How to file divorce Petition under Hindu Marriage Act 1955 or Special Marriage Act 1954.

When married couple realizes that it is impossible to live with each other, if they opt, they can get divorce with mutual consent or either spouse may file divorce petition without the consent of other. It is better to take decision before converting scratches into wounds.

Author: O. Kuttan, Advocate, Supreme Court of India

 

 

Let us examine provision under Section 13 of the Hindu Marriage Act for 1955 for divorce.


"13 Divorce.
(1) 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

(ia) has, after the solemnisation 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 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; [ Explanation. In this sub-section, the expression 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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

(1A) Either party to a marriage, whether solemnised 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 ground

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal 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,

(i) in the case of any marriage solemnised 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 solemnisation of the marriage of the petitioner: Provided 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 solemnisation of the marriage, been guilty of rape, sodomy or [bestiality; or]

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], 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 solemnised 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.

Explanation. This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)"  


 

What are the types of Divorce Petitions

1. Mutual Consent Divorce Petition

If both the couple is agree for a divorce, a divorce petition with mutual consent can be filed in a court. 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.


i) Divorce by Mutual Consent under Hindu Marriage Act 1955
As per Hindu Marriage Act the couple can file first motion for mutual consent divorce under section 13 B of the Act. Provisions for mutual consent divorce petition under Section 13B are as under:


"13B Divorce by mutual consent.
(1) Subject to the provisions of this Act 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 solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), 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) 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 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 making such inquiry as it thinks fit, that a marriage has been solemnised 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."

The first motion under Section 13B(1) should be moved first. Earlier there was a cooling period of six months to move 2nd motion under section 13B(2) of the Act.

 

ii) Divorce by Mutual Consent under Special Marriage Act 1954
A couple can file mutual consent divorce petition under Section 28 of Special Marriage Act 1954. Provision under Special Marriage Act 1954 is as under:


"28. Divorce by mutual consent.-
(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the parties 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.


(2) 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 eighteen months] after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree."

  

 

Requirement under Section 10A of Divorce Act 1869
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. Provision under Section 10A of Divorce Act, 1869 is as under:


"10A Dissolution of marriage by mutual consent.
(1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.


(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and 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 declaring the marriage to be dissolved with effect from the date of decree."


Cooling Period is not mandatory in Mutual Consent Divorce Petitions, Supreme Court
As per the Judgment of Supreme Court passed by Justice Adarsh Kumar Goyal and Justice Uday Umesh Lalit on 12.09.2017 in Amardeep Singh v. Harveen Kaur, Civil Appeal No. 11158 of 2017 cooling period of 6 months is not necessary in some mutual consent divorce cases.


Important aspects in which husband and wife should reach in consensus:

1. Alimony or maintenance issues
As per law, there is no minimum or maximum limit of support. It could be any figure or no figure.

 

2. custody of the children
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.

 

3. 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.
 

 

 

II. Divorce Without Mutual Consent

In case of a contested divorce, there are specific grounds on which the petition can be made. The divorce petition should contain specific reasons for seeking divorce. The reasons for non mutual consent divorce are as follows. Some of the reasons are not applicable to all religions. Let us examine section 27 of the Special Marriage Act 1954:

"27. Divorce.
(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent- (a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860);

(d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) 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. Explanation.-In this clause,-

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression "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 respondent, and whether or not it requires or is susceptible to medical treatment; or

(f) has been suffering from venereal disease in a communicable form]; or

(g) has been suffering from leprosy, the disease not having been contacted from the petitioner; or

(h) 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 the respondent if the respondent had been alive;

[Explanation.-In this sub-section, the expression "desertion" means 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 wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;] [(1A) A wife may also present a petition for divorce to the district court on the ground,-

(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;

(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), 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.] (2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties."
 

 


 
Alimony or maintenance

A marriage between two persons brings the obligation to support each other and this does not necessarily end with divorce. As per Section 125 of Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage. This will include, therefore, either spouse, dependent children and even indigent parents. Let us examine section 125 of CrPC:


"125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, 18- 12- 1978 ).
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-

(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."


Claim of maintenance will depend on the income and means of husband or the other persons. While deciding how much alimony is to be paid, the courts will take into account the earning potential of the person liable to pay, his ability to regenerate his fortune , in case, say, the property is given to the wife, and his liabilities.


In case of one of the spouse is not able to pay for expenses of divorce, the other spouse who has income is liable to pay the amount.

How to decide duration and amount of alimony
In a contested divorce, the alimony, its amount and tenure, depend upon the length of marriage. A divorce after a decade of marriage entitles the spouse to a life-long alimony. The other essential factors that need to be considered are:

1. Age of the spouse (or the person who is entitled to receive the alimony)

2. Economic condition or the earnings of the person who is to provide the alimony

3. The health of both spouse (the failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favour of him or her. They can claim a larger alimony on the basis of their failing health).

4. The spouse that retains custody of the child would be entitled to either pay lesser alimony or be entitled to a greater amount while the child is a minor.

Settlement of Property Matters
A married spouse have the right to occupy the property irrespective of the fact that divorce petitioner has been filed. The property may be granted to one or other spouse later. Until it is done both spouses have the right to remain on the property.


How to solve child custody
The assumption that the mother always gets custody of her children is not the case. The court is expected to see the best interest of the child. Usually the courts will examine the ability of the mother or father to be a parent to the child. Non-working mothers are regularly given custody of their children, but fathers are expected to provide financial support.
 

 

 

Cost filing divorce Petition
There is only a small amount of fee for filing divorce petition. But many lawyers tend to charge good amount of fees for appearing in court and doing any other work. Depending on how intensely it is fought.

 

Documents required to file divorce Petition
1. Address proof of husband
2. Address proof of wife
3. Marriage certificate
4. Four passport size photographs of marriage of husband and wife
5. Evidence proving spouses are living separately since more than a year
6. Evidence relating to the failed attempts of reconciliation
7. Income tax statements for the last 2-3 years
8. Details of profession and present remuneration
9. Information relating to family background
10. Details of properties and other assets owned by the petitioner

Annulment of marriage
Marriages in India can also be dissolved by means of annulment. The procedure for annulment is same as that of divorce, except that the grounds for annulment are different from that of divorce. Reasons for annulment are fraud, the pregnancy of wife by a person other than the husband, impotence before the marriage and subsisting even at the time of filing the case.

Once annulment is granted by an Indian court, the status of the parties remains as it was prior to the marriage.

What is Void Marriage?
A marriage is automatically void and is automatically annulled when law prohibits it. Section 11 of Hindu Marriage Act, 1955 deals with:

Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 of the Act.

Void marriage of Bigamy
If either spouse was still legally married to another person at the time of the marriage then the marriage is void, and no formal annulment is necessary.


Interfamily marriage
A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.

Marriage between close relatives
A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

Voidable marriage
A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud.

The duration for obtaining divorce varies from case to case and place to place. Generally speaking, contested divorce proceedings take 18 to 24 months. Mutual consent divorce varies from 6 months to 18 months.

 

 

Important Case Laws, Citations of Supreme Court, High Court and District Courts

 

Hindu Marriage Act Case laws

Divorce Act Case Laws

Domestic Violence Act Citations

125 CRPC Case Laws and Citations

Section 498A IPC Case Laws

 

CRPC - Code of Criminal Procedure

CPC Important citations, case laws

Indian Penal Code Case Laws

Perjury Case laws and citations

Maintenance case decision favouring husbands

 

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