Divorce means ‘the legal dissolution of a marriage by a court or other competent body.’ Before we know the procedure and conditions it is necessary to go through the grounds on which a party can seek the divorce from his/her partner by filing a petition in court. The Hindu Marriage Act, 1955(Act 25 of 1955) provides certain grounds for divorce under Section 13. The grounds are:
- Adultery
- Cruelty
- Desertion for a period of over 2 years (without reasonable cause)
- Conversion of religion (ceased to be a Hindu)
- Suffering from an incurable mental disorder
- Suffering from an incurable form of leprosy
- Suffering from a communicable venereal disease
- Renunciation of the world
- Not been heard of as being alive for a period of seven years or more
Other grounds:
1. No resumption of cohabitation between husband and wife for 1 year after the passing of the decree of judicial separation.
2. No restitution of conjugal rights for a period of 1 year after the passing of the decree for restitution of conjugal rights.
All these above-mentioned grounds are available to both the parties (i.e. husband as well as the wife), but following grounds are available to wife specifically:
- If the husband has indulged in rape, bestiality, and sodomy.
- If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek a divorce.
- A wife is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
- If there is no cohabitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
Procedure:
A couple can get a divorce
- by mutual consent, or
- either spouse may file for divorce without the consent of the other.
Divorce With Mutual Consent:
When husband and wife both agree to a divorce, the courts will consider a divorce with mutual consent. For the petition to be accepted, however, the couple should be separated for over a year or two years (as per the relevant act) and be able to prove that they have not been able to live together. Often, even when either husband or wife is reluctant, they still agree to such a divorce because it is relatively inexpensive and not as traumatic as a contested divorce. Matters like
- children’s custody,
- maintenance, and
- property rights
could be agreed to mutually.
There are three aspects regarding which a husband and wife have to reach a consensus. One is alimony or maintenance issues. As per law, there is no minimum or maximum limit of support. It could be any figure or no figure. The second consideration is custody of the child. This must necessarily be worked out between the parties, as it is inevitably what requires the greatest amount of time in divorce without mutual consent. Child custody in a mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses. The third is property. The husband and wife must decide who gets what part of the property. This includes both movable and immovable property. Right down to the bank accounts, everything must be divided. It is not necessary for it to be fair, so long as it is agreed to by both parties.
The duration of a divorce by mutual consent varies from six to 18 months, depending on the decision of the court. Usually, the courts prefer to end mutual consent divorces sooner, rather than later.
As per Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple should be living separately for at least one year before divorce proceedings can begin. Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at least two years. Do note that living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period.
Divorce Without Mutual Consent:
In the case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a reason. The reasons for divorce are mentioned earlier.
Coming to the next part of the question raised in the title, that ‘what happens when the wife wants to divorce and the husband doesn’t’, all the problem arises at this point when one party does not agree with the other. The husband has a right to turn down a divorce; he can refuse to divorce even after filing a petition for divorce through mutual consent. Following this, the court will typically dismiss the petition for divorce through mutual consent.
In such a case, as the wife wishes to divorce, she will have to separately file a petition to the court to grant the divorce. Such a petition can be made by the wife only on certain grounds(discussed earlier).
The court will call upon the wife to prove the ground sought by her for the divorce; the husband will be called to disprove the allegations. If the wife’s allegations are proved, the court would award a divorce, even if the husband does not wish to divorce. If the allegations are found unsubstantiated, the court will dismiss the divorce petition.
So, the answer is, the husband has to disprove the allegations made against him to avoid the divorce.
SOURCE:
https://vakilsearch.com/advice/divorce-in-india/
http://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php
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What is ‘cruelty’ in divorce matters?
Though ‘cruelty’ is an ambiguous and inclusive term, but an attempt has been made to understand it.
A. In the Hindu personal laws ‘cruelty’ is one of the major causes of divorce. The simple meaning of the term cruelty is cruel behavior/attitudes, brutality, savagery, inhumanity, barbarism etc. In legal field, cruelty denotes the behaviour which causes physical or mental harm to another, especially a spouse, whether intentionally or not.
Section 13 of Hindu Marriage Act,1955 has provided certain grounds of divorce in which cruelty is the most common one. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
Some common examples of cruelty include the following:
1. physical attacks on a spouse
continuous rage, anger, screaming, or yelling at a spouse
2. constant belittling or criticizing the other spouse’s abilities, employment, or looks
3. publicly flaunting an affair or adulterous relationship
4. falsely accusing the other spouse of committing adultery
5. failing to tell the other spouse about an acquired sexually transmitted disease, while continuing to maintain sexual relations with spouse, and
6. Consistently staying away fro m the marital residence without any explanation.
For better understanding, let’s go through a case study:
Naveen Kohli Vs. Neelu Kohli [AIR 2004 All 1]
Facts:
The appellant, Naveen Kohli got married to Neelu Kohli on 20.11.1975. Three sons were born out of the wedlock of the parties.
According to the appellant, the respondent is bad tempered and a woman of rude behaviour. After marriage, she started quarrelling and misbehaving with the appellant and his parents and ultimately, the appellant was compelled to leave the parental residence and started to reside in a rented premises from May 1994.
The appellant alleged that in the month of May 1994, when he along with the respondent and their children visited Bombay to attend the golden jubilee marriage anniversary of his father-in-law, he noticed that they respondent was indulging in an indecent manner and found her in a compromising position with one Biswas Rout. Immediately thereafter, the appellant started living separately from the respondent since May 1994. The appellant suffered intense physical and mental torture.
According to the appellant, the respondent had withdrawn Rs. 9,50,000/- from the Bank Account of the appellant and deposited the same in her account. The appellant alleged that the respondent got a false first information report registered against him under Sections 420/467/468 and 471 IPC, which was registered as Case No. 156 of 1995. According to him, the respondent again got a case under Sections 323/324 I.P.C. registered in the police station Panki, Kanpur City and efforts were made to get the appellant arrested.
Husband field for divorce on grounds of ‘cruelty’, Trial Court recorded specific finding about wife harassing and torturing husband, mentally, physically and financially. Decree of dissolution of marriage passed by Trial Court marriage under Section 13, Hindu Marriage Act.
Wife appealed in High Court and HC held evidence on record not properly appreciated by Trial Court. A finding that husband immorally cohabited with another lady recorded by the High Court. On that ground held, that it amounted to misconduct and was uncondonable for the purpose of Section 13(1)(a) of the Hindu Marriage Act and suit for divorce dismissed.
Hence, the husband is appealing in SC for the decree of divorce.
Judgement:
From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty.
The respondent against the appellant has filed number of cases including criminal complaints and every effort has been made to harass and torture him and even to put the appellant behind the bars by the respondent.
SC held that the word “cruelty” is used in Section 13(1)(i)(a) of the Act in the context of human conduct or behavior in relation to or in respect of matrimonial duties or obligations. Physical violence is not absolutely essential to constitute cruelty. A consistent course of conduct inflicting immeasurable mental agony and torture may constitute cruelty. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. Hence SC set aside the judgment of the High Court and directs that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955.
hi
my sisterr filed divorce without mutual constent
she had proof against her husband about extra matrial affair. She has chats of her husband and his girlfriend
Her husband drinks a lot and come late at home, my sis is not happy with her marriage, she is mentally disturbed in her realtion she dont want to leave in this marrrige and want to divoce.
is she can get a divorce by this proof ?
Hello Sir/Ma’am,
We are an edu-help portal. We don’t provide legal help in sensitive issues. Not even we can ‘advise’ over this matter. Very sorry for that. Please consult a professional lawyer.
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hello sir/madam
my wife wants divorce. i am living in a village and she is from city area. As she is qualified she working in a reputed organisation.
after 10 years of marriage she starts coming home late. due to heavy workload i suggest to change job from that day she starts allegations . she says our thinking doesn’t match and now she wants divorce.
this is not a valid reason for divorce and she also not clear about reasons as she refuses to tell.
what to do