In India, marriages are solemnised under Hindu customs and are governed by the Hindu Marriage Act, 1955. It contains all the essentials to give a Hindu marriage a legal status and provides remedies to either of the parties to free themselves from the marriage subject to reasonable justifications. This remedy is called divorce. The Hindu Marriage Act, 1955, for the first time, introduced divorce among the Hindus. Divorce is a remedy whereby the marriage is dissolved, and the marital tie is broken forever. Divorce finishes all legal obligations of a husband and wife towards each other as a married couple. It provides an opportunity to both the parties to claim such gross sum or periodical payments of money as is necessary for the support and maintenance. In this article, we will have a broad look at these provisions and how lawyers can procure the most amount of benefit for their clients.
Essentials of a valid marriage
To claim a decree of divorce or an order of maintenance, the marriage between the concerned parties must be solemnised according to the provisions of a valid marriage given in the Hindu Marriage Act, 1955. Section 5 of the Hindu marriage act contains the essentials of a valid Hindu marriage, which are-
● Neither of the parties has a spouse living at the time of marriage.
● Both parties are capable and have an equal opportunity to give their consent to the marriage.
● The bridegroom should have completed the age of 21 years, and the bride should have attained the age of 18 years at the time of marriage.
● The parties should not be in a prohibited relationship unless the custom or usage governing them permits marriage between the two.
● The parties should not be sapindas of each other unless the custom or usage governing each of them permits marriage between the two.
Provisions and Grounds for Divorce
A marriage can be dissolved after a decree of divorce is granted by a competent court. Provisions and grounds on which divorce can be attained are given in Section 13 of the Hindu Marriage Act, 1955. The primary grounds on which either party can procure a decree of divorce are:
● Either of the spouse has indulged in a sexual act with a person other than their partner after the solemnisation of marriage, or has been subjected to cruelty, or has deserted the partner for a continuous period of not less than two years.
● Either of the spouses, by way of conversion to any other religion, has ceased to be a Hindu.
● Both spouses are incurably of unsound mind or have been suffering continuously or intermittently from any 'mental disorder' to the extent that the petitioner cannot reasonably be expected to live with the respondent.
● Any of the spouses suffer from a virulent or incurable form of leprosy or any venerable disease of infectious nature.
● Either of them is missing and have not been heard of as being alive for seven years or more.
Apart from these, parties can also claim divorce on numerous other grounds, such as divorce by mutual consent as given under Section-13B. Both parties agree mutually to end their marriage by showing that they have been living apart for not less than one year and are not compatible. The section demands three requirements for this remedy.
● The parties must have been living separately for more than a year immediately before the petition for divorce by mutual consent.
● The parties are not able to live together.
● They have voluntarily agreed to a mutual divorce. There should be no force or fraud by one upon the other or by others in the act of granting consent to a divorce.
Apart from these formal requirements, no specific ground is necessary. If there is some ground for their mutual discomfort, they may not resort to it and instead adopt the frictionless method of consent divorce. Their intention of mutual consent agreement must become evident to the Court by their joint petition. This purpose cannot be served by one of them just filing a copy of the agreement individually.
The Court will not consider the petition for six months. After the expiry of six months, the Court cannot proceed with Suo Motu. The parties must approach the Court for consideration of their petition; if they do not, up to 18 months from the date of the petition, their petition will lapse. This form of divorce is the most common and efficient as they do not throw allegations on a single person for a failed marriage and saves the time of the Court by reducing the burden of proving any allegations. Further, either party to a marriage, whether solemnised before or after the commencement of the Hindu Marriage Act, may also present a petition for dissolution of the marriage by a decree of divorce on any of the following additional grounds:
● There has been no resumption of cohabitation between the parties to the marriage for one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.
● There has been no restitution of conjugal rights between the parties to the marriage for one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Under Section 13(2), a wife may present a petition for the dissolution of her marriage by a decree of divorce on grounds:
● In a marriage solemnised before the commencement of this Act, the husband had married again before such commencement. Any other wife of the husband married before such commencement was alive at the time of solemnisation of the petitioner's marriage. Provided that, in either case, the other wife is alive at the time of the presentation of the petition.
● Since the marriage's solemnisation, the husband has been guilty of rape, sodomy, or bestiality.
● After a decree for maintenance to the wife, notwithstanding that she was living apart, cohabitation has not been resumed for one year or upwards.
● The marriage (whether consummated or not) was solemnised before she attained fifteen years. She has rescinded the marriage after attaining that age but before attaining the age of eighteen years.