Category Archive Divorce Law Guide

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Divorce with a Foreign National

Divorce with a Foreign National

Legality of foreign divorces in India has always been clouded with conflicting opinions and judgments. However, there are a few basic things that one needs to know while filing for divorce with a foreign/NRI spouse.

A couple married in India as per Indian Law take their personal law with them. Hence, even when the couple decides to settle down outside India, their marriage, and therefore their divorce, will still be governed by Indian law.
 

Validity of Foreign Decree in India

Section 13 of the Civil Procedure Code lays down that a foreign decree is conclusive in India under normal circumstances. This general principle of law is based on the principle of res-judicata, which basically means that a dispute that has been adjudicated upon in court should not be re-agitated. The same is done in order to prevent wastage of judicial resources. Hence, under normal circumstances, a decree of divorce granted by a foreign court of law will also be valid in India.

However, certain exceptions to this condition of ‘normal circumstances’ have been carved out and the same are as follows:
 

Grant of divorce by a Court not authorised by Indian Law:

  • · As per Indian law, the courts that usually have jurisdiction to grant divorce are-
  • · Where the marriage was solemnized
  • · Where the couple last resided as husband and wife
  • · Where the person contesting the divorce resides
     

When the decree is not based on merits:

This implies that the court which passed the divorce decree failed to take into account submissions of both parties. In most cases, such a problem arises when one party leaves the country and comes back to India, and the divorce is granted in the absence of that party, i.e. ex parte decree.

Exception to exception: In such a case, if it is established that the party that left the country did so only to avoid the divorce proceedings, the divorce would be valid as no party should be allowed to commit such a fraud on court.
 

Ground of divorce not valid under Indian law:

Cruelty, Adultery, Desertion, Impotency are broadly the grounds on which Indian courts allow divorce. If a foreign court grants divorce on any ground outside of these, and the same is not a valid ground in India, the divorce would not be valid.
 

Decree awarded on the basis of ‘irreconcilable differences/irretrievable breakdown of marriage:

Since these two grounds are recognised in India, a divorce decree granted on these two grounds is not binding in India.
 

Proceedings are against Principles of Natural Justice:

Any proceeding that is not just and fair, i.e. both parties have not been given and equal and fair opportunity to present their case, is said to be violative of principles of natural justice. Any divorce granted under such circumstances will not be valid.
 

Decree obtained by fraud:

Any decree obtained by misrepresentation of facts or fraud will not be valid in India.
 

Important Tips:

If the foreign divorce decree does not fall under any of these exceptions and is valid in India, there is not mandatory requirement to validate it. However, it is advisable to do the same in consideration of future prospects and to avoid hassles.

If the decree falls within the given exceptions, the burden of proof to prove that the decree is invalid falls on the person claiming it. Such a decree can be challenged by filing a suit for declaration of marital status and invalidity of the foreign decree.

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False Cases filed by Wife

In the past few years, the trend of filing false cases and implicating men by exploiting women-oriented laws has released exponentially. Here is a list of things that one must keep in mind to steer clear of such false charges.

  • FIGHT INTERIM MAINTENANCE CASES: The golden rule is to put everything on hold and fight the interim maintenance case. Divorce cases are inordinately delayed in India, increasing the burden on husbands to provide for interim maintenance while the case is pending. The longer the case is delayed for, the higher the frustration level in husbands as they are expected to cough up maintenance money even for that period. Moreover, since the wife is getting a monthly maintenance, chances are she is least bothered about rushing the process of divorce. The best strategy in such a scenario is to reduce interim maintenance to a minimum amount at the initial stage only.


ADVANTAGE OF LOW INTERIM MAINTENANCE:

  • Getting low monthly interim maintenance creates a psychological pressure and crushes the hopes of a wife to get a big lump-sum amount post-divorce.
  • In cases where the divorce is inordinately delayed, the husband can still afford to pay the wife a low interim maintenance without him exhausting his finances.
  • Low maintenance on behalf of the husband psychologically frees him and helps him focus on more important issues like collecting more evidence to help his case.

COLLECT PROOF REGARDING WIFE’S SOCIAL STATUS: Often repeated statement by husbands is “my wife works but I don’t have proof”. Hence, the top-most priority becomes to collect proof regarding wife’s working, income, job profile, etc.

         The following are some handy tips to collect proof:

  • Check her social media profiles like Facebook and LinkedIn for information related to her workplace
  • Get hold of a business card that shows her name, company and designation
  • Income Tax Return is the best proof for income
  • Try to get details of the EPF (employee provident fund) from the workplace
  • Try getting in touch with someone from the wife’s workplace; try not to do this overtly


CORROBORATE YOUR STORY WITH EVIDENCE:

It is important to form a chain of events along with proof that has been collected by you. Follow the given steps to concretize your evidence:

  • Write complete details from the time of the engagement till the time the wife left, from your marriage to honeymoon to other incidents where the wife may have left the matrimonial home. Document this information.
  • Try to get in as many details as possible, even the smallest ones, in order to assist the lawyer in filing a strong abjection or divorce case.
  • Make a list of all the important out of town visits, phone calls, family functions, emails that may have been exchanges, etc.

EVIDENCE: Evidence will include every documents, picture, bills, etc. that will help your lawyer counter claims made by your wife.

  • Collect all photographs of wedding and honeymoon and other social functions which depict that the couple was in a natural, healthy relationship. This will help counter claims of domestic abuse and violence.
  • Collect family videos depicting your relationship
  • Get copies of your bank and credit card statements
  • Keep a record of all the messages sent by your wife to you; such information may be incriminating in nature
  • Once the case has been filed, record all phone conversations

The above mentioned steps can help you make a strong case and counter all false claims made by your wife against you.

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Child Custody Rights in a Divorce

The most traumatic part of a divorce is inevitably the custody of the child. Even though both the parents continue to be the natural guardian of the child, only one of them gets the physical custody. Below are some pointers that will give you a clear understanding regarding the custody of children after a divorce.

  • PRINCIPLE: The one guiding non-negotiable principle which decides who will get the custody of the child after the divorce is ‘best interest and welfare of the child.’ Best interest includes everything like the child’s emotional, educational, social and medical needs. This principle is also applicable for divorce with mutual consent.
  • RIGHT OVER THE CHILD: Even though the custodial parent is the primary caretaker responsible for the emotional, medical and educational needs of the child, the non-custodial parent will not lose the right over the child and will have right of access to see the child.
  • DETERMINING FACTORS: Financial capability is not the foremost criteria for granting custody to a parent; what is considered in the capacity to provide a safe and secure environment. Since the mother is the preferred custodial parent when the child is of tender age, a non-working mother will not be disqualified and the earning father will be asked to provide child support. Once a child attains a discernible age, custody and access issues are decided as per her/his wishes, and the belief that the father will have uncontested right is wrong and displaced.
  • JOINT CUSTODY: In this case, both the parents have legal custody of the child, but only one will have the physical custody and be the primary caretaker. Even though the concept of joint custody does not exist in statues, it gives the parties a larger negotiating space.
  • ENTITLEMENT OF NON-CUSTODIAL PARENT: The non-custodial parent may be entitled to any or all of the following:
    • Access could be daily, weekly, fortnightly or monthly or free access with no schedule;
    • It could be day access or overnight access;
    • There could be gradual increase including weekend and/or vacations;
    • Could include the right to be a part of school events.

         This list, however, is not exhaustive and depends entirely on the relationship of the estranged parents.

  • DUTY TO MAINTAIN: Every right comes with a corresponding duty. The highlights of custodial duties would be the following:
    • Duty to provide and maintain
    • Duty to provide for education; this could be a one-time lump-sum payment or staggered payment depending on different stages of the child’s educational life
    • Duty to provide for sufficient day-to-day expenses
    • Duty to maintain or improve the child’s standard of living
  • STATUS OF PROPERTY: Property in the name of the child with either parent can be given as lump-sum and rent from the said property can be used for monthly expenditure. Long-term investments like insurance and educational policies should be factored in. The court is parenspatriae, the ultimate guardian of the child and her/his property. The child’s property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be ‘the best interest of the child’.
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Dowry Laws in India

LEGALITY : Dowry is illegal in India under the Dowry Prohibition Act 1961.

OFENDER : Under the said Act, both taking and giving of dowry is punishable.

PUNISHMENT : The punishment for violating the law is 5 yrs imprisonment and Rs.15000 fine (or the value of dowry given, whichever is more)

SCOPE :

  • Any demand made by the groom/his family which involves a direct/indirect deal with the family is considered as dowry.
  • Demand can be in form of cash, property or any other favours.
  • Demand can be made before, during or after the wedding.

HOW TO IDENTIFY A DOWRY DEMAND:

  • Includes anything that the bride’s side does not offer on its own
  • Includes anything that the groom’s side may ask for directly, or indirectly by dropping hints
  • Any demand which makes the bride’s side compelled to fulfil it
  • Giving of anything as a pre-condition to marriage, without which the bride’s side anticipates that the marriage might be called off
  • Negotiation for a lesser deal from the groom’s side when the bride’s side is unable to fulfil the actual demand/’real deal’
  • Making the bride’s family fulfil demands as compensation for marrying their daughter after the wedding

WHEN IS A GIFT NOT DOWRY :

In the following scenarios, the bride’s side will not be violating any dowry laws:

  • Gifts of their own choosing by the bride’s parents to the newly married couple without being pressured or asked
  • List of such gift/s should be drawn up by their lawyer along with their cost and a declaration that that they were given to the couple out of their own choosing
  • The groom’s family should have a copy of the said list
  • Any gift for the couple will belong to the both of them

WHAT IS STREEDHAN?

  • Anything gifted by the bride’s parents to her and not to the groom is the sole property of the bride and is called ‘streedhan’ (the wife’s property)
  • Streedhan can be given before, during or after the wedding
  • Streedhan includes property inherited by the bride
  • Also includes gifts given in cash or kind by her own family and/or husband’s family
  • Bride is the absolute owner of streedhan
  • Husband and his family have no right over it
  • In case she leaves the marriage, she will get her streedhan back
  • In case of unforeseen death of the bride, streedhan is returned to the bride’s family.
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False Dowry 498a Complaint Case

Fighting against False Dowry and Harassment Case

False dowry and harassment cases filed by women on in laws and husbands are being heavily misused. The government is following steps to amend it to make justifiable to all. The number of false cases being filed against the husband and his family has been rising and has come in notice of the government.

Introducing penalty and punishment for the misuse of the act is an action that the government is likely to take. In order to curb the misuse of this act, a judgment passed by the Supreme Court on the IPC 498A states that the police must give reasons before arresting the accused.

How to protect yourself from false 498A case

There are 2 options available if your wife or in laws have filed or are threatening to file a false 498A dowry harassment complaint case against you and your family.

First, if your wife is staying with you, we would advice you to make call recordings or video recording of her making such threats. These recordings will make strong evidence if and when the case goes into trial in the court.

Second, if she has left your home then you can file a written complaint in the local police station stating that she left your house. If the case has already been filed we suggest you to hire a competent advocate to defend yourself and your family in the court.

You also may even want to file an anticipatory bail for yourself and your family if you suspect that a criminal complaint can be filed against you.

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Maintenance & Domestic Violence Protection in India

With women being victimized because of domestic violence, the Government of India is actively spreading awareness about the same and has thus passed the Protection of Women from Domestic Violence Act 2005. This is an Act of the Parliament of India which aims to protect women from domestic violence which came into action on October 26, 2006.

The Domestic Violence Act or D.V Act has been quite successful as a lot of women have stepped forward to file criminal cases against the perpetrators and many of them even got speedy justice.

The scope of the law

Over the years, the scope of the Domestic Violence Act has widened up. For instance, whereas the primary aim of law was to provide protection to the wife or the female live-in partner from domestic violence at the hands of the husband or the male live-in partner or his relatives, the latest decision by the Madras High Court says that complaints under the Protection of Women from Domestic Violence Act, 2005, need not be made only against men.

The legislation does not only insulate women from being accused of offences mentioned under it but also enables the protection for a woman against another woman like sisters or mothers-in-law.

The Domestic Violence Act covers actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic and according to the law harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition. This part is in addition to the Dowry Prohibition Act which is already available for women. Thus, the victims of dowry harassment have been given additional protection in the DVA.
 

Widening the scope of domestic violence

The scope of ‘domestic violence’ has been widened to great extent in the Act as it includes actual abuse or the threat of abuse that is physical, sexual, verbal, emotional and economic. Threatening the woman by not giving her food or goods of day to day requirements too can amount to domestic violence. Also, if the man is harassing the woman for dowry or demands the same from her relatives, it would also amount to domestic violence.

The Protection from DV Act is applicable for those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household. The cohabitation may be consanguinity, marriage or a relationship in the nature of marriage, or adoption.

The DVA 2005 Assures Right to Secure Housing

When forced from their in-laws’ house and their inability to claim property rights at their parental property, the women faced a lot of trouble, especially before the amendment of the Hindu Succession Act, 2005. Now, not just the Hindu Succession Act ensures women a part in the ancestral property but the DVA 2005 also ensures the woman’s right to a secure housing as it provides for the woman’s right to reside in the matrimonial or shared household.

Interestingly, the right to reside in matrimonial or shared household is going to exist whether or not she has any title or rights in the household.

The Court Can Pass Prohibition Order against Abuser

Punishing the abuser and also passing a relief to the victim by the way of protection orders that prevent the abuser from aiding or committing an act of domestic violence or any other specified act is what is offered to any woman falling in the ambit. The prohibition order may stop the abuser from entering a workplace or any other place frequented by the victim. The court may also pass prohibition order to stop the abuser from attempting to communicate with the abused, isolating any assets used by the parties and causing violence to the abused, her relatives and others who provide her assistance from the domestic violence.

Breach of Protection Order

When the court passes the prohibition order, and the abuser breaches it, then, it becomes a non-bailable offence punishable with imprisonment for a term which may extend to one year or with fine which may extend to twenty thousand rupees or with both.

Thus, the Domestic Violence Act is not just about protecting women from domestic violence but also about providing them with the right to shelter and right to live with dignity which has been ensured to them under the Article 21 of the constitution of India.

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Divorce by Mutual Consent in India

Divorce by Mutual Consent | Law House | www.lawhousekolkata.com
How to get divorce by mutual consent in India?

What is Mutual Divorce?

Divorce by Mutual Consent or Mutual Divorce is when both husband and wife mutually agree that they cannot live together anymore and that the best solution being Divorce, they would present a Mutual Divorce petition jointly before the honourable court, without putting forth any allegations against each other.

For instance, if the husband and wife have been living separately for a period of one year or more and are further unable to live together, and both have mutually agreed that the marriage has totally collapsed, they can be granted the divorce.

Research says that one of the fastest ways of being granted a divorce in India is through mutual consent as other options linger on for too long. 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.

Requirements to be complied with for a Mutual Divorce:

  1. The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation. But it does not seem necessary for the court to go into that matter, provided the condition of separate living under the same roof of the matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not to travel beyond the statutory condition of its jurisdiction.
  2. The parties have failed for any reason whatsoever to live together. In other’ words, no reconciliation or adjustment is possible between them.
  3. The parties have freely consented to the agreement of dissolution of marriage.
  4. The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred.

Process/Steps involved in Mutual Divorce:

There are several steps involved to get a divorce by mutual consent. The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. There are also two motions involved in this procedure. The following are the important steps:
 

  1. Joint Petition: The first step is the filing of a joint petition in the respective family court. This joint petition is to be signed by both parties. The divorce petition contains a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce. This statement also has the agreement to split the assets, custody of children, etc.
  2. Appearance of Parties: The second step of the procedure is the appearance of both the parties to the divorce in the family court after the petition has been filed. The court fixes this date and the parties appear along with their counsels.
  3. Scrutiny of the Petition by Court: The court thereafter scrutinizes the petition and the documents filed by the parties. When and if the court is satisfied, it orders for the recording of statements of the parties on oath. In some cases, the court attempts to bring about reconciliation between the parties. When there is a failure to reconcile the parties, the divorce matter is proceeded with.
  4. Recording of statement and passing of the order on First Motion: After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. After this, a 6 month period is given is given to the parties, after which the parties are required to file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion.
  5. Second Motion: After 6 months of the first motion or by the end of the reconciliation period, if both parties still don’t agree to come together, then the parties may appear for the second motion for the final hearing. This also involves the parties appearing and recording of statements before the court. In a recent judgement, the Supreme Court has categorically stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court. If the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.
  6. Decision of the Court: The most important requirement for a grant of divorce by mutual consent is the free consent of both the parties. In other words, unless there is complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce and now the divorce becomes final.

Advantages of Mutual Divorce

Taking a mutual consent divorce removes unnecessary quarrels and saves a lot of time and monetary resources. With the ever-rising number of applications being filed for divorce, mutual consent divorce is one of the best-given options.
 

Where to file the Divorce case? 

The parties are required to file for divorce in the family court of the city where both the partners lived together for the last time, i.e. their matrimonial home. It can even be presented in the court of the city/place where the marriage was solemnized.


What information/documents are required for Mutual Divorce?

The following documents would be required for a divorce by mutual consent:

  1. Address proof of husband
  2. Address proof of wife
  3. Details of professions and present earnings
  4. Certificate of Marriage
  5. Family background information
  6. Photographs of marriage between husband and wife
  7. Evidence to prove that the husband and wife have been living separately for more than one year
  8. Evidence proving failed attempts of reconciliation
  9. Income tax statements
  10. Details of property and assets of the parties

Certain other documents may also be required, depending upon the facts and circumstances of the particular case.
 

How long does it take to get a decree of Divorce by Mutual Consent in India?

The average timeline of the entire process, from the date of filing till getting the divorce decree can be around six months to two years. However, it can take longer, depending upon the nature of the particular case. No set time can be stated as each case is different and independent of the other. Keeping that in mind, however, mutual divorce has been seen to be the least time taking as compared to other procedures of divorce.

Can Mutual Divorce decree be obtained through notary?

No, mutual divorce cannot be granted through notary in India. A valid decree of divorce can only be granted by the family court of appropriate jurisdiction.
 

Can a party withdraw the petition for Divorce? 

During the six month period or time gap between first motion and the second motion, either of the parties can withdraw by filing an application before the court, stating that they do not intend to get a divorce through mutual consent. In such a circumstance the other party would only have one option -to file for contested divorce. A contested divorce can be filed on any of the following grounds like cruelty, desertion, voluntary sexual inter-course with another person, unsound mind, conversion of religion by other spouse, leprosy, venereal disease, a spouse having renounced the world or being missing for a period of more than 7 months.  
 

Can a party remarry without getting a Divorce? 

To remarry, getting a divorce is a pre-condition. If you remarry without getting a divorce then it is a punishable offence with 7 years imprisonment. 
 

Is appearance of parties necessary for obtaining Divorce decree?

In most cases, parties are required to be present before the court during first and second motion. Only in rare cases, camera proceedings may be allowed where the courts are convinced that the attendance of the party in question cannot be arranged by all possible means and it is totally on the discretion of the court to allow it.  
 

How can NRIs get a Mutual Divorce?

In case of divorce of an NRI couple, they can file a divorce petition in a foreign country under the laws where the party currently resides. It is imperative that the decree by foreign courts should not be inconclusive of section 13 of the Civil Procedure Code, 1908. Infact, if the divorce petition is filed in India where one of the parties is staying abroad then the court may permit for camera proceedings.  
 

What happens when mutual consent is obtained by force or coercion?

It is the duty of the court to examine that the consent is not viciously obtained. If the court fails to determine whether the consent was given freely or not, then such a divorce decree cannot be regarded as a decree by mutual consent. In case the consent for mutual divorce is obtained through force or coercion, the aggrieved party can file an appeal to strike down such a decree. 
 

Is the statutory cooling-off period for six months mandatory?

No, the statutory cooling off period for six months is not mandatory. If the court deems fit, then it can waive off this cooling period. This implies that if the couple has mutually decided to dissolve their marriage, they can request the court to expedite the process and not wait for another six months.
 

How is the issue of maintenance tackled in case of a Mutual Divorce? 

Alimony is an important aspect in matters of divorce proceedings. In cases of mutual divorce, the divorcing husband and the wife are required to agree on the sum of alimony or maintenance which will be given either by the husband to wife or wife to the husband as the case may be.

While deciding the amount of alimony, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration.

In case the parties mutually agree that there is no requirement to pay any alimony, it is not compulsory for the parties to decide the quantum to be paid. No maximum or minimum amount of alimony has been set by law, hence, it is upon the parties to agree upon a particular sum. It is generally decided as a gross sum, or a monthly amount, not exceeding the life of the receiver, giving regard to the payer’s own property and income.

How is child custody and support decided in Divorce matters?

While obtaining a divorce through mutual consent, the parties are required to settle the issue of child custody. Custody of the child implies as to who the child will physically reside with. The custodial parent would be the primary caretaker and would thereby be responsible for the medical, educational and emotional needs of the child.

Both the parents are equally competent to take the custody of the children. However, in this kind of divorce, the parties need to mutually agree upon matters such as – who would have the physical custody of the child, the duration of visitation rights, the interim custody, how the child’s living and educational costs will be met, etc. The spouse can even opt for joint custody. Under this arrangement, one of the parents would be the primary caretaker and thus have the physical custody of the child, and both of them would have the legal custody of the child.

The court regards the interest and welfare of the child as paramount considerations in matters of child custody. The court is the parens patriae i.e. the ultimate guardian of the child and hence the minor child’s property/income is protected by law. Moreover, the terms of custody, access and child support can be changed in case the circumstances are altered, or in the best interest of the child.

 

Is Divorce law different for different religions in India?

Yes, like marriage laws, divorce laws are also different for different religions. Divorce for Hindus is covered by Hindu Marriage Act, 1955. This includes Sikhs, Jains and Buddhists. Christians are governed by Indian Divorce Act, 1869. Muslims are governed by Personal laws of divorce and Dissolution of Marriage Act, 1939 and the Muslim Women ( Protection of  Rights on Divorce) Act, 1986. For inter-religion marriages, there is a secular law, Special Marriage Act, 1954. The following list explains mutual divorce in different religions: 
 

  1. Mutual Divorce under Muslim Law :Under Muslim Law, there are two categories of divorce – ‘judicial’ and extra-judicial. Mutual Divorce under Muslim Law falls under the extra-judicial category. There are two kinds of divorce by mutual agreement called ‘khula’ and ‘mubarat’. Under both these kinds of mutual divorce, the woman is to part with her ‘dower’ or some other property.‘Khula’ under Muslim Law is said to be an agreement between the husband and wife for dissolving a union in lieu of compensation (part of her property) that is paid by the wife to her husband. Even though this consideration is important, the actual delivery of property is not a precondition for the validity of the divorce under ‘khula’ system. An irrevocable divorce takes place once the husband gives his consent, and the husband has no right to cancel the ‘khul’ on the ground of consideration not having been paid.Under the ‘mubarat’ form of mutual divorce, both the parties must desire divorce, and thus the proposal for it can emanate from either wife or husband. Both these parties should be willing to separate. Once the offer is made, the other party must accept it, and once it is accepted, the divorce becomes irrevocable. Under the Sunnis, once the husband and wife enter into a ‘mubarat’, all the rights and obligations of the parties come to an end. In Shias, a proper form is imposed, i.e. the word ‘mubarat’ should be followed by the word ‘talaq’ for the divorce to take place. These words should be uttered in Arabic, and the intention to end the marriage should be expressed clearly.In both ‘Khula’ and ‘Mubarat’, the wife shall go through the ‘iddat’ period and in both, the divorce is an act of the parties and no intervention by the court is required.
     
  2. Mutual Divorce under Christian Law : Divorce for Christians in India is provided for under the Divorce Act, 1869. Section 10 A of the Act gives the provision for dissolution of marriage by mutual consent. A petition for mutual divorce can be presented by both the parties to the appropriate district court. The petition should be presented upon the grounds that the parties have been living separately for more than a year and that it is not possible for them to cohabit together and that the decision to dissolve the marriage has been mutually agreed upon.This petition can be withdrawn after the expiry of 6 months from the date of the presentation of the petition, but before a lapse of 18 months from this date.
     
  3. Mutual Divorce under Parsi Law :Provisions for marriage and divorce for Parsis in India are given in the Parsi Marriage and Divorce Act, 1936. Divorce by Mutual Consent is given under Section 32B. It states that both the husband and wife can together file for mutual divorce upon the ground that they have been living separately for a period of one year or more, and that they have not been able to live together. They have to mention that they mutually agree that the marriage should be dissolved. However, a suit under this section cannot be filed, unless one year has elapsed since the date of the marriage.


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Restitution of Conjugal Rights in Hindu Marriage Act

Restitution of Conjugal Rights in Hindu Marriage Act

The Hindu Marriage Act, 1955 provides a remedy under Section 9 in the form of restitution of conjugal rights if someone’s spouse has left without giving any reasonable grounds. Section 9 of the HMA reads that when either the husband or the wife has, without a reasonable excuse, withdrawn from the society of the other, the distressed party may apply for restitution of conjugal rights.

The party in distress can file a petition to the respective district court after which the court records the statements of both parties made in the petitions and if the court finds no legal ground as to why the application should not be granted, the judge may decree restitution of conjugal rights in the aggrieved’s favor.

Three essential conditions for Section 9 of HMA

Firstly, one party must have withdrawn from the society of the other; secondly, the withdrawal must be without any reasonable reason, and thirdly, the aggrieved party applies for the restitution of conjugal rights.

Once these conditions are fulfilled, the district court may decree of restitution of conjugal rights to bring about cohabitation between the estranged parties.

If the court is not convinced and finds the petitioner guilty then the decree of restitution of conjugal rights is not granted.

If the parties are not following the decree for cohabitation after the passing of the decree, continuously for about a year, it becomes a ground for divorce under Section 13.

Reasonable grounds on which petition for Restitution of Conjugal Rights can be rejected:

First, if the respondent has a ground on which he or she can claim any matrimonial relief;

Second, if the petitioner is guilty of any matrimonial misconduct;

Third, if the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him; for instance, husband’s neglect of his wife or the constant demand for dowry, etc. are some reasonable ground for the wife not to join the company of her husband.

The burden of proof under Section 9 of the HMA

The burden of proof is on the aggrieved/petitioner who needs to prove that the respondent has withdrawn from his society. Once that burden is discharged by the petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.

Bydeb

How to Divorce my Husband / Wife

Filing for divorce can be an overwhelming process, especially since it involves the future of many lives. It’s important to conduct research to make sure the procedure happens smoothly and you’re satisfied with the outcome. 

The article has been written for Hindu marriages covered by Hindu Marriage Act 1955.

In case things are not too good between you and your spouse, and you or both of you have decided to part ways legally, we list down the options you have to file for a Divorce under the Hindu Marriage Act 1955.
 

If both you and your spouse are willing for a Divorce:

Mutual Consent Divorce between Hindu Couple is governed by TheHindu Marriage Act, 1955, under Section 13B.

Which states that.- 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, 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.

Secondly, 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 18 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 decree.
 

If you or your spouse are willing for a Divorce but the other person does not want a Divorce:

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 your case for divorcing your partner.
 

You can file for divorce:

a) If he/she 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;

b) If he/she has after the marriage had voluntary sexual intercourse with any other person;

c) If he/she is treating you cruelly;

d) If he/she has deserted you for a continuous period of not less than two years immediately preceding the presentation of the petition;

e) If he/she has ceased to be a Hindu by conversion to another religion;

f) If he/she 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;

g) If your husband/wife is suffering from a virulent and incurable form of leprosy;

h) If he/she is suffering from venereal disease in a communicable form;

i) If your husband/wife has renounced the world by entering any religious order;
 

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 a 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.
 

Where to File

The divorce petition may be filed at the family court which has jurisdiction over your matrimonial home, i.e. the home where you stay / last stayed as husband and wife after your wedding or at the family court at the place where the marriage had taken place. Women can file the petition either in the family court that has jurisdiction over the place the matrimonial home is located or the family court of the locality where she is residing at the time of filing of the petition.
 

Decide the Outcome you want to have from the Divorce

Divorce can take many forms. In some cases, it is amicable and relatively easy to bring about, but it can also get very complicated. What kind of divorce will bring about the results you want? Consider the following variables:

– Do you own property or other assets with your spouse that you plan to divide?

– Do you have children with your spouse, and will you be seeking custody?

– If you are seeking custody, will you also seek child support from your spouse?

– Consider creating a divorce mission statement so that you can clearly outline your goals and desires.
 

Finding the Right Lawyer to file your Divorce Petition

Irrespective of the kind of divorce you wish to proceed with (Mutual or Contested), it’s important to have a competent lawyer represent/guide you with the nuances of the divorce procedure.
Schedule a consultation with an experienced divorce lawyer. Even seemingly straightforward divorces can end up getting complicated, and a divorce lawyer can answer specific questions about your circumstances. Even if you end up representing yourself, a one-hour consultation with a lawyer will help you prepare better.

– Be prepared to talk about your goals and desired outcome.

– Bring the documentation you gathered on your assets and debts.

– Have a list of questions that are specific to your situation ready to ask the lawyer.

Bydeb

Contested Divorce in India

If one of the spouse is not wiling to give a divorce to the other spouse, then it is known as contested divorce.

For filing of the contested divorce a divorce petition is to be drafted and presented in court. The contested divorce is only granted on certain grounds which are mentioned under Section 13 of the Hindu Marriage Act.

Some of the grounds on which divorce can be filed under such circumstances are covered under Section 13(1) of the Hindu Marriage Act, 1955:

Any marriage solemnised, 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

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

     (a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

     (b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; 
(ii) has ceased to be a Hindu 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 kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

(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