Divorce is a serious, stressful, life-altering experience with many emotional and legal consequences. Divorce law provides the framework that governs the circumstances under which a marriage may be brought to an end and spouses are free to remarry. If you are thinking about divorce, you might be confused by all the different legal terms associated with divorce and how divorce actually works. Legalmax here will provides an excellent explanation for some very common legal terms associated with divorce, such as “grounds for divorce,” marital property, and alimony.

In India people files two types of divorce cases. One with mutual consent and other is without mutual consent. Based on this we can divide divorce proceeding in two types:-

  1. Contested Divorce
  2. Mutual Divorce

Contested divorce– Under the Hindu Marriage Act any one of the aggrieved spouses under section 13(1) can approach the court of law and seek the remedy of divorce. Section 13(2) provides the grounds on which only the wife can approach the court of law and seek the remedy of divorce.

Grounds of Divorce as per the Hindu Marriage Act

a. Adultery– Adultery means after the solemnization of the marriage, anyone whether the husband or wife had voluntary sexual intercourse with any person other than his or her spouse. In India, earlier, adultery was a criminal offence but in a recent Supreme Court judgment adultery has been decriminalized. But it still can be used as a ground to seek divorce from a spouse who has been committing adultery.

Anandram vs Smt. Laxmi Bai-In this appeal it was alleged by the appellant that wife who was the respondent never resided continuously with the appellant and she had physical relationship with some other persons prior to the marriage with the appellant, because of which a child was born within 7 months from the date of performance of marriage. It was alleged that respondent has physical relationship with number of other persons and on these grounds, decree for dissolution of marriage was prayed for. This appeal was disposed off by the Chhattisgarh High Court and decree of divorce is granted on the ground of adultery.

b. Cruelty– Cruelty may be both physical and mental. The physical cruelty means when one spouse beats or causes any bodily injury to the other spouse. Mental cruelty means that either the spouse is mentally tortured by the other spouse.

   Vinita Saxena vs Pankaj Pandit- The Supreme court granted a decree of divorce in favor of the wife. It was held by Supreme Court that “As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.

If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious (14 of 15) [CMA-1900/2004] and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.” The courts allowed the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.

c.  Desertion– Desertion means the permanent abandonment of one spouse by the other spouse without any reasonable justification and without his consent. If one of the parties deserts the other one without giving any reasonable reason, then, it is a good reason to obtain a divorce from the other.

In Geeta Jagdish Mangtant Vs. Jagdish Mangtant {AIR 2005 SC 3508}, the Supreme Court, after narrating the evidence available in the case, held that the conclusion is inevitable, that there was never any attempt on the part of the wife to go to husband’s house, therefore, from this fact alone animus deserendi on the part of the wife is clearly established. She has chosen to adopt a course of conduct which proves desertion on her part and that it was without a reasonable cause. Such a course of conduct over a long period indicates total abandonment of marriage. It also amounts to willful neglect of the husband by the wife.

d. Conversion -Converting to another religion by a spouse is another reason to claim divorce from the other.

In Sarla Mudgal, Kalyani and Ors. V. Union Of India and Ors. The Supreme Court considered the question whether a Hindu husband by embracing Islam can contract a second marriage during the subsistence of the first marriage and whether the husband would be guilty of the offence under Section 494 of the Indian Penal Code. It was held thus:

It is, thus, obvious from the catena of case law that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so. Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.

e. InsanityIf the spouse is unable to perform the normal duties that he or she is required to perform due to some mental illness or disorder then, in that case, divorce can be sought. However, if the mental illness does not hamper the capabilities of the person from performing his or her duties then the divorce cannot be claimed.

In Pankaj Mahajan V.Dimple, the husband sought divorce on the ground that the wife was suffering from incurable form of Schizophrenia. The Trial Court granted divorce, but the High Court reversed the same. When the husband appealed to the Supreme Court, the Supreme Court predominantly went by the evidence relating to cruelty and granted dissolution of marriage.

f. Leprosy– If the spouse has been suffering from some virulent and incurable form of leprosy, then, the aggrieved can seek divorce. Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. This disease is transmitted from one person to another. Thus it is considered as the valid ground for divorce.

In Swarajya Lakshmi Vs. G.S Padma Rao- The Supreme Court granted a decree of divorce on ground of leprosy. In this case, the husband filed the case for granting the divorce on the ground of leprosy. He claimed that his wife is suffering from incurable leprosy with the expert’s reports.

g. Venereal DiseaseUnder this concept, if the disease is in communicable form and it can be transmitted to the other spouse, then this can be considered as the valid ground for divorce.

h. Renunciation– It means when one of the spouses decide to renunciate the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce. In this concept the party who renunciates the world is considered as civilly dead.

Illustration A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a right to approach the court and seek the remedy of divorce.

i.Presumption of Death– In this case, the person is presumed to have died, if the family or the friends of that person does not hear any news about the person alive or dead for seven years. It is considered as the valid ground for divorce, but the burden of proof is on the person who demands the divorce.

Illustration– X was missing from the last seven years and his wife Y does not get any news about him of being alive or dead. Here Y can approach the court and ask for the divorce.

How to File a Contested Divorce

  1. The aggrieved party will have to hire an expert divorce lawyer first, so that he/she can provide them with all the details.
  2. A petition will be filed on behalf of the husband or wife in the court by the lawyer.
  3. Court issues summons and seek reply from the other party. A copy of the petition will be then sent to the spouse.
  4. The spouse could either agree to divorce or contest against it.
  5. Examination and cross-examination of witnesses and evidence.
  6. Final arguments by the lawyers of both the parties.
  7. The completion of the procedure will depend on the circumstances of the case.

In case of a contested divorce, the period is longer, ranging from three to five years because of complications and possibility that either party can challenge the decision in the High Court and Supreme Court.

Divorce with Mutual Consent

As per section 13B when both the parties i.e. husband and wife mutually consents to end their marriage, then, in that case, the married couple can seek a divorce from the courts. However, the court will not automatically dissolve the marriage. It is necessary to show that the couple has been living separately for over a year or two.

Steps involved in Mutual Consent Divorce

  1. First Motion involves joint filing of divorce petition.
  2. Husband & wife appear before court to record statements after filing of first motion petition.
  3. Court examines petition, documents, tries reconciliation, records statements.
  4. Court passes order on First Motion.
  5. Cooling off period of six months given to couple by court to rethink decision. However this cooling off period can be waived by court.
  6. Filing of Second Motion is done within 18 months of First Motion.
  7. Decree of divorce passed by the court.

The cooling off period of 6 months in mutual consent can waive by court. In Amardeep Singh Vs. Harveen Kaur

This is a landmark judgment case in which the Supreme Court held that the six months period, i.e., the cooling-off period is not mandatory under the section 13B of HMA. The Court held that the provision of the cooling-off period is a directory provision and can be waived off under certain circumstances. In this case, the parties were living separately for 8 years and with mutual consent decided to apply for divorce. The parties pleaded for the waiving off the provision of the cooling-off period given under section 13B (2) of the Act since they had been living separately for the past 8 years and there was no chance of reconciliation. The Court also held that the courts have the liberty to exercise their discretion of waiving off this provision depending on the facts of the case.

The Court stated that the courts while deciding the matter under this aspect can consider the following points before giving judgment:

  • That the period of six months mentioned in section 13B (2) in addition to the period mentioned in section 13B (1) has been over before the first motion of the petition.
  • That there is no chance of reconciliation between the parties. 
  • That the parties based on their mutual understanding have settled the issues like alimony, child custody, or any other issue.
  • That the application for waiver of the cooling-off period is submitted after the first week of the first motion specifying the reasons for the same.
  • That the cooling-off period would only increase their agony.
  • That if the above conditions are satisfied the court can choose to waive the period 
  • That the period mentioned in section 13B (2) is not mandatory but directory and the courts have full discretion to decide the matter on the basis of the facts and circumstances of the case. Also, such proceedings can be carried out through video conferencing.

Documents required in filing Divorce Petition

  • Address proof of husband.
  • Address proof of wife.
  • Marriage certificate.
  • Four passport size photographs of both husband and wife.
  • Evidence should be there which proves that both the husband and wife have been living separately.
  • Evidence proving that the attempts were made to reconcile but were not successful.
  • Income tax statements of the last two-three years.
  • Details of the profession and present remuneration of the petitioner.
  • Information regarding the family background of both the parties.
  • Details of the property owned by the petitioner.

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