circumstances refer to a situation when if divorce is not granted, it will cause exceptional hardship to the parties concerned. In such cases, the court shall analyse the circumstances and pass an order accordingly.

When can I marry again after the court dissolved my marriage?

If the court has dissolved your marriage then you will have to wait for a stipulated time under with the other party can file an appeal. If the other party files an appeal then you will have to wait till the appeal is dismissed. In cases of divorce by mutual consent, filing of appeal is highly unlikely but in other cases, appeal is generally filed in all probability.

What to do if the other spouse refuses to agree for divorce?


If your spouse refuses to leave you, better is to see if there can be a possibility to live together. It is always better to give a second chance to your marriage because the other partner is still wanting to live with you. But if you are convinced that it is NOT at all possible for you to live with your partner, you have to check if your case falls in any of the grounds mentioned above. For eg. if a husband beats his wife and refuses to agree for divorce, the wife can file a petition for divorce on the ground of cruelty. Similarly, the husband is having an illicit relationship with another women, the wife can file a petition for divorce.


What happens to our children?

In case, you have children, best way is to decide mutually that who will take care of the kid. In case, there is no agreement on the issue, a petition for custody can be filed in the court and the court shall decide in the best interest of the child about who should have the custody of the children. Generally, in case of infants and very young children, the custody is given to the mother. In cases, where the child is old enough, the court considers various factors and then decides the custody of a child.

5 comments:

  1. This Blog is really nice
    Good Informative
    I m a student but I really appreciate your efforts.
    Thank You. :)

    ReplyDelete
  2. Very nice article. I would like to elaborate on the point the law actually protects an individual from getting divorced against his/her wishes. If a spouse refuses to sign the divorce papers, the other spouse cannot force him/her to. The court will never grant divorce to anybody against their wishes. The other spouse has to provide solid evidence of cruelty, harassment, adultery, desertion etc. If the evidence is not strong enough, court will dismiss the case stating that there are no legal grounds to seek divorce. So divorce cannot be given and the marriage stands valid.

    Also, another important point is that once the husband signs the divorce papers, the wife gets rights to half of his earnings, property, ancestral wealth and even pension. Child maintenance can also be claimed separately. The court does not consider reason for divorce while deciding the alimony/maintenance amount. It is only concerned with the financial status of husband and wife. Even if the divorce is granted due to wrongdoings of the wife, she will still get alimony/maintenance. In such cases wife enjoys advantages of her own wrongdoings.

    Further, the wife can keep on claiming enhancement of alimony and maintenance amount regularly citing inflation and the court will keep granting the same based on merit. So, if husband gets salary increment, wife will also get an increment. But this free funding will stop if the wife gets married again or if at some point of time, her income exceeds that of her husband.

    ReplyDelete
  3. In a gist...

    An intelligent husband will never sign on divorce papers unless his wife's income/wealth/property is more than his.

    An intelligent wife will never remarry unless her new husband's income/wealth/property is more than that of her ex-husband.

    ReplyDelete
  4. It is extremely nice to see the greatest details presented in an easy and understanding manner.Michael White

    ReplyDelete
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