Divorce Lawyers in Jabalpur High Court, Best Divorce Lawyers in Jabalpur: February 2012

What is Divorce...

Divorce (or the dissolution of marriage) is the final termination of a marital union, cancelling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties. In most countries divorce requires the sanction of a court or other authority in a legal process. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt.

In India, divorce and remarriage are legal; divorce can be applied only after one year of marriage. Divorce rates in India are amongst the lowest in the world. The divorce rate is lower in the villages; higher in urban areas. In last decade divorce rates in India’s urban sphere has been increasing at a much higher rate.

The very counter word for marriage is divorce. Divorce is the legal separation of two spouses by bringing an end to the vows that they took during the sacred ceremony of marriage. The divorce procedure differs from one governmental jurisdiction to another. In India divorce is still a major social taboo and divorce seekers have to undergo several ordeals in order to get separated from each other. Unlike western countries like USA and Sweden, the divorce rate is significantly low in India.

In earlier days, in spite of existence of radical disparity between spouses, either of the two was expected to compromise with the other so that their marital bonding survives. In most cases women were forced to adjust with the unbearable post marital conditions for the welfare of the family, the children and even for herself as she was hardly open to any means of earning her own livelihood.

India has different divorce laws for different religions. Almost all the religions has their own divorce laws in India which are used amongs themselves. There are seperate laws for inter-cast or inter-religion marriages. Divorce laws in India for Hindus is described in Hindu Marriage Act, 1955. Hindu Marriage Act is also used for Sikhs, Buddhists and Jains as they don’t have their own seperate marriage and divorce laws.

Here is the list of various divorce laws in India for various religions:

Hindu (including Sikhs, Jains and Buddists): Hindu Marriage Act, 1955
Muslims: Dissolution of Muslim Marriages Act, 1939
Christians: Indian Divorce Act, 1869
Parsis: The Parsi Marriage and Divorce Act, 1936
Inter-Cast of Inter-Religion : Special Marriage Act, 1954

Grounds for Divorce in India: In India divorce is granted mainly on 4 different grounds.

Adultery
Desertion
Cruelty
Impotency
Chronic Diseases

Mutual Divorce in India: Mutual Divorce is to be filed by the couple only after they have lived apart for at least a year. A petition supported with affidavits for divorce should be filed in the district court by the both the spouses. The husband and the wife should jointly state to the court that they are unable to live together as they are facing immense difficulties in adjustment.

The Law
All major religions have their own laws which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages.

Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939, which provides the grounds on which women can obtain a divorce, and the uncodified civil law. Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1956 .Other community specific legislation includes the Native Converts’ Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a divorce if a spouse converts to Christianity.

Grounds for Divorce

In most Western nations, there are approximately 16 distinct reasons for which divorces are granted. In India,

however, only five main reasons are generally accepted as sufficient grounds for divorce.

Adultery. While no formal definition of adultery exists, it does have “a fairly established meaning in matrimonial law”, namely “the voluntary sexual intercourse of a married man or woman with a person other than the offender’s wife or husband”. While the law considers it valid grounds for either sex, adulterous women are “judged more harshly” than men.

The various religious regulations are not unanimous on this issue. The law regarding Hindus allows divorce to be granted on the grounds of infidelity of either husband or wife. The Christian law, however, would traditionally not have granted a divorce to a woman solely on the grounds of adultery. She would have had to prove another violation, such as cruelty .A recent Bombay High Court decision “recognised cruelty and desertion as independent grounds for the dissolution of a Christian marriage,” striking down a section of the law that allowed for an unconstitutional distinction between the sexes.

Desertion. The three main components of desertion are the “disruption of cohabitation, absence of just or reasonable cause and their combination throughout three years” before the abandoned spouse may petition for a divorce. There also must be an obvious intent on the part of the offending spouse to remain permanently apart from the other. This statute also applies to cases in which a spouse has been heard from for at least seven years.

Cruelty. As with adultery, “the definition of the type of behavior that constitutes cruelty varies according to the gender of the petitioner” of the divorce. “Despite the fact that cruelty is often equally available to husbands and wives, the way in which the law is interpreted and applied suggests that women and men are evaluated by rather different standards” .This category includes both physical and mental abuse and neglect.

A court decision made in early May 1997 made cruelty sufficient grounds for a Christian woman to obtain a; previously, the law required both adultery and cruelty to be proven. The national Indian Christian community seems to have embraced this judgment.

Impotency. This refers to the physical inability of the couple to consummate the marriage or the refusal by one spouse to do so. Some cases have established that sterility can be construed to mean non-consummation if the other partner is not aware of the condition before the marriage.

Chronic Disease. Both mental and physical illnesses are included in this category, as well as sexually transmitted diseases. Not all religions recognize identical diseases as grounds for divorce. Christians and Parsis do not allow divorce for a sexually transmitted disease or leprosy while the other communities do.

Divorce under Muslim law

Muslims are governed by their personal laws under which “Nikah” (i.e. marriage) is a contract and may be permanent or temporary and permits a man 4 wives if he treats all of them equally. To have a valid “Nikah” under the Muslim Law, presence of a Qazi (Priest) is not necessary. Merely a proposal in the presence and hearing of two sane males or one sane male and two sane female adults, all Muslims and acceptance of the said proposals at the same time constitute a valid Nikah under the Muslim Personal Law. A husband can divorce his wife without any reasons merely by pronouncing thrice the word “Talak”. However for a Muslim woman to obtain divorce certain conditions are necessary.

Restitution of Conjugal Rights Meaning, Restitution of Conjugal Rights Definition

The Hindu Marriage Act , 1955 - Section 9. Restitution of conjugal rights.- (1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.

The Indian Divorce Act, 1869 Section 32. Petition for restitution of conjugal rights. -When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, either wife, or husband may apply, by petition to the District Court or the High Court for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the

application should not be granted, may decree restitution of conjugal rights accordingly.

One of the important implications of section 9 is that it provides an opportunity to an aggrieved party to apply for maintenance under s 25. Maintenance can also be obtained by the party in case when the action is pending under s 24. Hence, a wife who doesn’t want a judicial separation or disruption of marriage can attain maintenance from her husband without filing a suit for the same under the Hindu Adoptions and Maintenance Act, 1956. Another important implication of the section is that it provides a ground for divorce under s 13(1A) on a condition that there has been no restitution of conjugal rights between them for a period of one year or more after the passing of a decree for restitution of conjugal rights.

Judicial separation Definition, Judicial separation Meaning

Judicial separation Definition: a court decree requiring a man and wife to cease cohabiting but not dissolving the marriage.

The Hindu Marriage Act , 1955 – Section 10 Judicial separation.- (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party-

(a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or

(c) has, for a period of not less than one year immediately preceding the presentation of the petition, been suffering from a virulent form of leprosy; or

(d) has, immediately before the presentation of the petition, been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or

(e) has been continuously of unsound mind for a period of not less than two years immediately preceding the presentation of the petition; or

(f) has, after the solemnization of the marriage, had sexual intercourse with any person other than his or her spouse.

Explanation.-In this section, the expression “desertion”, with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Legal separation (sometimes “judicial separation”, “separate maintenance”, “divorce a mensa et thoro”, or “divorce from bed-and-board”) is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally-binding consent decree. The most common reason for filing with the courts for a legal separation is to make interim financial arrangements for the two of them, such as deciding which one will pay which bills, possess which property, and whether one of them shall pay the other temporary financial support. These financial arrangements are actually what the term “separate maintenance” refers to, and “separate maintenance” is not a synonym for “legal separation”…

Difference between annulment and divorce

There are two ways to legally end a marriage – annulment and divorce. An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid. A divorce, or legal dissolution of a marriage, is the ending of a valid marriage between a man and a woman returning both parties to single status with the ability to remarry. While each individual state has its own laws regarding the grounds for an annulment or for a divorce, certain requirements apply nationwide.

Casting aspersion on spouse’s character torturous: High Court

Casting aspersion on the character of spouse is the worst form of cruelty and amounts to mental torture, the Delhi High Court has ruled while granting divorce to a woman from her husband.

“As per the settled legal position, casting such aspersions on the character of the spouse has the effect of causing deleterious effect on the mind of such spouse and the same is the worse form of cruelty,” justice Kailash Gambhir said while setting aside a lower court’s ruling which had dismissed a woman’s plea for divorce.

“The physical beating by the husband on many occasion by itself constitutes cruelty, but the scandalous allegation levelled by him attacking the moral character of the wife or attributing her relationship with some sadhu certainly amounts to worse form of cruelty in the absence of any corroboration to such allegations,” the judge said.

http://timesofindia.indiatimes.com/india/Casting-aspersion-on-spouses-character-torturous-High-Court/articleshow/9170301.cms

Divorce Personal Laws

The divorce procedure varies from the marriage acts

The divorce procedure varies from the marriage acts of one personal law to another. All Hindus including Sikhs, Buddhists and Jains can seek divorce under Hindu Marriage Act. Whereas communities like Parsi, Christians, Muslims, have their own laws related to divorce. For example, Christians divorce laws are regulated by the Indian Divorce Act, 1869, and that of a Parsi by Parsi Marriage and Divorce Act, 1936. Inter community marriages are governed by Special Marriage Act, 1956.

NULLITY OF MARRIAGE AND DIVORCE - Hindu Marriage Act 1955

Section 11 - Void marriages :- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

Section 12 - Voidable marriages :- Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

that the marriage has not been consummated owing to the impotence of the respondent; or

that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

Notwithstanding any contained in sub-section (1), no petition for annulling a marriage:-

On the ground specified in clause (c) of sub-section (1) shall be entertained if:-

the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied:-

that the petitioner was at the time of the marriage ignorant of the facts alleged;

that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

Section 13 - Divorce :-

Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

has, after the solemnization of the marriage, treated the petitioner with cruelty; or

has deserted the petitioner for a continues period of not less than two years immediately preceding the presentation of the petition; or the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground;

in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner;

Provided that in either case the other wife is alive at the time of the presentation of the petition; or

that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

that in a suit under section 18 of the Hindu Adoption sand Maintenance Act, 1956(78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure , 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;

that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age of eighteen years.

Explanation:- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) act, 1976 (68 of 1976).

Section 13B - Divorce by mutual consent :-

Subject to the provisions of this Act a petition for dissolution of marriage by decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the marriage Laws (Amendment) Act 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Section 24 - Maintenance pendent life and expenses of proceedings :- Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to be court to be reasonable.

Section 25 - Permanent alimony and maintenance :-

Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to he respondent’s own income and other property, if any, the income and other property of the applicant the conduct of the parties and other circumstances of the case it may seem to the court to be jest and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

If the court is satisfied that the party in whose favour an order has been made under this section has re-married or if, such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

The Hindu Marriage Act 1955 lists 9 grounds for divorce

The Hindu Marriage Act 1955 lists 9 grounds for divorce. Namely –

Adultery
Cruelty
Desertion
Conversion of religion
Unsoundness of mind / serious mental disorder
Virulent and incurable form of leprosy of partner
Venereal and communicable disease suffered by a partner
Renunciation of the world
Unknown whereabouts of partner for more atleast 7 years

In addition to the above grounds, parties may also file for dissolution of marriage on the grounds of mutual consent, no resumption of cohabitation or no restitution of conjugal rights for a period of one year or upwards after a judicial decree of separation has already been passed.

Women have certain additional grounds for filing, namely – polygamous husband, rape or sodomy inflicted on her, or if she was married before she attained the age of 15 as long as the marriage was repudiated before she attains the age of 18.

Divorce under Muslim law

Laws related to NRI divorce

Laws related to NRI divorce.

If both the spouses are Indians and have been married under Hindu marriage Act of 1955 they can seek divorce with mutual consent under section 13-b that provides for divorce by mutual consent.
If both the spouses are residing in USA, or any other foreign country, then they can seek divorce by mutual consent under the country’s divorce laws related to foreign marriages. The Indian legal system will recognize the divorce only if it is with the consent of both the parties.

Divorce procedure in India is based on the following acts.

Divorce procedure in India is based on the following acts.
The Hindu Marriage Act, 1955
The Parsi Marriage and Divorce Act, 1936
The dissolution of Muslim Marriage act, 1939
The Parsi Marriage and Divorce Act, 1936
The Special Marriage Act, 1956
The Foreign Marriage Act, 1969

Information about India divorce and various aspects of divorce in India

Divorce (or the dissolution of marriage) is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties. In most countries divorce requires the sanction of a court or other authority in a legal process. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt. On an all-India level, the Special Marriage Act was passed in 1954, and the Hindu Marriage Act, in 1955 which legally permitted divorce to Hindus. Divorce can be sought by husband or wife on certain grounds, including: adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, and leprosy. Divorce causes great stigma among Hindus, especially those of the higher castes, and thus it is not common in this population. For consensual divorce there is a 6 months cooling off period after filing the consent terms in court before the divorce is granted. There are different laws for granting divorce in many communities.

The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.

Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act and such are included under cruelty.

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.

Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

Divorce under Muslim Law

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