Divorce Procedure in India
There are different laws of divorce for different religions in India.
1. Hindu Marriage Act, 1955, is applicable for all the Hindus including Sikh, Jain and Budh.
2. Indian Divorce Act, 1869, is applicable to Christians.
3. The Dissolution Of Muslim Marriages Act, 1939, Muslim Personal Law (Shariat) Application Act, 1937 and The Muslim Women (Protection of Rights on Divorce) Act,1986, is applicable to Muslims.
4. Parsi Marriage and Divorce Act, I936, is applicable to Parsis.
5. Special Marriage Act, 1954.
1. Hindu Marriage Act, 1955, is applicable for all the Hindus including Sikh, Jain and Budh.
2. Indian Divorce Act, 1869, is applicable to Christians.
3. The Dissolution Of Muslim Marriages Act, 1939, Muslim Personal Law (Shariat) Application Act, 1937 and The Muslim Women (Protection of Rights on Divorce) Act,1986, is applicable to Muslims.
4. Parsi Marriage and Divorce Act, I936, is applicable to Parsis.
5. Special Marriage Act, 1954.
Divorce can be applied in two ways:
1. DIVORCE BY MUTUAL CONSENT:
important ingredients applying for mutual consent are that 1. Husband and Wife should be leaving separately (not as husband and wife) 2. Mutual understanding between Husband and Wife for Divorce. 3. Mutual understanding about maintenance. 4. Mutual understanding about Child Custody. Duration for the Mutual Consent Divorce will be generally 6-7 months.2. CONTESTED DIVORCE:
One of the party (Husband / Wife) need to contest it. Grounds for Divorce would be generally :
a. Adultery
b. Cruelty
c. Desertion
d. Conversion
e. Venereal diseases in communicable form
f. Renounces worldly pleasures
g. Presumption of death
h. Unsoundness of Mind / Mental Disorder
i. Leprosy
j. Non-Compliance with a decree of Judicial separation
k. Non-Compliance with a decree of restitution of conjugal rights
m. Rape, sodomy or bestiality
n. Decree or order of maintenance: Where a decree for maintenance of wife under s.18 of the Hindu Adoptions and Maintenance Act 1956, or an order for maintenance of wife under s. 125, Cr PC 1973, has been passed against the husband, the wife is entitled to present a petition for divorce provided two conditions are satisfied. First, she was living apart, and secondly, since the passing of such decree or order cohabitation between her and her husband has not been resumed for at least one year.
o. Marriage before attainment of the age of fifteen years
p. Consent obtained by force
b. Cruelty
c. Desertion
d. Conversion
e. Venereal diseases in communicable form
f. Renounces worldly pleasures
g. Presumption of death
h. Unsoundness of Mind / Mental Disorder
i. Leprosy
j. Non-Compliance with a decree of Judicial separation
k. Non-Compliance with a decree of restitution of conjugal rights
ADDITIONAL GROUNDS FOR DIVORCE FOR WIFE
l. Husband having more than one wife livingm. Rape, sodomy or bestiality
n. Decree or order of maintenance: Where a decree for maintenance of wife under s.18 of the Hindu Adoptions and Maintenance Act 1956, or an order for maintenance of wife under s. 125, Cr PC 1973, has been passed against the husband, the wife is entitled to present a petition for divorce provided two conditions are satisfied. First, she was living apart, and secondly, since the passing of such decree or order cohabitation between her and her husband has not been resumed for at least one year.
o. Marriage before attainment of the age of fifteen years
p. Consent obtained by force
ANNULMENT
Annulment is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.Grounds For Annulment:
The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence including the following:
1) Either spouse was already married to someone else at the time of the marriage in question;
2) Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse's reaching marriageable age);
3) Either spouse was under the influence of drugs or alcohol at the time of the marriage;
4) Either spouse was mentally incompetent at the time of the marriage;
5) If the consent to the marriage was based on fraud or force;
6) Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;
7) The marriage is prohibited by law due to the relationship between the parties. This is the "prohibited degree of consanguinity", or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.
8) Prisoners sentenced to a term of life imprisonment may not marry.
9) Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)
2) Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse's reaching marriageable age);
3) Either spouse was under the influence of drugs or alcohol at the time of the marriage;
4) Either spouse was mentally incompetent at the time of the marriage;
5) If the consent to the marriage was based on fraud or force;
6) Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;
7) The marriage is prohibited by law due to the relationship between the parties. This is the "prohibited degree of consanguinity", or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.
8) Prisoners sentenced to a term of life imprisonment may not marry.
9) Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)
VOID MARRIAGES:
Section 12 of Hindu Marriage Act, 1955 deals with Voidable Marriages- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.