hindu law divorce

8/17/2019 Hindu Law Divorce

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1. Introduction

Meaning of Divorce:

The legal dissolution of a marriage by a court or other competent body. "her divorce from her

first husband"

A divorce is the legal termination of a marriage by a court in a legal proceeding, requiring a

petition or complaint for divorce (or dissolution in some states) by one party. There are two types

of divorce-- fault and no-fault. A fault divorce is a udicial termination of a marriage based on

marital misconduct or other statutory cause requiring proof in a court of law by the divorcing

party that the divorcee had done one of several enumerated things as sufficient grounds for the

divorce. All states now have adopted some form of no-fault divorce! although some such as ew

#or$, restrict the availability of no-fault divorce and retain fault divorce generally. A no-fault

divorce is one in which neither party is required to prove fault, and one party must allege and

testify only that either irretrievable brea$down of the marriage or irreconcilable differences

between the parties ma$es termination of the marriage appropriate. %any states continue to offer

a separation agreement or decree, under which the right to cohabitation is terminated but the

marriage is not dissolved and the marital status of the parties is unaltered.

&tate law governs divorces'

, so the petitioning or complaining party can only file in the state inwhich heshe is and has been a resident for a certain period of time, which varies by state. The

most common issues in divorces are division of property, child custody and support, alimony

(spousal support), child visitation and attorneys fees. *nly state courts have urisdiction over

divorces, so the petitioning or complaining party can only file in the state in which heshe is and

has been a resident for a period of time. +n most states, the legal process of the divorce

procedures ta$e some time, to allow for a chance of reconciliation. The divorce decree is a court

order that states the rights and responsibilities of the divorced parties, including the basic

information regarding the divorce, case number, parties, date of divorce, and terms the parties

have agreed upon.

1 Modern Hindu law BY Paras Diwan “22nd Edition 2013 ,published by Allahabad law

aen!y" #p$%&'

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&eual relations with anyone other than your spouse is still a crime in many states, even if the

married couple is see$ing a divorce. The udge has a great deal of discretion in custody cases and

in awarding or restricting visitation rights. tramarital seual relations before divorce may be

used as evidence of marital misconduct during the marriage. Also, cohabitation with another

person may be a factor in reducing support payments received.

2. NATURE OF DIVORCE:i. Divorce:

The legal separation of man and wife, accomplished by the udgment or decree of a court,

and either totally dissolving the marriage relation, or suspending its effects as it concerns

the cohabitation of the parties.ii. Divii!"e Divorce:

ecree of divorce may be divided as between provisions for support and alimony and

provisions dissolving the marriage. octrine applied in cases under /ull /aith and 0redit

0lause in connection with effect of foreign divorce on support provisions.iii. Ex Parte Divorce:

ivorce proceeding in which only one spouse participates or one in which the other spouse

does not appear. The validity of such divorce depends upon the nature of the notice given to

the absent spouse.iv. Migrator# Divorce:

Term used to describe a divorce secured by a spouse or spouses who leave(s) histheir

domicile and move(s) to, or reside(s) temporarily in, another state or country for purpose of

securing the divorce.v. Divorce a mensa et thoro:

A divorce from table and bed, or from bed and board. A partial or qualified divorce, by

which the parties are separated and forbidden to live or cohabit together, without affecting

the marriage itself.vi. Divorce a vinculomatrimonii :

A divorce from the bond of marriage. A total, absolute divorce of husband and wife,

dissolving the marriage tie, and releasing the parties wholly from their matrimonial

obligations.

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$. T%&E' OF DIVORCE

espite this, in some countries the courts will seldom apply principles of fault, but might

willingly hold a party liable for a breach of a fiduciary duty to his or her spouse (for eample, see

/amily 0ode &ections 123 and ''33 of the 0alifornia /amily 0ode). 4rounds for divorce differs

from state to state in the 5.&. &ome states have no-fault divorce! some states require a

declaration of fault on the part of one partner 2 or both! some state allow either method.

+n most urisdictions, a divorce must be certified (or ordered by a 6udge) by a court of law to

come into effect. The terms of the divorce are usually determined by the courts, though they may

ta$e into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that

the spouses may have agreed to privately (this is not true in the 5nited &tates, where agreements

related to the marriage typically have to be rendered in writing to be enforceable). +n absence of

agreement, a contested divorce may be stressful to the spouses.

+n some other countries,when the spouses agree to divorce and to the terms of the divorce, it can

be certified by a non-udiciary administrative entity. The effect of a divorce is that both parties

are free to marry again.

i. Conteted divorce

0ontested divorces mean that one of several issues are required to be heard by a udge at trial

level7this is more epensive, and the parties will have to pay for a lawyers time and

preparation. +n such a divorce the spouses are not able to agree on issues for instance child

custody and division of marital assets. +n such situations, the litigation process ta$es longer to

conclude.829: The udge controls the outcome of the case. ;ess adversarial approaches to divorce

settlements have recently emerged, such as mediation and collaborative divorce settlement,which negotiate mutually acceptable resolution to conflicts. This principle in the 5nited &tates is

called Alternative ispute s +ndian ;aw of %arriage and ivorce, ?1th dition 233@ (p.B1)

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ii. At(fau"t divorce

Cefore the late 'DE3s, nearly all countries that permitted divorce required proof by one party that

the other party had committed an act incompatible to the marriage. This was termed "grounds"

for divorce (popularly called "fault") and was the only way to terminate a marriage. %ost urisdictions around the world still require such proof of fault. +n the 5nited &tates, no-fault

divorce is available in all B3 states, as is the case with Australia, ew Fealand, 0anada and other

Gestern countries.

/ault-based divorces can be contested! evaluation of offenses may involve allegations

of collusion of the parties (wor$ing together to get the divorce), or condonation (approving the

offense), connivance (tric$ing someone into committing an offense), or provocation by the other

party. 0ontested fault divorces can be epensive, and not usually practical as eventually mostdivorces are granted. 0omparative rectitude is a doctrine used to determine which spouse is more

at fault when both spouses are guilty of breaches.

The grounds for a divorce which a party could raise and need to prove included desertion,

abandonment, cruelty, or adultery. The requirement of proving a ground was revised (and

withdrawn) by the terms of no-fault statutes, which became popular in many Gestern countries

in the late 'DE3s and early 'D13s. +n no-fault urisdictions divorce can be obtained either on a

simple allegation of irreconcilable differences, irretrievable brea$-down, or incompatibilitywith respect to the marriage relationship, or on the ground of de facto separation.

'UMMAR% DIVORCE

A summary (or simple) divorce, available in some urisdictions, is used when spouses meet

certain eligibility requirements, or can agree on $ey issues beforehand.

iii. No(fau"t divorce

&ome Gestern urisdictions have a no-fault divorce system, which requires no allegation or proof

of fault of either party.The barest of assertions suffice. /or eample, in countries that require

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"irretrievable brea$down", the mere assertion that the marriage has bro$en down will satisfy the

udicial officer. +n other urisdictions requiring irreconcilable differences, the mere allegation that

the marriage has been irreparable by these differences is enough for granting a divorce. 0ourts

will not inquire into facts. A "yes" is enough, even if the other party vehemently says "no".

The application can be made by either party or by both parties ointly.

+n urisdictions adopting the no-fault principle in divorce proceedings, some courts may still

ta$e into account the behavior of the parties when dividing property, debts, evaluating custody,

and support7facts that almost always have considerable weight in fault proceedings. +n custody

cases, courts might consider factors that may appear li$e fault based issues but are really related

to protection of the child or children. These may include but are not limited to one or both

parents substance abuse, history of violence, cruelty, instability, neglect or endangerment.

• &hort marriage (less than B years)

• o children (or, in some states, when the spouses have resolved custody and set child

support payments for children of the marriage)

• %inimal or no real property (no mortgage)

• %arital property is under a threshold (around H9B,333 not including vehicles)

• ach spouses personal property is under a threshold (typically the same as marital

property)

iv. Unconteted divorce

+t is estimated that upwards of DBI of divorces in the 5.&. are "uncontested", because the two

parties are able to come to an agreement (either with or without lawyersmediatorscollaborative

counsel) about the property, children, and support issues. Ghen the parties can agree and present

the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. +f the

two parties cannot come to an agreement, they may as$ the court to decide how to split property

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and deal with the custody of their children. Though this may be necessary, the courts would

prefer parties come to an agreement prior to entering court.

Ghere the issues are not comple and the parties are cooperative, a settlement often can be

directly negotiated between them. +n the maority of cases, forms are acquired from their respective state websites and a filing fee is paid to the state. %ost 5.&. states charge between

H'1B and H9B3 for a simple divorce filing. 0ollaborative divorce and mediated divorce are

considered uncontested divorces.

Cecause of additional requirements that must be met, most military divorces are typically

uncontested.

+n the 5nited &tates, many state court systems are eperiencing an increasing proportion of pro

se (i.e., litigants represent themselves without a lawyer) in divorce cases. +n &an iego, for

eample, the number of divorce filings involving at least one self-representing litigant rose from

JEI in 'DD2 to 11I in 2333, and in /lorida from EEI in 'DDD to 19I in 233'. 5rban courts in

0alifornia report that approimately @3I of the new divorce filings are filed pro se.

v. Co""a!orative divorce

0ollaborative divorce is a method for divorcing couples to come to agreement on divorce issues.

+n a collaborative divorce, the parties negotiate an agreed resolution with the assistance

of attorneys who are trained in the collaborative divorce process and in mediation, and often with

the assistance of a neutral financial specialist andor divorce coach(es). The parties are

empowered to ma$e their own decisions based on their own needs and interests, but with

complete information and full professional support.

*nce the collaborative divorce starts, the lawyers are disqualified from representing the parties in

a contested legal proceeding, should the collaborative law process end prematurely. %ost

attorneys who practice collaborative divorce claim that it can be more cost-effective than other

divorce methods, e.g., going to court. pense, they say, has to be loo$ed at under the headings

of financial and emotional. Also, the eperience of wor$ing collaboratively tends to improve

communication between the parties, particularly when collaborative coaches are involved, and

the possibility of going bac$ to court post-separation or divorce is minimiKed. +n the course of

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the collaboration, should the parties not reach any agreements, any documents or information

echanged during the collaborative process cannot be used in court ecept by agreement between

the parties.

either can any of the professional team retained in the course of the collaboration be brought tocourt. ssentially, they have the same protections as in mediation. There are two eceptionsL ')

Any affidavit sworn in the course of the collaboration and vouching documentation attaching to

same and 2) any interim agreement made and signed off in the course of the collaboration or

correspondence relating thereto. The parties are in control of the time they are prepared to give

their collaboration. &ome people need a lot of time to complete, whereas others will reach

solutions in a few meetings. 0ollaborative practitioners offer a tightly orchestrated model with

meetings scheduled in advance every two wee$s, and the range of items to be discussed

apportioned in advance of signing up as well as the more open ended process, the clients decide.

vi. Mediated divorce

ivorce mediation is an alternative to traditional divorce litigation. +n a divorce mediation

session, a mediator facilitates the discussion between the two parties by assisting with

communication and providing information and suggestions to help resolve differences. At the

end of the mediation process, the separating parties have typically developed a tailored divorce

agreement that can be submitted to the court. %ediation sessions can include either partys

attorneys, a neutral attorney, or an attorney-mediator who can inform both parties of their legal

rights, but does not provide advice to either, or can be conducted with the assistance of a

facilitative or transformative mediator without attorneys present at all. &ome mediation

companies, such as evoice, also pair clients with counselors, financial planners and other

professionals to wor$ through common mediation stic$ing points. ivorce mediators may be

attorneys who have eperience in divorce cases, or they may be professional mediators who are

not attorneys, but who have training specifically in the area of family court matters. ivorce

mediation can be significantly less costly, both financially and emotionally, than litigation. The

adherence rate to mediated agreements is much higher than that of adherence to court orders.

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J. T)EORIE' RE*ARDIN* DIVORCE

The provisions relating to divorce is contained in &ec '9 of Mindu %arriage Act, 'DBB.The Act

recogniKes two theories of ivorceL the fault theory and divorce by mutual consent.

5nder the fault theory, marriage can be dissolved only when either party to the marriage had

committed a matrimonial offence. 5nder this theory it is necessary to have a guilty and an

innocent party and only innocent party can see$ the remedy of divorce. Mowever the most

stri$ing feature and drawbac$ is that if both parties have been at fault, there is no remedy available

Another theory of divorce is that of mutual consent. The underlying rationale is that since two persons can marry

by their free will, they should also be allowed to move out of their relationship of their own free will.

Mowever critics of this theory say that this approach will promote immorality as it will lead to

hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of

temperament. &ome of the grounds available under Mindu %arriage Act can be said to

be under the theor y of frus tr at ion by reason of specif ied circu mstances. These

include civi l death ,renouncement of the world etc. +n this article we shall see that how these

theories, owing to change in social circumstances and change in attitude towards the

institution of marriage had failed to provide full ustice in matrimonial cases

+. DIVORCE IN INDIA:

*n an all-+ndia level, the &pecial %arriage Act was passed in 'DBJ, is an inter-religious marriage

law permitting +ndian nationals to marry and divorce irrespective of their religion or faith.

The Mindu %arriage Act, in 'DBB which legally permitted divorce to Mindus and other

communities who chose to marry under these acts. The +ndian ivorce Act '@ED is the law

relating to the divorce of person professing the 0hristian religion. ivorce can be sought by a

husband or wife on grounds including adultery, cruelty, desertion for two years, religious

conversion, mental abnormality, venereal disease, and leprosy. ivorce is also available based on

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mutual consent of both the spouses, which can be filed after at least one year of separated living.

%utual consent divorce can not be appealed, and the law 9mandates a minimum period of si

months (from the time divorce is applied for) for divorce to be granted. Ghile a %uslim husband

can unilaterally bring an end to the marriage by pronouncing talaq, %uslim women must go to

court, claiming any of the grounds provided under the issolution of %uslim %arriage Act.

*fficial figures of divorce rates are not available, but it has been estimated that ' in '33 or

another figure of '' in ',333 marriages in +ndia end up in divorce.

Narious communities are governed by specific marital legislation, distinct to Mindu %arriage

Act, and consequently have their own divorce lawsL

i. The Oarsi %arriage and ivorce Act, 'D9E

ii. The issolution of %uslim %arriage act, 'D9D

iii. The /oreign %arriage Act, 'DED

An amendment to the marriage laws to allow divorce based on "irretrievable brea$down of

marriage" (as alleged by one of the spouses) is under consideration in +ndia. +n 6une 23'3,

the 5nion 0abinet of +ndia approved the %arriage ;aws (Amendment) Cill 23'3, which, if

cleared by Oarliament, would establish "irretrievable brea$down" as a new ground for

divorce.

,. )INDU MARRIA*E ACT- 1++

'ection(1$: Divorce(

(') Any marriage solemniKed, 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 party7

3%ulla Mindu ;aw Nol ++, ?23th dition


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(i) has, after the solemniKation of the marriage, had voluntary seual intercourse with any person

other than his or her spouse! or

(ia) has, after the solemniKation 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 Mindu by conversion to another religion! or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently

from mental disorder of such a $ind and to such an etent that the petitioner cannot reasonably

be epected to live with the respondent.

planation .7+n this clause,7

(a) the epression ?mental disorder means mental illness, arrested or incomplete development

of mind, psychopathic disorder or any other disorder or disability of mind and includes

schiKophrenia!

(b) the epression ?psychopathic disorder means a persistent disorder or disability of mind

(whether or not including sub-normality of intelligence) which results in abnormally aggressive

or seriously irresponsible conduct on the part of the other party, and whether or not it requires or

is susceptible to medical treatment! or

(iv) has been suffering from a virulent and incurable form of leprosy! or

(v) has been suffering from venereal disease in a communicable form! or

(vi) has renounced the world by entering any religious order! or

(vi) has not been heard of as being alive for a period of seven years or more by those persons

who would naturally have heard of it, had that party been alive!

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planation. 7+n this sub-section, the epression ?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 epressions shall be construed

accordingly.

('A) ither party to a marriage, whether solemniKed 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

ground7

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a

period of 8one year: or upwards after the passing of a decree for udicial separation in a

proceeding to which they were parties! or

(ii) that there has been no restitution of conugal rights as between the parties to the marriage for

a period of 8one year: or upwards after the passing of a decree for restitution of conugal 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,7

(i) in the case of any marriage solemniKed 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 solemniKation of the marriage of

the petitionerL

Orovided that in either case the other wife is alive at the time of the presentation of the petition!

or

(ii) that the husband has, since the solemniKation of the marriage, been guilty of rape, sodomy

or8bestiality! or:

(iii) that in a suit under section '@ of the Mindu Adoptions and %aintenance Act, 'DBE (1@ of

'DBE), or in a proceeding under section '2B of the 0ode of 0riminal Orocedure, 'D19 (2 of 'D1J)

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8or under the corresponding section J@@ of the 0ode of 0riminal Orocedure, '@D@ (B of '@D@):, 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! or

(iv) that her marriage (whether consummated or not) was solemniKed 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.

planation. 7This clause applies whether the marriage was solemniKed before or after the

commencement of the %arriage ;aws (Amendment) Act, 'D1E (E@ of 'D1E)P.:

&tate Amendment

5ttar OradeshL

+n its application to Mindus domiciled in 5ttar Oradesh and also when either party to the marriage

was not at the time of marriage a Mindu domiciled in 5ttar Oradesh, in section '97

(i) in sub-section ('), after clause (i) insert (and shall be deemed always to have been inserted)

the following clause, namelyL7

?('a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a

reasonable apprehension in the mind of the petitioner that it will be harmful or inurious for the

petitioner to live with the other party! or, and

(ii) for clause (viii) (since repealed in the principal Act) substitute (and shall be deemed to have

been substituted) following clause, namelyL7

?(viii) has not resumed cohabitation after the passing of a decree for udicial separation against

that party and7

(a) a period of two years has elapsed since the passing of such decree, or

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(b) the case is one of eceptional hardship to the petitioner or of eceptional depravity on the

part of other party! or

/. *ROUND' FOR DIVORCE

a. Adu"ter#

Adultery is etra-marital se. +t is consensual seual intercourse between a married person and a

person of the opposite se not being the other spouse, during the subsistence of the former>s

marriage. Ghere the other party has, after the solemniKation of the marriage, had voluntary

seual intercourse with any person other than his or her spouse, a divorce petition can be filed.

&ection JD1 of the +ndian Oenal 0ode defines adulteryL ?Ghoever has seual intercourse with a

person who is and whom he $nows or has reason to believe to be the wife of another man

without the consent or connivance of that man such intercourse not amounting to the offence of

rape is guilty of the offence of adultery.

+n &ubbaramma v. &araswatiJ, the %adras Migh 0ourt held that ?the unwritten taboos and rules

of social morality in this country and particularly in village areas must necessarily be ta$en into

account. +f an unrelated person is found alone with a young wife after midnight, in her bedroom

in an actual physical utaposition, unless there is some eplanation forthcoming for this which

is compatible with an innocent interpretation, the only interpretation that a court of law can draw

must be that two were committing an act of adultery together.

(&ubbaramma v. &araswati

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+n r. Asho$ =umar Aggarwal v. &mt. Anu


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(iv) The levelling of false allegation by one spouse about the other having alleged illicit relations

with different persons outside wedloc$ amounted to mental cruelty! 6ai ayal v. &ha$untala evi

, A+< 233J el 9D.

(v) %ental disorder for relief under section '9 (') (iii) should be of such a degree that it is

impossible to lead normal marital life or it is unreasonable to epect a person to put up with a

spouse with such condition! C.. Oanduranga&het v. &.. Niayalami , A+< 2339 =arn 9B1

(vi) ue to the criminal complaint filed by the wife, the husband remained in ail for E9 days and

also his father and brother for 23 to 2B days. Therefore, even though the case of cruelty may not

have been proved but as the facts emerging from the record clearly indicate that the living of the

two as husband and wife would not only be difficult but impossible, the court has no alternative

but to grant a decree of divorce! Ooonam 4upta v. 4hanshyam 4upta , A+< 2339 All B'@.

(vii) 5nless the entire genesis of the quarrels in the course of which, one of the spouses holds out

a threat to ta$e his or her life is placed before the court, the very fact that some threat in the

course of a quarrel is held out, cannot be viewed in isolation or construed as mental cruelty to the

other spouse! alini &under v. 4.N. &undar , A+< 2339 =ar @E.

(viii) A husband cannot as$ his wife that he does not li$e her company, but she can or should stay

with other members of the family in matrimonial home. &uch an attitude is cruelty in itself on the

part of the husband! #udhishter &ingh v. &arita , A+< 2332


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husbandwife that it will be harmful or inurious for him or her to live with the other party. The

epression ?persistently means continue firmly or obstinately and the epression ?repeatedly

means to say or do over again! Nimlesh v. Ora$ash 0hand &harma, A+< 'DD2 All 2E'.

+n &hobha


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+n


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efense of insanity is not available on that the offending spouse is not capable of $nowing what

he is doing if the conduct is held to be cruelty regardless of motive or intention to be cruel.

+nsanity, therefore, should not bar the relief claimed by the wife! Trimaba$ arayan Chagwat v.

=umudini T. Chagwat , A+< 'DE1 Com @3'9.

+n Marmanit =aur v. Chupinder &ingh 4ill,'2E the appellant was suffering from mental disorder

(&chiKophrenia) since before her marriage! that this fact was not disclosed to the respondent! that

according to the medical advice the disease is incurable and she might become a danger to the

husband and also to the child. Therefore the court granted divorce.

+n &ona v. =arambir, a board of doctors gave the opinion that the wife suffered from moderate

range of mental retardation! that her mental unsoundness was incurable! she could not discharge

her marital obligations! she gave totally incorrect and irrational answers to the questions posed to

her. +t was held that her case fell under &ection '9 (') (iii) of the Mindu %arriage Act, 'DBB.

+ntention to bring cohabitation permanently to an end

Ghere there is a brea$down of the marriage, this in itself should be a cause for which divorce

should be available under law. +t would then be immaterial to inquire as to which of the two

parties is at fault! &wara 4arg v. =.%. 4arg , A+< 'D1@ el 2DE.

0. 'CO&E OF 'ECTION 1$ OF )INDU MARRIA*E ACT- 1++

&ection '9 does not envisage luury. The provisions are meant to preserve the meaning of life.

Oersonal laws may be different from laws of equity nonetheless they are based on equitable

udicious perception for appreciation of facts and circumstances in their light!


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/rivolous and veatious litigation instituted and fought under the pressure of some family

members cannot be used as a ground to contend that the marriage has irretrievably bro$en down

and the marriage is, for all practical purposes, dead. Acceptance of such argument will mean, that

in all matters wherever matrimonial litigation went on for five to ten years, the divorce must

follow. The marriage cannot be dissolved on this solitary ground! eeta =irit esai v. Cino

&amuel 4eorge , A+< 2339

'ection(1$A A"ternate re"ief in divorce roceeding

'9A. Alternate relief in divorce proceedings. 7+n any proceeding under this Act, on a petition

for dissolution of marriage by a decree of divorce, ecept in so far as the petition is founded on

the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (') of section '9, the court

may, if it considers it ust so to do having regard to the circumstances of the case, pass instead a

decree for udicial separation.

Crea$down theory +t would not be very reasonable to thin$ that the relief which is available to

the spouse against whom a decree for restitution has been passed, should be denied to the one

who does not insist on compliance with the decree passed in his or her favour. +n order to be a

Qwrong> within the meaning of section 29(')(a) the conduct alleged has to be something more

than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough

to ustify denial of the relief to which the husband or the wife is otherwise entitled! harmendra

=umar v. 5sha =umar , A+< 'D11 &0 22'@'J.

'ection(1$3 Divorce !# 4utua" conent (

'9C. ivorce by mutual consent. 7(') &ubect to the provisions of this Act

1(harmendra =umar v. 5sha=umar , A+< 'D11 &0 22'@.

1+


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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 solemniKed before or after

the commencement of the %arriage ;aws (Amendment) Act, 'D1E (E@ of 'D1E) P, 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) *n the motion of both the parties made not earlier than si months after the date of the

presentation of the petition referred to in sub-section (') 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 ma$ing such inquiry as it thin$s fit, that a marriage has been

solemniKed 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.

&eriod of i5 4ont6 not 4andator#

As provided in sub-section (2) of section '9C the period of si months cannot be ta$en as

mandatory, because if it is mandatory the very purpose of liberalised concept of divorce by

mutual consent will be frustrated, especially when the parties have live separately and there was

no chance of reunion! =. Thiruvengadam v. il , A+< 233@ %ad 1E.

Tranitiona" eriod

(i) The period of E to '@ months provided in section '9C is a period of interregnum which is

intended to give time and opportunity to the parties to reflect on their move.

+n this transitional period the parties or either of them may have second thoughts! &uman v.

&urendra =umar, A+< 2339


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not be living as husband and wife. The parties should have no desire to perform marital

obligations! &ureshta evi v. *m Ora$ash, A+< 'DD2 &0 'D3J'B.

(iii) The period of si to eighteen months time is given in divorce by mutual consent as to give

time and opportunity to the parties to reflect on their move and see$ advice from relations and

friends. %utual consent should continue till the divorce decree is passed. The court should be

satisfied about the bona fides and consent of the parties. +f there is no consent at the time of

enquiry the court gets no urisdiction to ma$e a decree for divorce. +f the court is held to have the

power to ma$e a decree solely based on the initial petition, it negates the whole idea of

mutuality. There can be unilateral withdrawal of consent. Meld, that since consent of the wife

was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal,

of consent! &ureshta evi v. *m Ora$ash, A+< 'DD2 &0 'D3J.

+n =iritbhai4irdharbhai Oatel v. Orafulaben=iritbhai Oatel,'D' the 4uarat Migh 0ourt held that,

the epression ?have been living separately under &ub-&ection (') of &ection '9-C of the Act

does not necessarily mean that the spouses has to live in different places. Ghat the epression

would seem to require is that they must be living apart, viK., not living with each other as

Qhusband> and Qwife>. %erely going abroad ointly and staying under one roof is not living as

husband and wife. +t can not be ground to refuse divorce when marriage has not been

consummated for more than one year.

+n +ndramal v.


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'ection 17 No etition for divorce to !e reented 8it6in t6ree #ear of 4arriage (

(') otwithstanding anything contained in this Act, it shall not be competent for any court to

entertain any petition for dissolution of a marriage by a decree of divorce, 8unless at the date of

the presentation of the petition one year has elapsed: since the date of the marriageL

Orovided that the court may, upon application made to it in accordance with such rules as may be

made by the Migh 0ourt in that behalf, allow a petition to be presented 8before one year has

elapsed: since the date of the marriage on the ground that the case is one of eceptional hardship

to the petitioner or of eceptional depravity on the part of the respondent, but if it appears to the

court at the hearing of the petition that the petitioner obtained leave to present the petition by any

misrepresentation or concealment of the nature of the case, the court may, if it pronounces a

decree, do so subect to the condition that the decree shall not have effect until after the 8epiry

of one year: from the date of the marriage or may dismiss the petition without preudice to any

petition which may be brought after theJ8epiration of the said one year: upon the same or

substantially the same facts as those alleged in support of the petition so dismissed.

(2) +n disposing of any application under this section for leave to present a petition for divorce

before the 8epiration of one year: from the date of the marriage, the court shall have regard to

the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the epiration of the marriage.

22


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. 96at t6e difference !et8een a divorce- a "ega" earation- and

an Annu"4ent;

Divorce:

issolution of marriage is 0onnecticut>s legal term for a divorce. +t happens when two people

have been legally married, and one or both of them goes through the court process to have the

marriage ended. *rders about alimony, division of property, name changes, and child custody,

visitation, and support can all be made in a divorce.


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11.


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Reference

Statutes referred Mindu %arriage Act, 'DBB

3oo= referred

i. r. iwan Oaras, %odern Mindu ;aw.ii. =umud esai>s +ndian ;aw of %arriage and ivorce, 1th dition 233@

iii. %ullaMindu;aw Nol ++, 23th dition

hindu law divorce

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