Law of Divorce and Mutual Divorce in India

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Law of Divorce and Mutual Divorce in India

What is divorce (Law of Divorce and Mutual Divorce in India)

Law of Divorce and Mutual Divorce in India. Divorce means the dissolution of marriage or termination of marriage by due process of law. In India, Special Marriage Act has Passed in 1954 and law permitted inter-religious marriage and divorce irrespective of their religion and faith. And in 1955, the Hindu Marriage Act legally permitted divorce to Hindus and other communities who chose to marry under this act. And Indian Divorce Act is the law relating to the divorce of a person professing the Christian religion.

Marriage and Divorce laws in India

  1. Hindu Marriage Act, 1955 – This act applicable to Hindu, Buddhist, Jain and Sikh religion.
  2. Special Marriage Act, 1954 – Act applicable to any person
  3. The Divorce Act, 1869 – Applicable to the person who professes the Christian religion.

What is the procedure of Divorce in India (Law of Divorce and Mutual Divorce in India)

    1. Procedure to take divorce in India starts from the filing of the divorce petition. We need to attach the proof of original marriage card, marriage certificate, address and ID proof of both the parties and other relevant documents with the petition. We have to mention all the grounds in the petition. Grounds like cruelty, desertion, adultery, etc.
    2. After filing of the Divorce petition court issue summons to another party. However, after receiving summons by the other party.  The other party shall appear before the Court along with his lawyer. And another party shall file his written statement in the court.
    3. Thereafter, either party can file the interim application. Interim application means an application for interim maintenance, access or custody of child application. Thereafter, the petitioner shall file their affidavit of evidence. And thereafter other parties shall cross-examine the petitioner.
    4. Thereafter other party gets a chance to file an affidavit of evidence. And petitioner gets a chance to cross-examine the other party. After the evidence stage both the party shall get a chance to put up their case by arguments. However, after arguments of both the parties the court shall pronounce judgment of Divorce. The court shall pronounce judgment after hearing of both the parties and the merits of the case. And this is how to get a divorce in India. (Law of Divorce and Mutual Divorce in India)

Law of Divorce and Mutual Divorce in India

Types of Divorce Petitions

a) Contested Divorce

b) Mutual Divorce.

An important point is that no divorce petition can be filed during the one year of marriage.

Procedure for Mutual Divorce (Law of Divorce and Mutual Divorce in India)

But for mutual divorce there is separate procedure to be followed. In Mutual divorce petition, both the parties are ready for divorce. Hence joint petition shall file along with the documents original marriage card, marriage certificate, address and ID proof of both the parties.

After filing of the joint petition, the court himself inquires and confirms with the parties that they want to live separately and both of them want a divorce. Thereafter court gives the date after six months which is mandatory as per the law. However six months period is considered as cooling off period.

However, there is one year of separation period is necessary for filing a mutual divorce Petition under Hindu Marriage Act and Special Marriage Act. And, Two year separation period is necessary for mutual divorce petition under Divorce Act, 1869. (Law of Divorce and Mutual Divorce in India)

Grounds of Divorce in contested divorce petition under Hindu Marriage Act, 1955 (Law of Divorce and Mutual Divorce in India)

Adultery

Adultery means a sexual relationship with any person other than the spouse. An extramarital relationship does not come under adultery, it can be mental cruelty. Nowadays adultery has not considered a criminal offence in India. But Adultery is good ground for divorce. In other words, there must be voluntary and consensual sexual intercourse between a married person and another of the opposite sex. Adultery can prove by circumstantial evidence.

Cruelty

Cruelty means both physical or mental cruelty by the husband or his family members. However, the physical custody is easy to determine. But mental cruelty which inflict the pain to such degree and duration that adversely affect the health, body reaction. Mental cruelty is a state of mind.

Cruelty includes Demand of dowry, Impotency, Refusal to have marital intercourse, Drunkeness, Incompatibility of temperament, False accusation of adultery.

Conversion

Conversion to another religion means either of two convert himself/herself into another religion. When one party has ceased to be Hindu and convert to any other religion.

Mental disorder

Mental disorder is one of the grounds of divorce. When the respondent has suffered from incurable of unsound mind. And when the respondent has suffered intermittently from mental disorder of such a kind and to such an extent that the petitioner can not be expected to live with the respondent.

Venereal disease

Venereal disease means if one of the spouses suffers from an easily communicable disease. And the petitioner can take this ground for divorce when the respondent has suffered from a communicable form of Venereal disease. That the burden is on the Petitioner to prove that the respondent is suffering from the disease.

Renounce the world

Renounce the world by entering any religious order is one of the grounds of divorce under Hindu Law. Either of the spouse may seek divorce when the other party has renounced the world.

Not heard of being alive for seven years

When a person has not heard alive for at least seven years, in that case he may presume as dead. That the burden is on the petitioner to prove that respondent has not heard for seven years.

Desertion

Desertion means if one of the spouses voluntarily abandons his/her partner for two years.  Rejection of the either of the party from all the obligations of marriage. Therefore, the permanent abandonment of one spouse by the spouse without any reasonable cause and the consent of others. It is a total repudiation of marital obligation.

Following aspect are necessary to prove the desertion

The factum of separation, intention to desert, desertion without any reasonable cause, without consent of other parties, the statutory period of two years.

Where to file a Divorce Petition (Law of Divorce and Mutual Divorce in India)

Every petition shall be file to the district court

  1. Where marriage was taken place
  2. At the place where another party resides at the time of filing of the petition
  3. Parties to the marriage last resided together.

Wife may also file a petition for divorce on the following grounds:

  1. In the case of any marriage takes place before the commencement of the Hindu marriage act, and husband had married again before such commencement of act or wife had married before the commencement of the act, was alive at the time of solemnization of marriage of the petitioner.
  2. If the husband has guilty of rape, sodomy. So, after going through the above article you will get a rough idea about how to get a divorce in India. (Law of Divorce and Mutual Divorce in India)

Grounds of Divorce Under Special Marriage Act,1954

  1. Adultery
  2. Desertion. Period of desertion shall not less than two years immediately preceding the presentation of the petition.
  3. Imprisonment of seven years or more for an offence under Indian Penal Code
  4. Cruelty
  5. Mental Disorder
  6. Psychopathic disorder
  7. Venereal disease
  8. Leprosy
  9. Not heard alive for seven years
  10. Guilty of rape, sodomy and bestiality.

The ground of divorce under Divorce Act, 1869

  1. Adultery
  2. Ceased to be Christianity
  3. Unsoundness of mind
  4. Leprosy
  5. Venereal disease
  6. Not heard alive for seven years
  7.  Wilfully refusal to consummate the marriage
  8. Failed to comply with the decree of conjugal of rights for two years or upwards
  9. Deserted for two years
  10. Cruelty

Besides, Wife may present a petition for dissolution of marriage on the ground that the husband found guilty of rape, sodomy or bestiality.

Conclusion

Therefore, we have discussed some important aspects of  The Hindu Marriage Act, Special Marriage Act, and the Divorce Act. And these three important laws in which marriage and divorce taking place in India. The grounds of divorce are almost the same in all the Acts except one or two grounds.