Introduction:
In those days marriage was considered as a sacred thing. As it was considered a sacred thing, the concept of divorce was not known and preferred. The concept of divorce means putting an end to the marriage i.e. the wife and husband are separated. According to the Arthashastra, marriage can end if dissolved by mutual consent and should be an unapproved marriage. According to Manu, divorce occurs only in case of death of the spouse. The provision related to divorce was introduced by the Hindu Marriage Act, 1955. The Hindu Marriage Act, 1955 regulates the divorce procedure of Hindu, Buddhist, Sikh and Jain. Divorce for Muslim is governed by the Dissolution of Muslim Marriage Act, 1939 and other religions by their own religious act.
Divorce:
The term divorce is not defined in any act or statute. It means putting an end to the marital obligation. There are various grounds in which divorce is filed. Either of the parties could initiate divorce petition or both the parties could initiate divorce proceedings together as a joint petition which is known as mutual divorce. The Hindu Marriage Act, lays down the procedure for divorce and also the grounds in which the divorce petition is filed. The act also lays down the procedure to file divorce and also to claim maintenance.
Ways of Divorce:
There are two different ways in which Divorce could be filed. Firstly, mutual consent secondly, without mutual consent.
As the phrase states Divorce with mutual consent, both husband and wife come together and files for divorce. In case of divorce without mutual consent, either of the party files for the divorce. There are certain grounds for filing for divorce.
Divorce without Mutual Consent:
Section dealing with Divorce:
- Section 10 states that either the party could initiate proceedings before or after the commencement of the act could present a petition before the court mentioning the ground on which the divorce has been filed.
- Under section 5, the conditions of valid marriage are laid down. If any of those conditions is not satisfied then could file for divorce petition by either of the parties. The section 5 states that: consent was given because of unsoundness of mind or if the party was suffering from mental illness or insanity or they are minors i.e. the bridegroom should complete 21 and bride should complete 18 at the time of marriage or the parties are inside the degree of precluded relationship or they are sapindas of one another. In these cases it will be considered as invalid marriage and this could act as a ground of mutual divorce.
- Section 13 lays down the grounds of divorce they are adultery, cruelty, desertion, conversion, insanity, leprosy, venereal disease, renunciation and presumption of death. There is an option for mutual divorce of the married couple. In the case of mutual consent both the parties don’t want to continue their married life.
Restriction or exemption cases:
Under section 14 of the Hindu Marriage Act, it is stated that no petition for divorce could be filed within one year of the time of their marriage.
Grounds for Divorce:
- Adultery: This has been defined in section 13(1) (i), it states that after the marriage if the husband lives with another person or wife lives with another person and has voluntary sexual intercourse then the person is said to commit adultery.
- Cruelty: Cruelty means torturing or causing hurt to another. Section 498 A of Indian Penal Code states what cruelty is. If any act causes injury to a person’s life or limb or wellbeing of a woman or harassment of women where such harassment pressurizes her to get the property or security.
- Desertion: Desertion means abandoning a person. In this case the spouse abandons the other. If the person has been abandoned for 2 years then it will become a ground for divorce.
- Conversion: If the spouse at the time of marriage is Hindu and converts to another religion, it will be considered as grounds for divorce.
- Insanity: The word “Insanity” means abnormal behavior or who is not in the correct state of mind. If a person is not able to understand the surrounding or the situation then he or she is considered insanity. This insanity acts as a ground to file divorce.
- Leprosy: Leprosy is a Chronic disease, this affects skin, nerves, respiratory tract and the eyes. If the spouse is suffering from this kind of infectious disease then this could act as a ground for divorce.
- Venereal Disease: This is also known as sexually transmitted disease. If the spouse is suffering from incurable disease then a petition for divorce could be filed by the person.
- Renunciation: If the person doesn’t want to take responsibility in the marriage then it could be considered as a basic ground for divorce.
- Presumption of Death: Under section 108 of the Evidence Act, if a person is not seen or heard alive for a period of 7 years then the person will be considered as dead and the spouse could apply for divorce.
Procedure for Divorce:
Ø Jurisdiction: A petition has to be filed before the District Court. The petition has to be filed in
- The place where the marriage was solemnized.
- The place where the respondent resided
- The place where the couple lastly resided
- The petition will be scrutinized by the Court on the first date of hearing.
Ø Once the court thinks that there is reasonable cause then the court will issue notice to the other party. A copy of the petition will be sent to the opposite party and the opposite party should send a reply for the petition sent.
Ø The court in certain cases refers the case to mediation. If this mediation doesn’t lead to amicable settlement then the court continues with the court proceedings.
Ø Then the court frames issues and both the parties should submit evidence, get cross examined and they could also produce evidence. They could also produce witnesses on their side.
Ø Final Arguments of the parties take place, in which both the party’s advocates run through all the evidence submitted and lay their final argument.
Ø Decision of the court: if the Judge feels that there is grounds for divorce is valid then the judge would give its final judgment. If the party is not satisfied then the party could file an appeal against the order within a period of 3 months.
Mutual Consent Divorce:
Mutual divorce means both parties come together to get divorce. It is a joint petition for dissolution of marriage.
Procedure:
Ø Filing of petition: A petition will be filed by both the parties jointly. They could file before the competent court and file for divorce. The petition will be filed under the Hindu Marriage Act, section 13B. They should satisfy certain conditions; firstly they should be living separately for at least one year. Secondly they are not able to live together; lastly they should have mutually agreed that marriage should be resolved.
Ø After filing the petition the parties shall appear before the court
Ø If the court is satisfied, the petitioner statements are recorded then the first motion is passed by the court, said to be filed after a waiting period of 6 months will be given to the parties before the second motion.
Ø Second motion and final hearing: After the second motion, if the parties have settled their disparities, then the court will waive the same.
Ø Decree of divorce: if both the parties are likely to give assent and the grounds are proved then the court issues decree.
Maintenance provided by the Court:
Ø If the grounds are proved before the court, the court could give the respondent relief under this act.
Ø Maintenance is provided in two modes: temporary and permanent maintenance. This temporary maintenance is also called as pendente lite, it is awarded by the court during continuation of proceedings of the divorce. This temporary maintenance is to meet the immediate expense of the spouse under the section 24 of the Hindu Marriage Act, 1955.
Ø Permanent maintenance as the word states the spouse gets permanent maintenance under section 25 of the Hindu Marriage Act, 1955.
Ø The court could modify the maintenance if the spouse has re- married or she has not remained chaste or if he has sexual intercourse with another woman.
Under Hindu Marriage Act:
Maintenance to his wife:
Ø In section 24 of the act, it was held that if the court considers fit and is satisfied that either wife or husband doesn’t have independent income then it can order the respondent to pay the maintenance to the petitioner, the claimant could be husband as well.
Ø In section 25 the person could get permanent maintenance on application made. This section 24 and 25 applies to both wife and husband to provide maintenance. In the case of Rani Sethi V. Sunil Sethi, the court ordered the wife to pay maintenance to her husband of Rs. 10,000 as litigation expense. Later the wife approached the High Court and it was held that the purpose of the section is to support the person who is incapable of earning his or her independent income. The appeal was dismissed.
Maintenance to Children:
Ø The section 26 of the act deals with the custody, maintenance and education of minor children. The obligation lies on both husband and wife.
Ø In Sukhjinder Singh Saini V. Harvinder Kaur, it was held that both the wife and husband have a legal obligation to maintain their child, they are obligated to provide the best education. If the spouse who takes care of the child cannot get maintenance if the spouse has good maintenance.
Maintenance under Section 125 Cr.P.C:
The Magistrate of First Class has the power to order the person to provide monthly allowance to parents, wife, legitimate or illegitimate minor child who is not able to maintain themselves, major child who is not married or not able to maintain themselves due to disability, if married daughter is not able to be maintained by her husband.
Conclusion:
Marriage is considered as a sacred thing around the world by various religions. In Muslim law, marriage is considered as a contract or agreement, like other agreements that could be ended at any time. There are various legislations regarding marriage such as Hindu Marriage Act, Special Marriage Act, Muslim Marriage Act, and Dissolution of marriage Act. Divorce is a serious issue, nowadays there are various divorce petitions pending before the court. This concept of divorce divides the family as well as the child from the other spouse. The children have to grow with one parent and it could cause trauma in their childhood. These divorce cases are increasing because women like to be independent rather than depending on other people. Many marry because of family pressure. Later the parents don’t know what it would cause to their daughter or son in future. In certain cases, these marriages will lead to divorce. Majority of cases are based on cruelty, there is a separate act in India i.e. Protection of Women against Domestic Violence. This act protects the women from their husband and their family members who cause physical and mental harassment. Under this act, the aggrieved party could claim relief. The person could ask for security, residence, monetary relief, custody orders and compensation orders.
DID YOU KNOW FACT:
- Is the husband entitled to get maintenance?
Yes, Husband is also entitled to get maintenance. The Section 26 and 27 states that the court could order either of the spouses to pay maintenance. This section is provided for fair and equitable justice.
- Where divorce could be filed?
Divorce should be filed before the family court and it should be either:
- The place where the marriage was solemnized.
- The place where the respondent resided
- The place where the couple lastly resided
- The petition will be scrutinized by the Court on the first date of hearing.
- On what grounds divorce is granted?
Section 13 lays down the grounds of divorce they are adultery, cruelty, desertion, conversion, insanity, leprosy, venereal disease, renunciation and presumption of death. There is an option for mutual divorce of the married couple.
- Can both the parties in mutual divorce hire the same lawyer?
In mutual divorce the parties could hire the same lawyer as the divorce petition for mutual divorce is filed jointly.
- If the conditions of marriages are not met, can it act as a ground for filing divorce?
Under section 5, the conditions of valid marriage are laid down. If any of those conditions is not satisfied then could file for divorce petition by either of the parties. The section 5 states that: consent was given because of unsoundness of mind or if the party was suffering from mental illness or insanity or they are minors i.e. the bridegroom should complete 21 and bride should complete 18 at the time of marriage or the parties are inside the degree of precluded relationship or they are sapindas of one another.
- Can the maintenance be claimed under other acts?
The maintenance could be claimed under Hindu Marriage Act, 1955 as well as on Criminal Procedure Code under section 125.
- When can a divorce petition be withdrawn?
Divorce petition could be withdrawn at any stage by the petitioner.
- On what grounds maintenance is refused?
There are certain grounds in which the maintenance of a spouse could be refused, namely: if the spouse has re- married or she has not remained chaste or if he has sexual intercourse with another woman.
- How Hindu Marriage act different from Criminal Procedure code in claiming maintenance?
In Hindu Marriage act only the spouse has the right to claim maintenance whereas in Criminal Procedure code the spouse, children and parents are eligible for claiming maintenance.
- Can a wife claim maintenance under both Hindu Marriage Act as well as Criminal Procedure Code?
Yes, the spouse could claim maintenance under both acts. If maintenance is fixed in Hindu Marriage Act, then the court will keep in mind the maintenance amount and grant maintenance to the party.