The Hindu Marriage Act provides a lot of grounds for divorce, which a spouse can seek in order to obtain divorce in India. Although marriage, according to Hindu Law, is a holy sacrament and not a contract, and that the husband and wife are considered one in law. Despite that, problems and tensions may develop between husband and wife and may escalate to such an extent that separation by way of divorce may seem to be the only option left. Seeking a divorce is no doubt a big and bold step for either of them, but at times, it may be the only solution to a long term problem.
What is the Procedure for Divorce in Delhi?
Marriages solemnized under the Hindu Marriage Act, 1955 can also be brought to an end by following the conditions laid down under the same Act. You may wish to go through my earlier blog post on Applicability of Hindu Marriage Act, 1955 to determine whether the Act is applicable to you or not.
Procedure for seeking Hindu divorce as per Hindu Marriage Act, 1955 is provided under Section 13 of the Act, which states that any marriage solemnized whether before or after the commencement of the Act, may, on a divorce petition presented by either the husband or the wife, be dissolved by a decree of divorce. You may also wish to go through my earlier blog post on Conditions for a Valid Marriage under the Hindu Marriage Act, 1955 to determine whether your marriage is governed by the Act or not.
The procedure for legal contested divorce in Delhi starts by either the husband or wife engaging a Lawyer, who will draft a divorce petition as per the facts narrated by the person and on the basis of the grounds provided under Section 13 of the Hindu Marriage Act, 1955 before a Family Court Judge as per the territorial jurisdiction. Pursuant to the reply filed by the other side, trial will begin and both the parties would lead evidence in support of their claims and arguments. Finally, based on the arguments and evidence on record, the Judge will pass appropriate orders.
Grounds for Divorce:
Since marriages in India are considered to be a sacred bond, therefore, if husband and wife wish to obtain divorce from each other, they can do so only on the grounds provided under the Hindu Marriage Act, 1955. The Act primarily provides 9 grounds on which either the husband or wife can obtain divorce from the other, which are:
(For the sake of convenience, I’ve also used the word “Spouse” to denote husband or wife in a marriage.)
#1: If a spouse, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
#2: If a spouse, after the solemnization of the marriage, treated his/her spouse with cruelty; or
(The expression ‘cruelty’ is used for both mental cruelty as well as physical cruelty.)
#3: If a spouse, deserted his/her spouse for a continuous period of not less than 2 years; or
(The expression ‘desertion’ means the desertion of a spouse by the other without reasonable cause and without consent or against the wish of such spouse, and also includes willful neglect of a spouse by the other.)
#4: If a spouse, has ceased to be a Hindu by conversion to another religion; or
#5: If a spouse, 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 other spouse cannot reasonably be expected to live with that spouse; or
#6: If a spouse, has been suffering from a virulent and incurable form of leprosy; or
#7: If a spouse, has been suffering from venereal disease in a communicable form; or
#8: If a spouse, has renounced the world by entering any religious order; or
#9: If a spouse, has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of him/her, had he/she been alive.
Section 9 of the Hindu Marriage Act, 1955 provides for ‘restitution of conjugal rights’ between the husband and wife, and Section 10 of the Act provides for ‘judicial separation’ of the husband and wife, in cases where the situation and circumstances deem it necessary to obtain either of the decrees from the Court.
Section 13 of the Act, along with the above mentioned 9 primary grounds for taking divorce, in view of Section 9 and 10 of the Act, also provide 2 additional grounds to a husband or wife for getting divorce, which are:
#10: If there has been no resumption of cohabitation between the husband and wife for a period of 1 year or upwards after the passing of a decree for judicial separation; or
#11: If there has been no restitution of conjugal rights as between the husband and wife for a period of 1 year or upwards after the passing of a decree for restitution of conjugal rights.
Additional Grounds for Divorce for Wife:
The above mentioned 11 grounds for divorce are available to both husband and wife, therefore either of them can file divorce on these grounds. But the Hindu Marriage Act, 1955, further provides 4 more additional grounds applicable ONLY to a wife for getting divorce from her husband, which are:
#1: In case of any marriage, solemnized before the commencement of the Hindu Marriage Act, 1955, where the husband had married again before such commencement or that the other wife of the husband was alive at the time of the solemnization of marriage between the husband and the present wife; or
(I’m sure this ground would be applicable only to a handful of wives in India now, since the Hindu Marriage Act came into force way back in the year 1955.)
#2: In case the husband, since the solemnization of the marriage, has been guilty of rape, sodomy or bestiality; or
#3: In case in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (maintenance of wife) or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (order for maintenance of wives, children, and parents), a decree or order, has been passed against the husband awarding maintenance to the wife and that she was living apart from the husband and that since the passing of such decree or order, cohabitation between the wife and husband has not been resumed for 1 year or upwards; or
#4: In case the solemnization of a marriage before the wife attained the age of 15 years, and that she has refused to accept the marriage after attaining the age of years 15 and before attaining the age of 18 years.
These were the grounds for divorce available to husband and/or wife for a legal contested divorce under the Hindu Marriage Act, 1955. There are few more grounds and procedures for divorce as per Indian Laws, which would be talked about in future blog posts.
- Disclaimer: This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.
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Sir, I have few questions
Me along with my husband and daughters used to stay at my parental place because we had jobs and my mother used to take care of my kids. I lost my job in Dec 2016 and in Feb 2017 my husband, and mother in law asked me to come back home as my divorcee sister in law who is also a member of the same family, her son was going for a training so they asked us to shift and stay with them. We were I Gurgaon and they were in Delhi. I asked them to shift and stay with us as for me it was impossible to take care of the house, kids and also to do up and down to Gurgaon for my job. March end 2017 my husband left me and went back to Delhi saying that I am the culprit and ruined his life and home. I tried a lot to stop him and not to go. But he left. Then I tried to cook everything and asked him to take care ofvhis mum and sis and I will take care of the kids here. But soon after his shifting to Delhi his company transferred him to Bangalore. So his mom and sis (who is a teacher by profession and earning a good amount) was alone there in Delhi and as because he was expecting me to take care of them there and I refused to stay there because his sister is very dominating and I had gone through a mental harrasment everyday because of her. So I had again a big argument over the phone with my husband and that they I just felt that I want to commit suicide.
Ours was a love marriage and the initiative was taken by me against my parents will. Although later on it was a love cum arange marriage. And my husband said that tum mere paas aai thi maine kabhi nahi kaha tha that I want to marry you, Tumhe chod sakta hun apne maa aur bahan ko nahi. Although I never ever asked him to leave his mom or sister.
And since April 2017 we are not in relation, physically, mentally or financially.. And the decision of staying away from him was taken by me as I was completely broken, shattered and it hitted my self respect badly.. Its been 2 years, no one ever tried to even know from his family why I don’t come home, why we are not together.
Now I want a divorce and my husband is saying that I want to stay in relation.. He use to come and meet the kids once in a week.
I can’t commit to this relation as I neither have feelings and nor have respect for him and his family. And I am a spiritual person I can’t disrespect anyone. So I want to stay away, cut off all the chords and to be with my kids peacefully. He is paying the school expenses and some other stuff for the kids. But my kids are not at all interested to go and stay with their father.
On what ground now I can file divorce? Desertion? And what about my kids custody? I am kot working, struggling to stable my business. And dependent on. My parents and brother.
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