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Divorce Procedure under Hindu Marriage Act: Mutual and Contested

Updated: May 23

In India, personal laws for various religions dictate the process of divorce. For Hindus, the Hindu Marriage Act of 1955 delineates two primary avenues Divorce by Mutual Consent under Section 13-B and Contested Divorce under Section 13. Divorce by Mutual Consent provides a route for couples to amicably dissolve their marriage through mutual agreement. Conversely, Contested Divorce comes into play when one party is unwilling to sustain the marital bond, citing reasons such as adultery, cruelty, desertion, or mental disorder. These provisions offer distinct paths tailored to the circumstances and preferences of individuals seeking dissolution of their marriage within the Hindu community.


Under the Hindu Marriage Act, a divorce can be contested and granted on the grounds of Adultery, Cruelty, Desertion, Conversion, Unsoundness of mind, Schizophrenia, Leprosy, Venereal disease, renunciation, entering new religious order, Presumption of death, non compliance with a decree of Judicial separation, non compliance with a decree of Restitution Conjugal Rights.


Divorce by Mutual Consent under the Hindu Marriage Act, Section 13B of The Hindu Marriage Act, delineates the provision for Divorce by Mutual Consent, offering a streamlined approach for couples seeking to peacefully dissolve their marriage. This section not only provides a legal framework but also establishes a specific timeline for the divorce process. After filing a joint petition for divorce at  Family Court or the District Court having jurisdiction over the area where either the husband or the wife resides. The court imposes a mandatory cooling-off period of six months, allowing the parties to reflect on their decision and potentially reconcile. Following this period, if both parties remain committed to the divorce, they can proceed with the second motion for divorce. This second motion can be filed anytime within 18 months from the date of filing the joint petition. If reconciliation is not achieved during this period and all legal requirements are met, the court issues the final decree of divorce, formally dissolving the marriage. Thus, Section 13-B sets forth a structured timeline, ensuring a fair and systematic approach to divorce proceedings based on mutual consent.

Procedure for Divorce by Mutual Consent: 1. Draft a Joint Petition stating the reasons for Divorce and that both the parties have mutually agreed for divorce. File the Petition jointly through respective lawyer in Family Court. 2. The Court after examining the petition and documents, gives a cooling period of 6 months to the parties, in the hope for their reconciliation. 3. If no such reconciliation takes place, then the second motion is filed before 18 months from the date of filing. If they wish to reconcile the parties can withdraw the divorce petition before 18 months. 4. In the Final Hearing, the court passes the decree of Divorce, dissolving the marriage.

Section 13 of the Hindu Marriage Act, 1955, delineates the grounds upon which a spouse may file for a petition for divorce. This section provides a comprehensive list of reasons or grounds for seeking the dissolution of marriage through a contested divorce process. Some of the key grounds for divorce under Section 13 include:

  1. Adultery: If either spouse engages in voluntary sexual intercourse with another person outside of the marriage, it constitutes adultery and is considered a valid ground for divorce.

  2. Cruelty: If one spouse treats the other with cruelty, either physically or mentally, to the extent that it becomes intolerable for the other spouse to continue living with them, it constitutes cruelty and can be a ground for divorce.

  3. Desertion: If one spouse abandons the other without reasonable cause and without their consent, it constitutes desertion and can be a ground for divorce.

  4. Conversion to Another Religion: If one spouse converts to another religion and ceases to be a Hindu, Jain, Buddhist, or Sikh, it constitutes a valid ground for divorce.

  5. Mental Disorder: If one spouse has been continuously and incurably of unsound mind or has been suffering from mental disorder of such a kind or to such an extent that it is impossible for the other spouse to live with them, it constitutes a valid ground for divorce.

Section 13 of the Hindu Marriage Act provides a legal recourse for individuals facing irreconcilable differences in their marriage and offers a structured process for seeking the dissolution of the marital bond through contested divorce proceedings. Procedure for Contested Divorce: 1. Draft a Petition clearly stating the facts and grounds for Divorce. 2. If the Court is satisfied after scrutinizing the Petition, the Court gives summons or notices to the other party that a divorce petition has been initiated by their spouse and the decided date of hearing. 3. At this stage, the court suggests mediation for reconciliation, and if it fails the court continues with the divorce proceedings. 4. On a fixed date, both the parties appear before the court and record their statements, submit evidence, produce witnesses if any and the parties are cross examined, and counsels present their final arguments. 5. The Court on a fixed date will pass the divorce decree. The aggrieved party can appeal before 3 months from the date of passing of Order.


 

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