Divorce Law

You must know about Divorce Law in India & Divorce Grounds

India is believing the unity in diversity, this diversity strongly based on religions. The Indian judiciary has implemented laws separately to handle and believe of the particular community or religions.

  1. The Hindu Marriage Act, 1955
  2. The Parsi Marriage and Divorce Act, 1936
  3. The dissolution of Muslim Marriage act, 1939
  4. The Special Marriage Act, 1956
  5. The Foreign Marriage Act, 1969

Under Hindu Marriage Act, 1955 both husband and wife have right to dissolved their marriage by a decree of divorce on the ground more specifically mentioned in sec 13 of Hindu Marriage Act, 1955. Under this provision of this Act either party can seek divorce in following two ways.

  1. When either party to the marriage had committed a matrimonial offence. Under this theory it is necessary to have a guilty and innocent party. In this type of divorce only innocent party can seek a remedy of divorce. Sec 13 of Hindu Marriage Act 1955 mentioned it clearly.
  2. In another, divorce by mutual consent. In this divorce parties can dissolved their marriage by free will. Sec 13(b) mentioned it clearly.

Following are the grounds on the basis of which party may file divorce and marriage may be dissolved by a decree of divorce.

A) ADULTERYVoluntary intercourse with any other person other than spouse is adultery. Before the amendment in Marriage Laws Amendment Act 1976, divorce could be granted only if such spouse was living in adultery but after Amendment,  even a single voluntary sexual act with any other person other than a spouse is sufficient ground for divorce.

B) CRUELTY – If the either party treated another with cruelty on the basis of which divorce can be seek. Cruelty may be treated as  mental or physical.

C) DESERTION – This has been added as a ground of a divorce by the Amendment Act 1976. The desertion of the petitioner with the another spouse , without any reasonable cause and without the consent of that other spouse.Desertion may be

Desertion may be
Actual Desertion
Constructive Desertion
Willful Neglect

D) CONVERSION – When other party converted to another religion & ceased to be Hindu is the ground for divorce.

E) UNSOUNDNESS OF MIND – When the spouse has been suffering from mental disorder of such a kind & to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

F) VIRULENT & INCURABLE LEPROSY – Either party suffering from a virulent & incurable form of leprosy.

G) VENEREAL DISEASES IN COMMUNICABLE FORM –
If the disease is communicable by nature irrespective of period from which respondent has suffered from, is the ground for divorce.

H) ENTERING NEW RELIGIOUS ORDER –
The petitioner has to prove that the other spouse has ceased to be a Hindu. The conversion does not atomically dissolve the marriage, it provides ground for diverse.

I) PRESUMPTION OF DEATH –
If a person has not been heard of as being alive for a period of at least seven years. It would be only if the presumption of death under Sec 8 of Indian Evidence Act, 1872.

DIVORCE BY MUTUAL CONSENT

When both husband & wife agreed that their marriage can not succeed, they may decide to get a divorce by mutual consent. It is not necessary to give any reason to the court for such divorce. Following points should be considered while seeking divorce by Mutual Consent.

  • Both the husband & wife living separately from last 1 year
  • Both of them agreed that they can’t stay together
  • None of them has been forced to give the application.

However the Court cannot take any action for six months so that the husband & wife can consider their decision from the date of presentation of petition and not later than eighteen month. If one of the party withdrawn the consent, the court make inquiry in this regard & if there is no consent at the time of inquiry then court cannot pass the decree of divorce.

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