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Aditya Gaur

Int. B.Com. LL.B. (Hons) Vth Sem with Specialization in Taxation Laws College of Legal Studies, University of Petroleum and Energy Studies Dehradun. Contact: 8979426379

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Aditya Gaur.

  1. Introduction

Divorce as a word means legal dissolution of Marriage by a Court or any competent authority. “Any Marriage which is solemnized, whether before or after the commencement of Hindu Marriage Act, May be dissolved by a decree2 of Divorce”3. Divorce Brings end to a legal relationship but it doesn’t has any direct application on personal relationship. For Example if any couple may have cohabited for only few days of Marriage, and after this they may have lived separate and apart with hate or anything, but they will remain husband and wife in the eyes of Law, there is no such thing mentioned anywhere that they won’t be husband and wife anymore.4 Divorce doesn’t end the person relationship between the persons. Although the Marriage separation is legal in India, the process is quiet lengthy. Hindu Marriage Act Introduce many theories of Divorce under the Act like-Fault, Mutual Consent and Breakdown.

Acc. to Kautallya’s Arthshastra “Marriage might dissolved because of unhappiness and other circumstances but Manu doesn’t believe in discontinuance of Marriage. He declares “let mutual fidelity continue till death, this in brief may be understood to be the highest drama of Husband and Wife.”5 Manu Declares that a wife can’t be left by her husband by sale or abandoned or by any other means implying that once tie can’t be severed. Manu treated this as Adharma.

Evolution of Divorce

Before going further and discuss more about divorces. We should be known about how divorce was introduced and evolved in India. The History of Divorce goes back to thousand years its origin can be traced back from the Vedas. During the Vedic age Hindu Marriage was considered as indissoluble, that can’t be terminated and that is bound with many sentiments. Manus’s ultimate verdict on Women was that where the women lives happily and with respect the almighty god brings happiness and cherish the house as well and the house in which the women has to sacrifice for everything, live in sorrow or are dishonored a curse dwells in that house and no religious benefits can be taken. Manu was also very much harsh upon women he said that woman are just a child procreating machine and don’t have any rights over the property. A woman should obey her husband and do his “Seva” all her life.6

Acc. to Aristotle “Woman is to the man as a slave like a servant to the master. The male is the natural superiors and female as inferior.”7 One of the foreign explorer also reflected the same he said that “a male and female or husband and wife can’t be equal they have a mental fight between them. There can be no peace without victory and it is not possible till one of them accepts another as Master. The dissimilarity between man and woman should be increased.”

There are different laws of divorce for Different religion. Hindus are governed under Hindu Marriage Act, 1955. Muslims are governed under Personal Law, Dissolution of Marriage Act, 1939 and The Muslim Women protection of Rights and Divorce Act, 1986. Christians are governed under Indian Divorce Act, 1869 and Indian Christians Marriage Act, 1872 and Parsis are governed by The Parsi Marriage Act, 1936 and there is also a secular act called as Special Marriage Act, 1954.

Grounds of Divorce.

A Marriage can be dissolve by the decree of the court when a wife or husband files a petition under these grounds:-

I) having voluntarily intercourse with a person other than his or her spouse.

II) Has treated the petitioner with cruelty after marriage.

III) Has deserted the petitioner for a continuous period of not less than two years.

IV) Has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.8

Section 13 of Hindu Marriage Act, 1955 also describes the following grounds of Divorce as under:

1. Adultery.

2. Conversion.

3. Leprosy.

4. Renounced the World.

5. Not heard alive for seven years.

6. Judicial Separation.

In the case of Apurba Mohan Ghosh v. Manashi Ghosh9, “the apex court clearly held that when the parties have given their mutual consent of getting divorce and there are no chances of their getting reunited. Their consent is also given by free consent not by any fraud or undue influence. In this case court will allow them to get divorced.”

Mutual Consent Divorce

Section 13B of Hindu Marriage Act, 1955 Provides with the Mutual Consent Divorce. Period of Separation is 1 Year.

Section 28 of Special Marriage Act, 1954 provides for divorce by Mutual consent.

Section 10A of Divorce Act, 1869, Provides for Divorce by Mutual Consent.

There are two ways of Getting Divorce in India. One is Mutual Consent Divorce and second is Contested Divorce. Mutual Consent is the easiest way of getting a divorce. Under this process both party should be equally agreed and should give free consent to get separated.

Condition Required under Mutual Consent Divorce is-

Both husband and wife have been living separately for a time more than one year.
That they were unable to live together.
And that the husband and wife are mutually agreed that the marriage is collapsed.
In addition of this both of them have to mutually decide about two important things-

1. Alimony

This is the amount that has to be paid by the husband to the wife after getting separated. There is no limit for this. Both husband and wife has to agree upon some figure and court doesn’t has to do anything with his.

2. Child Custody

If the couple is having Child or children than they have to agree upon a thing that who will be taking care of the child. Child custody can be shared, joint or exclusive, depending upon their understandings.

In the case of Garasia v. Mansu @Minachamanlal Gangi,10 it has been observed that the provision on such waiting time were in the nature of being directory and not mandatory. It was a case under marriage act for dissolution of marriage under section 13.11 During pendency of such a nature, the parties filed a miscellaneous application for converting the main petition into a joint petition for dissolution of Marriage on mutual consent under section 13b. The parties also prayed for waiving of the waiting time. They pleaded that they are living separately for a longer period of time already. The court said that there are no chances of getting reunited again so the court waived the waiting time.12

How to file a Divorce under Mutual Consent:

The husband and Wife should be living separately for One Year.

Both Parties will file a Petition under the Court.
The statement of both the parties will be recorded and Signed under a sheet of Paper before the honorable Court.
Then the court will provide the parties with a period of six months to resolve the disputes among them and to consider their relationship all over again or they want to carry on with the separation process. This is Called Reconcile Period.
At the end of the said period Court will call both the parties in case they haven’t changed their mind.
After listening both the parties Court will announce its decision.13
Contested Divorce

However. Not all the parties agree upon getting mutual consent divorce. In some cases, one party files the divorce case in the court and the other contests it. The ground for contesting can be anything. But the ground on which the case has been filed by a party in the court is given under-

(i) Adultery.

(ii) Willful desertion of the petitioner by the spouse for more than 2 years.

(iii) Physical or mental torture on the petitioner by the spouse.

(iv) Sexual impotency or unable to perform sexual intercourse.

(v) Insanity or suffering from any mental disease of the spouse.

Documents Needed to Contested Divorce.

Income Tax Statement for the last two years.
Details of the present profession of the petitioner.
Information related to the family background.
Information of all the assets if have any.
How to File a Divorce under Contested Divorce.

Grounds on which the divorce has to be filed should be clear.
All the documents and evidence should be collected. For filing a case it is very necessary to have appropriate evidence.
File the petition.
The court then summon the other party if the other party arrives than the court will hear arguments of both the side and if the other party don’t show up the court will give ex-parte judgment.
The court will then examine all the evidence and documents and will hear cross-examinatio n of parties.
Then the court will decide the case.
This is very time and money consuming process.
Landmark Judgments on Divorce.

Cruelty as a Ground for Divorce.

V.Bhagat versus. D.Bhagat (Mrs.).14

A two judge’s bench referred that “mental cruelty can broadly be defined as that conduct which inflicts upon the other party such pain and mental suffering as would not make possible for the party to live with another. The mental cruelty should be of a nature that the other party should not be reasonably live with another.”15

A. Jayachandera versus. Aneel Kaure16

“It has been ruled that the question of mental cruelty should be considered in the light of the norms of the society and their social values, status and Environment in which they live. If the conduct of a spouse creates an apprehension in the mind of others about his mental or physical welfare than it would amount to cruelty.”

Denial of Sex is Valid Ground for Divorce.

Smt. Shashi Bala vs. Shri Rajiv Arora17

The verdict came on petition by a husband seeking divorce, complaining that his wife had subjected him to mental cruelty by not allowing him to have physical relationship for four and a half years, though she was not suffering from any physical disability.

“In view of foregoing discussion, we are of the considered view that the husband has fully established that he was subjected to mental cruelty by the wife by denying sex to him for a long period despite living under the same roof, without any justification and though she was not suffering from any physical disability” a bench comprising Justice Pradeep Nandrajog and Pratibha Rani Said.18

Hindu Couple can Remarry after Divorce.

Shivram Dodanna Shetty V. Sharmilla Shetty.

The ruling came from a full bench Presided over by Justice Naresh Patil, Justice Ramesh Dhanuka and Justice Sadhana Jadhav. This judgment came as the relief to estranged Hindu couples who want to challenge the orders. Decree and verdicts of the family court.

“The court said that the Hindu couple that got divorced by the family court can remarry within 90 days after the verdict of the court.”

An Important judgment has also given by the Aurangabad bench of the Bombay High Court that the talaq even if it is oral must be proved before the court, if it contested by the wife with leading evidence.
This judgement of the high court will help the Muslim woman who are arbitrarily divorced by pronouncing of talaq three times. It was very rigid and unfair with the Muslim woman.

Conclusion.

Religions like Hindu consider their marriage as unbroken bond. Prior to the Acts made by the legislation or executive there were no such provisions for divorce. The concept of divorce or termination of relationship wasn’t even in the mind of people at that time. Woman were treated as slave all lifelong. But time has changed, situation has changed, now woman are treated with more respect. There are courts now to set free woman or man from an unpleasant marriage. There are many ground on which a divorce can be taken without any problem. Taking a divorce is always a stressful and big step that is why courts have also made it easy for the people of the country. The difference of sexes has also reduced nowadays.

Everything comes with pros and cons. And introducing the divorce in the independent India may reduce the content of marriage. It can completely stop the concept of marriage by continuous breakdown of marriages by court. Breakdown of marriage easily can also encourage the person to marriage again and again. That will surely harm the culture related with marriages in India. That is why it is very necessary for our lawmakers to deal with this matter and should make laws in a very cautious manner.

1 B.comLLB 3rd Year, UPES, Dehradun.
2 All Decree of Divorce are, in the first instance and the marriage is finally terminated when the decree made absolute.
3 Section 13, Hindu Marriage Act, 1955.
4 See the form of Solemnization of Marriage in Common Prayer.
5 Agarwal R.K, Hindu Law, Central Law Agency, Print 2014.
6 Ibid, Verses II 213-214k IV, 205-206,V,146-14 8, VIII, 416, IX, 2-3, 14-20, 45-46,104,IX,36- 37.
7 Aristotle, The Politics, ch-1, p-13, R.G. Mulgan, Aristotle’s Political Theory, Pages 20, 44-47,61,79, Clarenden Press (1977).
8 Section 13, Hindu Marriage Act, 1955.
9 AIR 1989 Cal 115: 93 CWN 79: I (1990) DMC145: (1988) 2 CHN 449.
10 1987 (2) GLR 1321: II (1988) DMC 243
11 Hindu Marriage Act, 1955.
12See at http://shodhgang a.inflibnet.ac.i n/bitstream/1060 3/39005/11/11_ch apter%203.pdf.
13 See at http://www.vakil no1.com/legal-ad vice/divorce-mut ual-consent-indi a-step-step-proc edure.html.
14 (1994) SCC 337.
15 https://indianka noon.org/doc/184 8484/.
16 (2005) 2 SCC 22.
17 Judgment delivered on 21.03.2012.
18 https://indianka noon.org/doc/133 858876.


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