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Divorce under Hindu Marriage Act,1955 (HMA.1955)

INTRODUCTION:

Divorce is the dissolution of a marriage by a legal process. Once a decree finalizing the divorce is passed by a court, the matrimonial alliance between the spouses comes to an end. Divorce also includes a division of property, assets, custody of children among the husband and wife. The process of divorce varies from religion to religion. 

Under the Hindu Marriage Act,1955, divorce can be of two kinds – 

1) Contested Divorce under S.13; and

2) Divorce by Mutual Consent under S.13B

 

CONTESTED DIVORCE (S.13):

A contested divorce is where either of the spouse seeks divorce on any of the ground/s mentioned in the HMA, 1955 and the same is contested by the other spouse. 

 

Grounds for filing a contested divorce-

As per S.13(1), the following are the grounds based on which either of the spouse can file for divorce-

  1. Adultery by the Respondent
  2. Being treated with cruelty by the Respondent
  3. Desertion by the Respondent for a continuous period of minimum 2 years without a reasonable cause
  4. The Respondent ceased to be a Hindu
  5. The Respondent has become of incurable unsound mind
  6. The Respondent has been suffering either continuously or intermittently from a kind of mental disorder where the Petitioner cannot be reasonably expected to live with the Respondent
  7. The Respondent suffers from communicable venereal disease
  8. The Respondent has renounced the world
  9. The Respondent has not been heard of being alive for a period of 7 years by people who are likely to hear about him being alive2

As per S.13(1A), the following are the grounds based on which either of the spouse can file for divorce-

  1. No cohabitation for minimum 1 years after a decree of Judicial Separation was passed. 
  2. No restitution of conjugal rights for minimum 1 year after a decree for such restitution has been passed. 

As per S.13(2), the following are the grounds based on which only the wife can file for divorce-

  1. The husband is guilty of rape, sodomy or bestiality
  2. A decree or under has been passed against the husband to award maintenance to wife under S.18 of the Hindu Maintenance and Adoption Act,1956 or under S.125 of the Code of Criminal Procedure,1973 and for a period of minimum 1 years after the passing of such order or decree, the husband and wife have not been living together
  3. The marriage was solemnized before the wife attained the age of 15 years and after attaining the age of 15 years and before 18 years, she has filed for repudiation of marriage

 

Procedure for filing a contested divorce-

1) Where to file the petition?

As per S.19 of HMA,1955, every divorce petition shall be presented to the District Court within whose ordinary original civil jurisdiction – the marriage was solemnized; or the respondent at the time of filing the petition resides; or the spouses last resided together; or where the wife is residing at the time of filing the petition, when she is the petitioner; or where the petitioner is residing at the time of filing the petition when the respondent is either outside the limits to where this Act applies or is not heard of being alive for 7 years by persons who would have known heard the same.

 

2) How to file the petition?

a) The Petitioner has to draft a petition stating the relevant facts and the ground/s for seeking the divorce in the family court with the jurisdiction under S.19, HMA,1955.

b) After being satisfied with the petition, the court will send a summon to the Respondent to appear before the court with his/her counsel on the given day.

c) The court may suggest the parties to go for mediation to reconcile.

d) In case the mediation fails, the proceedings will be initiated.

e) Here, the parties will record their statements, submit evidence, cross-examine, and present their witnesses.

f) Based on the proceedings, the court will finalize or reject the divorce.

g) The aggrieved party can file an appeal within 3 months.

 

DIVORCE BY MUTUAL CONSENT (S.13B):

In a divorce by mutual consent, both the spouses have mutually agreed to file for a divorce petition and this makes the entire process relatively easier as compared to contested divorce.

 

Procedure for filing a divorce by mutual consent-

  1. Both the spouses have to file a petition for divorce by mutual consent through their   respective counsels.
  2. An essential condition here is that the spouses must be living separately for a minimum period of one year before filing such application. The important point to note here is that such living separately does not have to necessarily mean living in different houses. The husband and wife could be living under the same roof but may not continue to live as husband and wife.
  3. After the filing of the first petition, a cooling off period of minimum 6 months is given by the court to try and reconcile the marriage. The maximum period in this regard is 18 months. 
  4. If there is no reconciliation and the 1st petition has not been contested by either of the parties within this period of 6-18 months, the court shall begin with the proceedings, hear both the parties, cross-examine and accordingly pass a decree finalizing the divorce.
  5. However, in case of irretrievable breakdown of marriage, it can be treated as an exceptional condition and the minimum waiting period of 6 months between filing of the 2 petitions can be eliminated and divorce may be granted on the first petition itself.6

 

Irretrievable Breakdown of Marriage-

In its 71st Report, the Law Commission proposed for adding “irretrievable breakdown of marriage” as a separate ground for obtaining divorce under the HMA,1955, but due to persistent opposition by few women organisations the Parliamentary Bill introducing the same lapsed.7 Briefly, irretrievable breakdown of marriage is a circumstance wherein the chances for reconciliation of the marriage are miniscule and the continuance of such a marriage only poses agony for both the parties.

In the case Naveen Kohli V Neelu Kohli8, the parties got married in the year 1975. After a few years, there emerged differences between the parties and they both levelled various allegations ranging from cruelty, adultery and a number of civil and criminal proceedings against each other. The parties were remaining separately for 10 years. There appeared no grounds or possibility of the marriage being able to reconcile. The Supreme Court held that where it can be evidently held that the marriage is beyond repair and also there is continuous long period of separation, the parties should no longer suffer. When the marriage becomes a fiction and breaks down irretrievably, divorce should be granted.

Whenever the question of inclusion of irretrievable breakdown of marriage as a ground for divorce is mooted, the opponents argue that “divorce by mutual consent” introduced in the Hindu Marriage Act in 1976 more than covers the situation. It is important to note that “mutual consent” requires the consent of both the parties and if one or the other does not cooperate, the said ground is not available. ‘Irretrievable breakdown of marriage’, on the other hand, is a ground which the Court can examine and if the Court, on the facts of the case, comes to the conclusion that the marriage cannot be repaired/saved, divorce can be granted. The grant of divorce is not dependent on the volition of the parties but on the Court coming to the conclusion, on the facts pleaded, that the marriage has irretrievably broken down.

In another leading case, Harpit Singh Anand vs State of West Bengal10, the husband and wife filed various criminal cases against each other and their marriage had broken down completely beyond repair. A Special Leave Petition before the Supreme Court requesting the Court to exercise its powers under Article 142 of the Indian Constitution to grant bail and seeking divorce. The Supreme Court held that despite all efforts by the relatives and well-wishers, the marriage cannot be repaired and there is irretrievable breakdown of marriage and granted divorce by mutual consent. 

In the case of R. Srinivas Kumar vs R.Shametha,201911, the husband and wife had been living separately for the past 22 years, and the wife was not agreeing for divorce, the husband filed a Special Leave Petition seeking divorce on the grounds of irretrievable breakdown of marriage and requested the Supreme Court to exercise its powers under Article 142 of the Indian Constitution. The Supreme Court held that, “Where neither grounds specified under S.13 for divorce established nor mutual consent between the parties as per S.13-B exists, and all efforts to save the marriage failed, Supreme Court, considering facts and circumstances of the case on being satisfied that marriage has irretrievably broken down, can dissolve such marital relationship which is already dead, with a view to do complete justice between parties in exercise of power under Article 142 of the Indian Constitution.”

While allowing divorce in the case of “Sumitra V Sitaram Patel”12, where both the partners alleged cruelty by each other, the Supreme Court while exercising its powers under Article 142 of the Indian Constitution held that even though irretrievable breakdown of marriage is not a ground for divorce under the HMA,1955, where a marriage is beyond repair on account of bitterness created by the acts of either or both the parties, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. 

 

LANDMARK JUDGEMENTS:

  • N.G. Dastane vs. Shrikant S. Shivde and Ors.13

FACTS- The Appellant and the Respondent got married in 1956. The Respondent’s father had, before finalizing the marriage, informed the Appellant about the Respondent having suffered from a bad attack of sunstroke and cerebral malaria in the past and now she had completely recovered from it. The Respondent was pregnant at the time of separation. The Appellant alleged being treated with cruelty and seek divorce on the same ground. 

ISSUE- Does sexual intercourse indicate condonation of cruelty?

DECISION- It was held that sexual intercourse indicates condonation of cruelty as it is a sign    of normal marriage life. Divorce was rejected.

  • Surestha Devi V Om Prakash14

FACTS- Both the parties filed for a petition for divorce by mutual consent under S.13B of HMA,1955 on 8 January,1985. On 9 January,1985, the Appellant filed a statement that she was coerced to file the petition for divorce and it was not from her own free will and prayed for dismissal of application. 

ISSUE- Can a party unilaterally withdraw consent?

DECISION- If the parties have filed a petition under S.13B, they need not establish that they cannot live together anymore as the same is suggested by filing of such application. The statutory provision of waiting for 6-18 months before finalizing the divorce ensures that such consent has not been maliciously obtained. Consent of both the parties is a sine qua non for granting divorce under S.13B. If either party withdraws consent, divorce cannot be granted. Divorce was rejected.

 

WRITTEN BY

Name: Piyushi Dhingra

College: Law Centre-1, Faculty of Law, University of Delhi 

 

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