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Divorce Laws Under Hindu Marriage Act, 1955 In India

Overview of Divorce Laws in India

Divorce is the process when a couple no longer wants to be married to each other and decides to dissolve their legal marriage. Divorce in India is not common because of multiple factors like societal, religious and cultural morality. Divorce in India is primarily governed by personal laws such as Hindu Marriage Act, 1955, Special Marriage Act, 1954, Indian Divorce Act, 1869 (Christian Law), Dissolution of Muslim Marriage Act, 1939.

Grounds of Divorce under Hindu Marriage Act, 1955

Hindu Marriage Act covers Hindus, Sikhs, Jains and Buddhists, therefore, these grounds of divorce are applicable for the above-mentioned religions. Grounds are:

Adultery: Consensual and voluntary sexual intercourse between a married person with another person (who is married or unmarried) of opposite sex is called Adultery. (section 13(1)(i) of HMA, 1955)
Cruelty: When one spouse causes mental or physical suffering to another spouse which makes living together tough is called Cruelty. (section 13(1)(ia) of HMA, 1955)
Desertion: When one spouse leaves another spouse for two year without any reasonable justification or his/her consent is known as Desertion. (section 13(1)(ib) of HMA, 1955)
Conversion to another religion: When one spouse converts his/her religion to another religion without the consent of another spouse. (section 13(1)(ii) of HMA, 1955)
Mental Disorder: When one spouse is suffering from incurable mental disorder and another spouse has been suffering the consequences of his/her disorder making cohabitation tough. (section 13(1)(iii) of HMA, 1955)

Venereal Disease: When one spouse is suffering from a disease that can be transmitted to another, this can be considered as a ground for divorce. (section 13(1)(v) of HMA, 1955)
Renunciation: When one spouse leaves their family to live a religious life, which makes the marriage unmaintainable.
Presumption of death: It is a legal assumption that a person who has been missing for a long period (seven years) is assumed to be dead. This allows dissolution of marriage.
No resumption of cohabitation after a decree of judicial separation for one year: This ground for divorce means that if a couple has been separated by court order and hasn't lived together for a year afterward, either spouse can file for divorce.
No restitution of conjugal rights for one year: This ground allows for divorce if one spouse fails to follow with a court order to resume marital relations and cohabit with the other spouse for at least one year.
Mutual Consent Divorce: When both spouses agree to dissolve the legal marriage, they can dissolve it. It requires both parties to live separately for at least one year.

Procedure for Filing a Divorce Petition

Filing a divorce petition can be a hectic process, therefore a simple procedure is mentioned below:

Step 1: Filing of a Petition:

Both spouses together file a petition for mutual divorce with the family court, saying that they have been living separately for at least one year and have mutually decided to end the marriage. The petition must be signed by both parties.

Step 2: Scrutiny of the Petition:

After filing, both spouses and their lawyers appear in court. The court will examine the petition and supporting documents and may start a reuniting process if needed.

Step 3: Recording of Statements:

If the court is satisfied with the petition, it will order both spouses to record their statements on oath for confirming their mutual consent for divorce.

Step 4: Order on First Motion and Six-Month Wait:

The court issues an order on the first motion and then requires a waiting period of six months before the second motion can be filed. The total period from the petition's presentation to the second motion can be up to 18 months.

Step 5: Second Motion and Final Hearing:

After the six-month period, both parties file the second motion. If they continue with the process, the court will schedule a final hearing. The court may waive the six-month waiting period if it believes extending it would cause unnecessary suffering.

Step 6: Decree of Divorce:

If all conditions are met and there are no disagreements on alimony, maintenance, property, or child custody, the court issues a decree of divorce, legally ending the marriage.

Rights and Duties of Spouses during Divorce

There are certain rights and duties which are mandatory to be followed to ensure a fair and equitable process of divorce. These are:

Rights of Spouses:

Right to Fair Division of Property:
Each spouse is entitled to a fair division of marital property and assets accumulated during the marriage.
Right to Maintenance and Alimony:
A spouse who is financially dependent may be entitled to receive maintenance or alimony to support themselves after the divorce.
Right to Custody and Visitation:
If children are involved, each parent has the right to seek custody or visitation rights, based on the best interests of the child.
Right to Privacy:
Spouses have the right to privacy regarding personal information and sensitive matters discussed during the divorce proceedings.

Duties of Spouses

Duty to Disclose Financial Information:
Both spouses must provide full and honest disclosure of their financial status, including income, assets, and liabilities.
Duty to Cooperate in Custody Arrangements:
Spouses must cooperate in creating and adhering to custody and visitation arrangements that are in the best interests of the children.
Duty to Maintain Support Payments:
If ordered by the court, a spouse must make timely maintenance or alimony payments as specified in the divorce decree.
Duty to Comply with Court Orders:
Both spouses are obligated to comply with all court orders and decisions related to property division, custody, and other aspects of the divorce.
Duty to Act in Good Faith:
Spouses are expected to act honestly and in good faith throughout the divorce process, avoiding deceit or manipulation.
Duty to Respect Confidentiality:
Both parties should respect the confidentiality of sensitive information and discussions that occur during the divorce proceedings.

Maintenance and Alimony Provisions

Hindu Marriage Act, 1955 covers the provisions of financial help to either of the spouses by looking at the circumstances like financial status, age, health, etc. Section 24 and 25 of the Act deals with Maintenance(temporary financial support during proceedings or for a specified period) and Alimony(permanent financial aid which is given to help maintain a dignified life) which are:

Types of Maintenance:

Interim Maintenance: A temporary financial support provided to a spouse when the divorce proceedings are pending. The purpose of this is to cover all urgent needs and expenses of either spouse until the decision is made.
Permanent Alimony: A long-term financial support awarded after the divorce is finalised. The purpose is to ensure the financial status of the dependent spouse after the divorce.

Key Provisions:

Section 24: Maintenance Pendente Lite and Expenses of Proceedings:
- Either spouse can apply for interim maintenance and legal expenses if they do not have sufficient means to support themselves during the divorce proceedings.
- The court considers the income and needs of both spouses and gives a fair amount to be paid by the financially capable spouse.
Section 25: Permanent Alimony and Maintenance:
- The court may order permanent alimony for either spouse for which they have to give periodic payments.
- The court considers various factors, including:
  - Income and property of both spouses.
  - The conduct of the parties.
  - Other relevant circumstances, such as age, health, and needs of the spouses.
- Alimony can be modified or cancelled if there is a big change in circumstances, like remarriage or big improvement in the financial status of the receiving spouse.

Custody and Visitation rights of a Hindu Child

Child custody is the process of granting one parent the rights to care of a minor when hindu parents decide to divorce.

In India, custody is governed by The Hindu Marriage Act, 1955 (Section 26) which empowers courts to decide on custody matters, while the Hindu Minority and Guardianship Act presumes children under five should remain with the mother unless she is unable to take care of the child properly. The Guardians and Wards Act is another legal framework that does not directly address custody.

Types of Custodies

Physical Custody: Physical custody is an arrangement where a child lives with one parent, who is responsible for the child’s daily care and routine decisions. The custodial parent provides a stable home environment to the child.
Legal Custody: Legal custody is an arrangement where parents make important decisions about their child's upbringing, such as education, healthcare, and religious instruction. This type of custody can be shared between both parents (joint legal custody) or granted to one parent (sole legal custody), depending on the court’s decision.

Custody of Children above 5 years

Under the influence of Hindu Minority and Guardianship Act, 1956, and the Guardians and Wards Act, 1890, custody for children over five are given on the basis of child’s welfare and preferences. Courts focus on the best environment for the child's growth and ensuring a healthy environment.

Custody is usually awarded to mothers who are seen as natural caregivers, unless there are which circumstances suggest fathers as a fit caregivers. In some cases, custody may be granted to non-parents, like grandparents, if the child has strong connection with them or the parents are unfit.

Visitation Rights

Visitation rights are granted to the parents who are not given the custody of the child. This allows them to maintain a relationship with the child. Courts make visitation based on each case by considering factors like the child's age, schooling, and relationship with the non-custodial parent.

Courts prioritise the child’s welfare, granting visitation during holidays or weekends without disturbing their routine. If a non-custodial parent is considered harmful, visitation rights may be restricted or altogether end.

Case Laws

1. The case of Reema Aggarwal v. Anupam

In the case of Reema Aggarwal vs. Anupam, the Supreme Court ruled that a woman should receive maintenance even if the marriage is declared null and void if she entered the marriage in good faith. This decision highlights the importance of protecting the financial stability of the weaker spouse.

2. Vishnu Dutt Sharma vs. Manju Sharma

In Vishnu Dutt Sharma vs. Manju Sharma, the Supreme Court clarified that cruelty as a ground for divorce can include mental cruelty, not just physical abuse. The court recognized that psychological harm affecting a spouse's emotional well-being is valid grounds for divorce, reflecting a modern understanding of marital relationships.

Frequently Asked Questions (FAQs)

1. How can one spouse challenge a divorce decree in India?

A spouse can challenge a divorce decree by filing an appeal in a higher court within 30 days by giving legal grounds such as procedural errors or new evidence.

2. Can a spouse remarry immediately after a divorce is granted in India?

A spouse must wait 90 days after a divorce decree is granted which allows time for any appeals before legally remarrying.

References

Hindu Marriage Act, 1955.

Written by Chandra Kant Singh

Aspiring lawyer with a passion for justice and a strong foundation in organisation, communication, and problem-solving skills. Currently pursuing a B.A.LL.B. (Hons.) degree at RMLNLU, where I am actively involved in moot court and NegMed competitions. Eager to leverage my skills and academic background to contribute to a dynamic legal environment and make a positive impact on society.