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Divorce Laws in India

Divorce Laws in India: Grounds for Divorce in India under Hindu marriage Act: Hindu Marriage Act 1955: THE HINDU MARRIAGE ACT, 1955 (Act 25 of 1955)[18th May, 1955] An Act to amend and codify the law relating to marriage among Hindus. Preliminary Short title and extent:- (1) This Act may be called the Hindu Marriage Act, 1955. (2) It extends to the whole of India except the State of Jammu and Kashmir , and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories. Application of Act:- (1) This Act applies. a) to any person who is a Hindu by religion in any of of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. (b) to any person who is a Buddhist, Jaina or Sikh by religion. (c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Definitions:- In this Act, unless the context otherwise requires:- (a) the expression “custom” and “usage” signify any rule which, having been continuously and uniformally observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family; (b)”District Court” means, in any area for which there is a City Civil Court, that Court, and in any other area the principal Civil Court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of matters dealt with in this Act; (c)”full blood”and “half blood”- two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives; (d)”uterine blood” – two persons are said to be related to each other by uterine blood when they are descended from a common ancestor but by different husbands. Explanation. In Clauses (c) and (d) “ancestor” includes the father and “ancestress” the mother; (e)”prescribed” means prescribed by rules made under this Act; (f)(i)”Sapinda relationship” with reference to any person extends as far as the third generation(inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation; (ii) two persons are said to be “sapinda” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them; (g)”degrees of prohibited relationship ” – two persons are said to be within the “degrees of prohibited relationship”:- (I) if one is a lineal ascendant of the other; or (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or (iii)if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother or the other; or (iv)if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters. Explanation. for the purposes of clauses (f) and (g) relationship includes- (I) relationship by half or uterine blood as well as by full blood; (ii) illegitimate blood relationship as well as legitimate; (iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly. 13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of the 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- (i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be a Hindu by conversion to another religion ; or (iii) has been incurably of unsound mind, or has 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. In this sub-section, the expression “desertion” 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, and its grammatical variations and cognate expression shall be construed accordingly. 1-A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties. 2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the 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; (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or (iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (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 ecree or order, cohabitation between the parties has not been resumed for one year or upwards;or (iv) 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 that age but before attaining the age of eighteen years. DISSOLUTION OF MARRIAGE: The same laws according to which the marriage was solemnized govern dissolution of marriages, and the rights consequent to the dissolution. The Indian Divorce, Act Special Marriage Act, the Parsi Marriage and Divorce Act and the Hindu Marriage Act, provide for annulment of the marriage, since its very inception, on grounds such as the non-fulfilment of mandatory conditions.. The Indian Divorce act requires confirmation by the High Court to come into effect.

The acts also prescribe that marriages may be annulled by decree if a party willfully refuses to consummate the marriage, or if the wife was pregnant by a person other than the husband at the time of marriage, or if the consent of the parties was procured by coercion or fraud. I have received queries whether this would cover situations of ‘pressure’ and ‘emotional blackmail’ from parents. It would depend on the circumstances. But I doubt the court would accept such a ground if the party was an educated, employed adult and who was otherwise socially independent. Social and religious circumstances surrounding marriage in India do give rise to situations such as these where persons consider themselves bound by parental approval or decisions. GROUND ON WHICH MARRIAGE CAN BE DISSOLVED: 1. Adultery 2. Cruelty 3. Desertion and failure to maintain 4. Conversion to another religion 5. Incurable mental disorder 6.

Incurable mental disorder which may result in abnormally aggressive or irresponsible behaviour 7. Virulent and incurable leprosy, or communicable venereal disease not contracted from the party filing the application. 8. Renunciation of worldly life. The parties may decide to seek divorce by mutual consent, having decided that they do not want to live together. In such a petition, they need not disclose their reasons for making such a decision. Muslim personal law aspect also grants several options for the husband to seek divorce without approaching the court. The wife would be entitled to maintenance and dower and also to appeal the divorce in court. What the law says for divorce by mutual consent: 13-B. Divorce by mutual consent. (1) Subject to the provisions of this Act a petition for dissolution of marriage by a 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, 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. (2) On the motion of both the parties made 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 mean time, 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.

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