Divorce Procedure under Hindu Marriage Act 1955
Updated: Aug 22, 2021
Divorce Procedures and Laws in India are regulated according to individual's religious practices. In India, there is no common law under which an individual can apply for a divorce. For Hindus, Buddhists, Sikhs, and Jain's divorce process is governed by the Hindu Marriage Act 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. And for relations, where two individuals who are from different religions have married, they are done under the Special Marriage Act 1956.
Under the Hindu Marriage Act, 1955. There are 2 kinds of divorce, they are Mutual Consent and Contested Divorce.
A Mutual Consent Divorce is when both the husband and wife have agreed to terminate the marriage. Under the Hindu Marriage Act 1955, both partners have the right to file for the dissolution of their marriage and can also file it together. The grounds for divorce by mutual consent divorce are laid down under Section 13 B of the Hindu Marriage Act, 1955.
A Contested Divorce is when a party isn't ready to go with the divorce procedure. But a contested divorce can be favorable in the party if there are scenarios as mentioned in Section 13 of the Hindu Marriage Act.
Under the Act, Sec 13 defines grounds of Divorce, A decree of divorce can be obtained by the husband or wife on the following grounds laid down under section 13(1) as laid below: (i) if either of the party had voluntary sex with any other person after the solemnisation of marriage.
(ii) treated the Petitioner with cruelty
(iii) has ceased to be a Hindu by conversion to another religion
(iv)has been incurable of mental disorder of such kind and to such extent that the Petitioner cannot be reasonably expected to live with that person.
(v) has not been heard of as being alive for a period of seven years.
It can also be filed on the following grounds by the wife under section 13(2) of the Act:
(i) if the husband has married again or if the husband had a living spouse when the parties got married.
(ii) if the husband has been guilty of rape, sodomy.
Apart from the above-mentioned grounds, the parties to a marriage may also present a petition for divorce if: (i) There has been no resumption of cohabitation between the parties for a period of one year or upwards after the decree of judicial separation has been passed. (ii) that there has been no restitution of conjugal rights for a period of one year or upwards after the passing of the decree of restitution of conjugal rights.
Judicial separation: Either party to a marriage may present a petition praying for a decree of judicial separation on any of the above-mentioned grounds in section 13 of the Act and it shall no longer be obligatory for the parties to reside together after a decree of judicial separation has been passed. Judicial separation is an alternate relief to divorce, passed by the court with regard to the circumstances of the case.
Restitution of Conjugal rights: When either the husband or wife without reasonable excuse, deserts the other person, the aggrieved person may apply to the district court for restitution of conjugal rights and if the court is satisfied with the truth of the petition may order the restitution of conjugal rights.
In simple words, the court orders the party to reside with the aggrieved party who has filed the petition. The burden of proof of reasonable grounds for desertion lies on the party who has deserted their spouse.
Divorce by Mutual Consent: A petition for divorce by mutual consent is filed under section 13B of the Hindu Marriage Act,1955. A petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties on the ground that they have been living separately for a period of one year or more, and they have not been able to live together and have mutually agreed on the dissolution of the marriage.
Procedure for getting a decree of divorce by mutual consent:
(i) Joint application in the form of affidavit is to be signed by both the parties and filed before the Family Court.
(ii) First Motion - After filing the petition, the parties shall give their statements, the statements are recorded and then the first motion is said to be passed after which a cooling period of six months is given to the parties before filing the second motion.
(iii) Second Motion- The second motion can be filed only after 6 months from the date of filing of a petition of divorce and before 18 months has elapsed.
In the second motion, the statements are recorded again and if the child custody and alimony matters are amicably settled, then the divorce of a decree by mutual consent is granted by the court.
The six months waiting period is not mandatory, but directory in nature as held by the Apex Court in Amardeep Singh Vs Harveen Kaur. The Apex Court has stated that the courts can grant the divorce after waiving six months waiting period on being satisfied that the "waiting period will only prolong their agony".
Jurisdiction of the Courts: Any petition for divorce, judicial separation, restitution of conjugal rights shall be presented to the District Court within the local limits of civil jurisdiction.
(i) where the marriage was solemnized
(ii) The respondent, at the time of the presentation of the petition resides
(iii) the parties to the marriage last resided together
(iv) in case the Petitioner his wife, then the place where the wife was residing on the date of presentation of the petition.