What Couples Should Know About the Hindu Marriage Act Before they Decide to Divorce?
Divorces are a necessary evil these days, depending on who you ask. While divorce was totally unheard of in ancient India, there were provisions for judicial separation due to domestic misunderstandings. Hence the taboo around divorces in Indian society, especially in the middle class. However, we all agree that sometimes it is just better to separate than to go on living together with a partner with whom it is not working out. In fact, the Hindu Marriage Act has been in effect since 1955, to provide a sound legal framework for the dissolution of marriages.
However, there are a lot of technicalities in any law and the plethora of acts and amendments regarding divorce law in India is no different. This blog aims to inform you about all the nitty-gritty details of the Hindu Marriage Act of 1955 so that you can understand your rights before you go to file for a divorce.
Section 10 of the Hindu Marriage Act outlines the process of judicial separation which is a legal process through which a married couple can get formally separated. When a court passes a decree of judicial separation, it is no longer necessary for the married couple to live under the same roof.
Null & Void Marriages
Marriages can be declared null and void if they don’t meet any of the following conditions mentioned in section 5 of the divorce laws in India Hindu marriage.
- If either partner has a living spouse at the time their marriage was registered.
- If the partners were in a prohibited relationship or they are sapindas of each other.
- If the marriage was not consummated due to impotence.
- If the consent of the marriage was obtained by force.
- The wife was pregnant by some other person at the time of the marriage.
Divorce Notice and Further Procedure
A divorce notice is a mandatory step in a divorce proceeding. It is a legal notice that is sent by one spouse to the other that details the grounds on which the divorce is being filed. The Hindu Marriage Act also outlines the limits of where the divorce notice can be presented in civil court. Thus, the divorce petition can only be presented in:-
- The same place where the marriage was solemnized
- The place of residence of the respondent at the time of filing the petition
- The place where the couple last resided together
- The place where the wife last resided.
- In case the respondent lives outside the territorial limits of the act or has been presumed dead for over 7 years, the petition can be filed at the current place of residence of the petitioner.
One-year time gap
Indian divorce law mandates that a divorce petition can only be filed after the couple has been living together for a period of one year. This condition is in place because most problems between couples usually arise in the first year of marriage as two separate individuals figure out how to live together. The tolerance for the slight nuances of each other’s character which may have been unbearable at first usually increases with time spent together.
Types of Divorce Petitions
There are two types of divorce petitions that can be filed. They are contested and uncontested divorces. Contested refers to when one spouse files for a divorce based on any of the grounds that are mentioned under the Hindu Marriage Act of 1955. Uncontested divorces are less messy than contested divorces and they happen when both parties agree that there is no point in dragging their marriage further.
Grounds for Divorce
There are several reasons that can be stated as valid grounds for filing a divorce appeal according to Section 13 of the Hindu Marriage Act of 1955. They are mentioned below.
- Adultery – Either of the partners has had voluntary sexual intercourse with a person other than his or her spouse.
- Cruelty – Has treated their spouse with cruelty i.e., has been abusive. This includes both physical and mental cruelty.
- Desertion – Has deserted or has been willfully neglecting their partner, without their consent or against their wishes, for a period of at least two years before the petition has been presented in court.
- Conversion – Has converted to any other religion.
- Mental Disorder – Has been suffering from mental illness, arrested development, schizophrenia, or any other psychological disorder that makes them unusually aggressive or unable to function reasonably and requires medical care.
- Venereal Disease – Has been suffering from any kind of venereal disease that is communicable (includes Leprosy too).
- Non-resumption of cohabitation – There has been no resumption of cohabitation for a period of 1 year or more after filing for a judicial separation.
- Non-restitution of conjugal rights – Cohabitation has not been restored even after a judicial decree has been passed in a previous proceeding or has wilfully refused to consummate the marriage.
- Presumed Dead – The whereabouts of either spouse have been unknown for over 7 years.
- Renouncement – Has renounced worldly life and affairs after entering a religious sect, cult, or order.
Special Provisions for a Wife
There are some special provisions under which a wife may be eligible to file for a contested divorce under 13 of the Hindu Marriage Act, 1955. These are-
- In case the husband has or had another wife before marriage with the aggrieved party. Or in case he married after the commencement of their marriage.
- In case the husband has been guilty of rape, sodomy, or bestiality since their marriage.
- In case the husband has failed to comply with a maintenance order since they have been living separately and cohabitation has not resumed within a period of 1 year or more.
- In case the marriage was solemnized before the wife was of legal age.
New Divorce Rules 2021
There have been many changes through amendments and court hearings that have changed the divorce rules in India 2021. They are:
- Reprieve from the 6-month cooling-off period
- Decriminalization of Adultery
- Ban on Triple Talaq
- Only Civil Courts Can Order a Divorce
- The Indian Divorce (Amendment) Act of 2001 which replaced the Indian Divorce Act 1869
The aftermath of divorce, including maintenance and custody of children, can also be a big hassle. While either the man or the woman is eligible to receive maintenance after the breakdown of a marriage or receive the custody of children, experienced professionals like Lex Solutions can make the process much easier. The same applies to all the legal matters related to filing a divorce case. Going for a reputed law firm like Lex Solution will also save you the worry of unprofessional lawyers trying to rip you off.
- Can women get property even after divorce?
Yes. There is a special right under the Hindu Marriage Act that categorizes all the gifts that the woman received at the time of marriage as Streedan. This includes both movable and immovable property and the woman has full right to it even after divorce.
- Does the mother always get the custody of children after divorce?
No. The ability of the parent to raise the child is taken into consideration by the courts while deciding the custody of children. The father can also get custody of the children if the mother is deemed unfit to raise them by the courts.
- Are there any reasons the wife may not get maintenance after the divorce?
Yes. The wife may not be entitled to maintenance after divorce if they get into an adulterous relationship during the time of marriage, if they marry again, when they become financially self-sufficient, if the spouses are staying separately based on mutual consent or if the wife refuses to reside with the husband without proper reasons.
- Why was the Indian Divorce Act 1869 amended?
The Indian Divorce Act 1869 was amended in 2001 because it was ruled that several of its provisions denied the constitutional rights of Christian women whose divorces it was concerned with.
- What are the conditions for filing a mutual divorce?
There are 3 conditions – the partners have to live separately for at least 1 year or more; they have been unable to live together; they should mutually agree that their marriage is irreparable and should be dissolved.