Divorce Provisions under Hindu Laws in India
The marriages solemnized may suffer a breakdown and either husband or wife or even both may decide to dissolve Hindu Laws the marriage legally and move separate ways.
The Hindu Marriage Act, 1955 provides for some ways to dissolve the marriage which has been legally solemnized while keeping the essence of the sanctity of the marriage intact.
There may be a situation where the parties believed that the marriage has been solemnized but legally it has no value due to various conditions as mentioned in the Hindu Laws Act. Such are Void marriages. A decree of nullity is sufficed to be obtained for the competent court
There are situations where one party, upon fulfillment of certain conditions, may present a petition to get a marriage declared void. Such is Voidable marriages at the instance of one party.
What is a Void Marriage?
According to Section 11 of the Act, a marriage solemnized after the commencement of the Hindu Laws Act, may be declared as null and void in following conditions:
- If either party has a spouse living at the time of the marriage; or
- the parties are within the ‘degrees of prohibited relationship’
- the parties are sapindas to each other
Thus, if the marriage is proved to be void, no formal decree of divorce is required to be obtained by the parties through any Court.
What is a Voidable Marriage?
Voidable marriages are those which a valid, until declared as null and void by a competent court upon fulfillment of some conditions.
As per Section 12 of the Act, a marriage may be annulled through a decree of nullity when:
- due to the impotence of one party, the marriage has not been consummated
- the consent given to marriage is a consequence of unsoundness of mind
- Either party is suffering from such mental disorder that makes them unfit for marriage and procreation of children
The Apex Court through multiple cases has laid down that “To brand the spouse as unfit for marriage and procreation of children on account of the mental disorder, it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life”. The degree of ailment must be such that the petitioner spouse cannot reasonably be expected to live with the other.
- Either party is subject to recurrent insanity attacks
- The respondent was pregnant by a person other than the petitioner at the time of marriage.
- The consent of the petitioner was obtained through force, fraud or misrepresentation as to any material fact or circumstance of the respondent or the nature of the ceremony performed for solemnization of the marriage;
wherein the application for nullity is presented within 1 year of the marriage and no intercourse has taken place with the consent of the petitioner.
What are the Grounds Available for Divorce?
The Hindu Marriage Act provides for various grounds of divorce which are available to both, the husband and wife and there are some that are provided to the wife alone.
- Section 13(1) provides following grounds of divorce to both, husband and wife:
- The respondent has had voluntary sexual intercourse with another person, after the solemnization of marriage.
- During the course of marriage has treated the petitioner with cruelty;
Nature of cruelty has defined and explained in plethora judgments by various High Courts and the Supreme Court. The cruelty may either be mental or physical.
- The respondent has deserted the petitioner for a continuous period of not less than w years immediately preceding the presentation of the petition
- The respondent is-
- Suffering from an incurable and virulent form of leprosy;
- Of unsound mind which is incurable;
- Suffering continuously or intermittently from a mental disorder to such extent that the petitioner cannot reasonably be expected to cohabit with the respondent
- Suffering from a venereal disease which is in a communicable form
- The respondent has ceased to be a Hindu by conversion to any other religion
- The respondent has renounced the world by entering any religious order,
- The respondent has not been heard of as being alive for a period of minimum 7 years by those who would have heard in the natural state of events.
- If there has been no cohabitation for a period of minimum period of 1 year after the decree of Judicial Separation, under section 10 of the Act, was passed by the competent court.
- If there has not been a restitution of conjugal rights for a period of minimum 1 year a decree of restitution of conjugal rights, under section 9 of the Act, has been passed by the competent court.
- Section 13(2) Provides the wife with few additional grounds to present a petition for the dissolution of the marriage:
- The husband has been guilty of rape, sodomy or bestiality, after the solemnization of the marriage
- If the marriage was solemnized before the wife had attained the 15 years of age and she has repudiated the marriage upon becoming of 15 years but before turning 18 years (whether consummated or not).
- in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under section 125 of the Code of Criminal Procedure, 1973, a decree or order has been passed awarding maintenance to the wife and that since then cohabitation between the parties has not been resumed a for1 year
What are the Provisions of Divorce by Mutual Consent of Both Parties?
There are circumstances where both parties have mutually agreed to dissolve the marriage and part ways. For such situations, a provision was introduced in the Act by Section 13B.
- A petition of dissolution of marriage may be presented by both the parties together in the competent court, on the ground that they have not been able to live together as husband and wife, thus have mutually agreed that the marriage should be dissolved.
- According to 13B (2), a decree will not be passed before the expiry of 6 months, not later than 18 months, from the date of presentation of the petition. If within such a period the petition is not withdrawn, the court upon competing for satisfaction after making required inquiries and hearing the parties, pass a decree of divorce dissolving the marriage.
- The period of 6 months has been provided as a cooling period when the parties have an opportunity to reconsider their hurried decisions, actions, and its final consequences.
- But in recent times, the courts have been following a more relaxed approach. The courts have intended to balance the essence of the provision that the parties should not be unnecessarily forced to drag a relationship which has broken down beyond repair and the belief of the society that husband and wife should be given every possible help and mode to sort their differences and mend the cracks that may have appeared over time.
- In Amardeep Singh vs Harveen Kaur on 12 September 2017 (2017) 8 SCC 746, the apex court observed that “The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of the status of matrimony between unwilling partners did not serve any purpose…….. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.”
- The courts are of the view that the statutory period of 6 months can be waived out. Few guidelines for it are:
- 6 months as per Section 13B(2), in addition to 1 year as per Section 13B(1) is already over before petition has been presented;
- All efforts for mediation/conciliation to reunite the parties have failed and in near future, there is no likelihood of success.
- all differences including that of maintenance, custody of child etc have been amicably settled by the parties;
- The‘waiting period’ will only prolong their agony.
- The parties are genuinely interested in moving on and settling in their lives.
- Thus the courts are have established that the period of 6 months till 18 months is not mandatory but only directory and the courts are open to exercise its discretion as per the facts and circumstances of each individual case.
- The guidelines also suggest that in conducting such proceedings, the Court may go digital by utilizing video conferencing. It may also permit genuine representation of the parties through any close relations example parents or siblings, for any just or valid reason to satisfy the court that the parties are unable to appear in person.
- As per Section 14 of the Act, no petition for Divorce may be presented within one year of marriage. The courts have been lenient in their approach regarding this provision. The parties may approach the High Court for relaxation of such a period. The High Court upon satisfaction subject to the facts and circumstances and for the welfare of the parties and children born out of the wedlock, may waive off the period of 1 year OR in exceptional cases, direct the competent court to pass the order as may be but the effect of the same shall only be after 1 year of marriage is complete.
What is the Provision of the Jurisdiction of Resenting the Divorce Petition?
According to Section 19 of the Act, A petition may be presented to the District Judge of the local limits where:
- the marriage was solemnized,
- the respondent is residing while presenting the petition,
- The petitioner is residing while presenting the petition, if the respondent resides out of the territorial limits of the Act, or hasn’t been heard of for a period more than 7 years.
- the husband and wife last resided together,
- Upon the application of either party, the case may be transferred to another court which is also enabled to adjudicate the matter. There are various guidelines laid down for the transfer procedure since it is not a right available to the court but discretion to be exercised by the court.
- In the territories where the family court has been established by the due procedure of the Hindu Laws, the parties shall approach the family court of the jurisdiction and not the civil court.
What is Judicial Separation?
The reason for complexity in the divorce proceedings comes from the belief that marriage is sacred bond and links not only two people, but families. Thus, the courts in India are always more inclined towards attempts to mend the alliance and motivate the parties into sorting out their differences before a decree of Divorce is granted. Hindu Laws The court, by all means, strives to provide as much time to the parties as possible to rethink their decision to separate permanently and the repercussions of such actions.
- With such a perspective, the provision of Judicial Separation has been made part of the Hindu Laws Marriage Act. It is considered as the last resort before the marriage is broken. The effect of the order of Judicial Separation is that the legal relationship between the husband and wife does not change but the parties are not under any obligation to cohabit.
- The grounds to present such a petition are similar to that provided for the Divorce.
- If a divorce petition is presented, the court may, suo moto, pass an order of judicial separation to give the parties time to rethink their decision.
- If the court deems fit, it may rescind such a decree when it considers it just and reasonable.
Are Appeals From the Decrees and Orders Allowed Under the Hindu Laws Marriage Act?
Yes, the appeals from the decrees made by the court in proceedings under this Hindu Laws Act are allowed.
- For the decrees and orders under the Act by the special courts established under the Family Act, the appeal shall be preferred within a period of 30 days.
- For the decrees and orders under the Hindu Laws Act by the court exercising its original civil jurisdiction, the appeal shall be within a period of 90 days.
- There cannot be an appeal on the subject of costs alone
- There cannot be an appeal from a decree or order by the competent court with the consent of the parties
- The parties are free to remarry only if there is no right to appeal or the period to prefer an appeal has expired or the appeal preferred has been dismissed duly by the Hindu Laws Appellant Court.