The Hindu Marriage Act 1955 under Section 13B has a provision for divorce by mutual consent; however, it puts some conditions which must be fulfilled by the parties. For instance, husband and wife have been living separately for a period of one year or more, they must also be unable to live together, and both have mutually agreed that the marriage has totally collapsed.
The fastest way or procedure of getting divorce in India is divorce by mutual consent as other options may linger on for decades. The law says that all marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 can be annulled provided the parties to marriage consent for the same in front of the court.
How to start a divorce based on mutual consent?
The provision for consensual divorce has been for estranged spouses under Sec. 13-B of The Hindu Marriage Act, Sec. 28 of The Special Marriage Act, and
Sec.10-A of The Indian Divorce Act. The settled procedure is that for seeking a divorce by mutual consent the parties must file a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division.
The petition which is also called the First Motion Petition for Mutual Consent Divorce should contain a joint statement by both partners present in Court. The two parties must convey that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court.
There are a lot of conflicting issues that may come when the husband and wife are agreeing upon for a mutual consent divorce. For instance, child care, alimony to wife, return of dowry items, litigation expenses, etc. should be settled long before the actual filing for divorce by mutual consent to avoid any issues later on.
What if one party does not consent?
A lot of cases come up when not all estranged couples agree on the desirability, grounds or the conditions of divorce and that is where trouble for the partner that is willing for presenting the petition starts. The government of India is mulling for amending the HMA to accommodate irretrievable breakdown of marriage and provide divorce.
Thus, there are several advantages of mutual divorce; for instance, you not just save time and money but also do not lose respect in front of relatives and the estranged partner as its mutually agreed divorce and no bitter feeling.
The principle question is private international law i.e. whether a marriage which was solemnized in India can be dissolved by the court in the US. Seeing the various cases settled by the high courts and the Supreme Court of India, it looks the judges decided each case on its merit and special set of circumstances and requirements.
For instance, if you got married in India but got divorce in the US through mutual consent, it will be valid, legal and binding in Indian Courts by virtue of section 13 and 14 of Code of Civil Procedure and also on account of comity of Nations. The law for such a divorce is settled and does not even need validation in Indian Courts.
However, the trouble for divorces that have been given on the grounds that are not available in India under the law i.e. Hindu Marriage Act or Special Marriage Act, they can be challenged. Contested Divorce is not valid and binding; there are certain equations that must be correct in order to get enforced.
What Happens When Divorce is contested in India?
In case you did not contest the divorce in the US, you can contest it in India where the marriage took place as divorce granted by foreign Court will not be applicable. At the same time if you want your spouse not to file a divorce case in the US, you can file a case in India and prevent him from proceeding in the US Court.
Moreover, as Indian Courts have jurisdiction over its citizen, ex-parte decree of divorce granted by the court in the US won’t be valid. The Section 13 of Code of Civil Procedure talks about recognition of Foreign Judgments in India and reading this and various judgments from the Supreme Court it’s clear that any foreign judgment if opposed to natural justice, founded on breach of Indian law or obtained by fraud, would not be recognized in India.
Therefore, an ex-parte divorce won’t get recognition, particularly when the party was not contesting it. Thus, except for the divorce obtained through mutual consent and where the both parties contested for the divorce, there are no other options for you to get divorce in the US.
The simple law in India is that if you obtain a divorce decree in the US which is not recognized in the Indian Courts on the ground that the US court had no jurisdiction over the matter, the marriage is recognized in India but annulled in the US.
If you are married under the Hindu Marriage Act, 1955, you have several grounds for divorce provided by the law itself. Here we are discussing all the grounds mentioned in Section 13 of the Act that you can base you case for divorcing your partner.
You can file for divorce:
- If your husband has renounced the world by entering any religious order;
- If he has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive;
- If he has after the marriage had voluntary sexual intercourse with any other person;
- If he is treating you cruelly;
- If he has deserted you for a continuous period of not less than two years immediately preceding the presentation of the petition;
- If he has ceased to be a Hindu by conversion to another religion;
- If he is suffering from incurably of unsound mind or has been continuously or intermittently from a mental disorder that you cannot reasonably be expected to live with such a person;
- If your husband is suffering from a virulent and incurable form of leprosy;
- If he is suffering from venereal disease in a communicable form;
Some Additional Ground Available for you to file for Divorce
The above mentioned grounds are available for both husband and wife; however, there are some additional grounds that are available only for wife; For instance, if your husband has been found guilty of rape, sodomy or bestiality, you can ask for divorce. Similarly, if your marriage whether consummated or not was solemnized before you attained the age of 15 years, and you want to divorce, you can do so.
Alternate relief in divorce proceedings Under Section 13A
There is also a provision for an alternative relief for parties wherein a court can pass a decree for judicial separation on a petition for dissolution of marriage. The proviso is that it should not be on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13.
The government has also proposed a law under Irretrievable Breakdown of Marriage Bill which allows a wife to file a No-Fault Divorce. If the law is passed you can file a case for divorce if you realize the marriage is beyond any repair and there is enough ground to believe it.
Recently, Women and Child Development Minister Maneka Gandhi showed her concern towards the protection of women who face abuse from their sons and daughter-in-law and sought an amendment to the Domestic Violence Act. However, it did not occur to her that thousands of men too have been framed and sent to jail by scheming wives abusing the DVA.
Though it’s true that a lot of abuse is done to women in homes that don’t fall in the category of wife and they must need a cover under the Domestic Violence Act and for that an amendment to the law is essential, the minster must have given her thought to those who are languishing in jail for the no wrong on their part.
When Maneka Gandhi said that many cases have been brought to the notice where elderly women have been misbehaved with or even tortured by their sons and daughters-in-law for property or other reasons, there must be law to provide them protection, she forgot to mention that a lot of women like mother-in-law also face arrest under IPC 498A.
In fact, 498A has been abused to the extent that many elderly women in their 80s have been sent to jail. Should she not also talk about amending 498A so that its abuse is stopped and the concern she is showing for mothers and elderly is addressed as well. Whereas she is talking about amending the DVA to help women, there is one law that is being used to harass them.
Domestic Violence Act does not Provide Protection to Men
According to Save Indian Family Foundation it’s not just women but men too face domestic violence; however, as it is not recognized by the law the cases don’t come to front. A major reason behind the legislators ignoring the men being made subject to domestic violence is the wrong perception in the patriarchal society that men cannot be victims.
Rather than focusing on the substantive abuse of the DVA, the Women and Child Development Minister is trying to amend the law and make it even better tool than 498A in the hands of women to abuse it for the malafide purposes.
Should not the men too should be given protection under the DVA as any cruelty or violence is wrong per se and giving protection only to one gender is against the natural justice at least from the number of cases where women used it to settle score have gone up, recently.
In an attempt to amend and codify the law relating to marriage among Hindus, the Hindu Marriage Act, as part of the Hindu Code Bill, was passed by the Parliament of India in 1955. The law brought in some new concept to Hindu marriage which was alien. For instance, it was for the first time that legal separation and divorce were introduced to Hindu marriage by this law.
Apart from bringing up uniformity of law for all sections of Hindus, the Hindu Marriage Act has been able to regulate the personal life among the Hindus, especially their institution of marriage, legitimacy of marriages and conditions for divorce and applicability, etc. amongst others. It recognizes all non-Abrahmic religions as Hindus.
Thus, the Hindu Marriage Act is applicable to Jains, Sikh, Buddhists, and Prarthana, Arya and Brahmo Samajas as well. The Act has balanced the matrimonial laws of Hindus and made them comparable with the ones available in the western democracies. The insertion of clauses for divorce gave the much needed respite to the failed marriages.
The Hindu Marriage Act Made Divorce Easy, Yet a Lot of Court Cases Pending
Now, under Section 13 of the Hindu Marriage Act and Section 27 of the Special Marriage Act, any party file a suit for divorce on the various grounds mentioned specifically. Similarly, Section 13-B of the Hindu Marriage Act and Section 28 of the Special Marriage Act provide for divorce by mutual consent.
A lot of efforts are being made to facilitate divorce in situations where the marriages have become living hell. However, a major concern even now is that a lot of divorce cases are pending with the courts. The Indian government has responded to a rise in marital breakups and a backlog in divorce cases and proposing an amendment to make it easier.
Is Registration of Marriage Essential Under the Hindu Marriage Act?
The Section 8 of the Hindu Marriage Act says that the state government may make rules for the registration of Hindu marriages that the parties to any of such marriages may have particulars relating to their marriages entered in such a manner and subject to such conditions as may be prescribed in the Hindu Marriage Register.
A lot of governments like Delhi NCR have the compulsory registration of the Hindu marriage. The section was added for facilitating the proof of Hindu marriages, particularly wherein the rituals are ambiguous and may create an impression that the marriage was never solemnized. In such situations the relief that is needed from marital disputes is not available for the parties.
Various celebrities in Bollywood and elsewhere have interfaith marriages and they never had any problems while getting married; however, there are a lot of troubles for ordinary people in India to get married if their faiths are different. A major reason behind the hurdles on interfaith marriage put by Hindus and Muslims is that it is looked down.
To avoid interfaith marriages, both the Hindu and Islamic Marriage Acts have labeled marriage to someone from the opposite religion as void. However, this does not mean that if two persons want to get married there is no solution provided by the constitution of India. The solution came in the form of Special Marriage Act, 1954.
When the parliament of India passed the Special Marriage Act of 1956 to provide some legal recognition to people in a Hindu-Muslim marriage, the legislators had thought that it would help in the national integrity and provide the much needed respite to the people who cannot get married the traditional way of their religions.
However, this Act does not override the separate clauses of the Hindu and Muslim laws as it says that the spouses continue to be bound by the laws of their respective religions, unless one of them gets converted.
If a Hindu does not convert, he/she does not lose the right to inherit the property by succession or the same applies to Hindu Coparcener’s right in an Ancestral Hindu Property.
Who is Eligible to Get Married under the Special Marriage Act?
The Special Marriage Act does not recognize every marriage; there must be some conditions fulfilled before a marriage is recognized by the Act e.g. the marriage is a civil contract, involving no form of rites or ceremonies, both parties must not be involved in any other existing valid marriage.
Similarly, the parties should not be mentally incapacitated, and must be capable of giving a valid consent for the union and the bride must be at least 18 years old, and the bridegroom must have attained 21 years. Every marriage officer must solemnize the intended marriage; however, if he refuses to do so, parties can appeal to the District Court within 30 days.
Advantages of Getting Married under the Special Marriage Act
It is sufficient to say that not just interfaith marriage, but Special Marriage Act also encourages swift procedure of marriage. If you have arranged all relevant and required documents beforehand, it hardly takes more than 10-20 minutes go get married under the Special Marriage Act.