Posts tagged ‘Divorce’


Section 13 B of Hindu Marriage Act, 1955 provides for the relief of divorce by mutual consent between a Hindu wife and husband. The conditions for filing of this petition are:

1) A Petition of this nature can be filed only after 1 year from the date of marriage.
2) Parties should have been living separately for a period of 1 year or more.

Once the Petition is filed, parties have to wait for 6 months before the court can take up further proceedings in the matter. The period of 6 months cannot be dispensed by the family court or High court. The same can be done only by the Supreme Court. Court needs to give the decision on the matter before 18 months from the date of filing of the petition.

The Petition for a mutual consent divorce needs to be filed before the jurisdictional family court where:
a. The parties got married or
b. The parties last resided together as husband and wife.
The presence of both parties will be required at the time of filing and some other important hearings.

The basic documents required for the process includes:
1) Marriage photo.
2) Marriage Invitation card.
3) Marriage Certificate.
4) Address Proof of parties.

On an average it will take about 6-8 months for the conclusion of the mutual consent divorce process.


1. This Act protects the rights of Muslim Women who have been divorced by their husbands or who have obtained the divorce from their husbands.

2. A divorced Muslim women is entitled to reasonable and fair provision and maintenance within Iddat period from her former husband. Similarly the divorced Muslim woman is entitled to all the properties given to her before or at the time of marriage or after her marriage by her relatives, friends, husband, relatives of husband and friends of the husband.

3. A Divorced Muslim Women is also entitled to an amount equal to the sum of dower agreed to be paid to her at the time of her marriage or at any time there after.

4. If a divorced Muslim Women herself maintains the children born to her before or after her divorce, the husband shall make her a reasonable and fair provision and pay her maintenance for 2 years from the date of birth of children.

5. If the husband fails to discharge his duties under this act, the wife is entitled to make an application to jurisdictional magistrate for suitable orders. If a husband fails to comply with the order of the magistrate, the magistrate is empowered to sentence such person to an imprisonment for a term which may extend to 1 year.

6. A magistrate can also pass necessary orders of maintenance, against the relatives of divorced Muslim Women who has not remarried and who is not able to look after herself. The relatives may include children, parents etc. If a divorced woman has no relatives the magistrate can order the state Wakf board to pay such maintenance.

In Daniel Latif –vs- Union of India, AIR 2001 SC 3958 the Supreme Court held that the husband is duty bound to give maintenance to the divorced wife and she is entitled for lifelong post divorce maintenance within iddat period


Cruelty is one of the grounds for a divorce petition under Hindu Marriage Act, 1955 and various other matrimonial laws of India. The Supreme Court of India through various decisions has explained the concept of cruelty.

1. In N.G. Dastane(Dr) vs S. Dastane reported in (1975)2 SCC 326, Supreme court has observed that conduct charged as cruelty should be of such a character as to cause in the mind of the Petitioner, a reasonable apprehension that it is harmful or injurious to live with the respondent.

2. In V. Bhagat vs D. Bhagat, reported in (1994)1 SCC 337, the Supreme Court held that the mental cruelty must be of such a nature that the parties cannot be reasonable be expected to live together. While arriving at such conclusion regard must be had to the social status, educational level of the parties, the society they move in and all other relevant facts and circumstances.

3. In the case of Savithri Pandey vs Prem Chandra Pandey reported in (2002)2 SCC 73, the Supreme Court observed that cruelty must be distinguished from the ordinary tear and wear of the life. It cannot be decided on the basis of the sensitivity of the Petitioner. But the same has to be adjudged on the basis of course of conduct , which would be in general, be dangerous for a spouse to live with each other.

4. In Parveen Mehta vs Indrajit Mehta (2002)5 SCC 706, the Supreme Court observed that the approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other.

5. In the case of A. Jayachandra vs Aneel Kaur (2005)2 SCC 22 the apex court held that for physical cruelty there can be tangible and direct evidence but in mental cruelty there may not be direct evidence. When there is no direct evidence, courts are required to probe into the mental process and mental effect of incidence that are brought out in evidence.

6. In the case of Vinitha Saxena vs Pankaj Pandit (2006)3 SCC 778 the Supreme Court held that what constitutes mental cruelty will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and deleterious effect of it in the mental attitude, necessary for maintaining a conducive matrimonial home.

7. In the case of Samar Ghosh vs Jaya Ghosh (2007)4 SCC 511 the Supreme Court observed that no uniform standard can be laid down for guidance with regard to mental cruelty. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a lengthy period, where relationship has deteriorated to an extent that, the wronged party finds it extremely difficult to live with other party any longer.

8. In the case of Naveen Kohli vs Neelu Kholi (2006)4 SCC 558, the Supreme Court held that Public Interest demands not only that the married status should as far as possible, as long as possible and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

9. The honorable High Court of Karnataka in the case A. Anil Kumar vs Vanishree A, reported in ILR 2009 Kar 3028, laid down the following principles with regard to the concept of cruelty:-

a. On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

b. On comprehensive appraisal of entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably put up with such conduct and continue to live with other party.

c. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

d. Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger of apprehension must be very grave, substantial and weighty.

e. Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

f. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

g. The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with other party any longer, may amount to mental cruelty.

10. The Supreme Court  in the case of Shobha Rani vs Madhukar Reddi  reported in (1988)1 SCC 105 has held that:

a. Cruelty may be mental or physical, intentional or unintentional. If it is physical, it will be easy for the court to determine it. If it is mental, the problem presents difficulty. It is a matter of inference to be drawn by taking into account the nature of the conduct and its effects on the complaining spouse. There may be occasions where the conduct itself is bad enough and it amounts to cruelty; in such cases the impact of such conduct need not be considered.

b. There has been a marked change in the life around us. The courts should not search for standards in life, while appreciating mental cruelty. Matrimonial duties and responsibilities are of varying degrees from house to house and from person to person. A set of facts, stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may depend upon the life style of the parties, their economic and social conditions, their cultural and human values etc.

c. The categories of cruelty are not closed, each case may be different. New types of cruelty may crop up in new cases. The conduct which is complained of as cruelty by one spouse may not be so, for the other spouse. Intention is not a necessary element in cruelty.

11. In Romesh Chander vs Savithri AIR 1995 SC 851, the Supreme Court held that if the marriage is dead and there is no chance of being retrieved it is better to bring it to an end.

12. The honourable High Court of Karnataka in the case of Hoovamma  vs Vishwanth reported in  ILR 2009 Kar 4193 has held that.

a. Cruelty is not defined under the Hindu Marriage Act. It is impossible to give a comprehensive definition to cruelty. It has been used in relation to human conduct or human behaviour.

b. If the spouses are living separately for a considerable time and there is no love lost between them, the marriage is dead emotionally and practically and there is no chance of being retrieved. Continuance of marital relationship for name sake itself constitutes a cruelty of mind. In such circumstances, trying to find out who is the cause for such sorry state of affairs would be an exercise in futility


1) How are children affected by Divorce?
Ans) A Divorce cuts off the relationship between the husband and wife. But no Divorce order can cut off the relationship between the parents and the children. Socially and emotionally, children of divorced parents will have trauma and injury. Irrespective of the custody of children with one parent after Divorce, the other parent will have an access and visitation rights over the children.

2) How to file for a Divorce?
Ans) A Divorce needs to be filed in a jurisdictional family Court, preferably with the assistance of an expert family lawyer. The following points need to be kept in mind before filing of a Divorce petition.
a)Whether the particular court has jurisdiction.
b) Whether any waiting period is there before approaching the court.
c) Whether the petition is under the correct provision of Law.
d) Whether sufficient grounds are urged in the petition.
e) Whether sufficient documents are produced along with the petition.
f) Whether the prayer is properly worded.

3) What are the documents required for a Divorce petition?
Ans) The following are the basic documents required for a Divorce petition in India:
a) Marriage photo
b) Marriage invitation card
c) Marriage certificate (if the same is registered)

4) How long does it take to get a Divorce in India?
Ans) A mutual consent Divorce petition may take about one month if the waiting period of 6 months is dispensed by court. If waiting period is not dispensed, it may take about 7-8 months.
             For a contesting Divorce petition, it may take about 1-1 ½   years to conclude. An exparte Divorce proceeding may conclude within 6-9 months.

5) What is an exparte Divorce petition?
Ans) On filing of a Divorce petition, the Court will issue a notice to the other party for appearance. After the receipt of the notice, if the other side does not appear in the court, the court declares the matter as exparte. Thereafter the matter will proceed purely in a one sided manner and the Court will pass the decree accordingly.

6) How can I find out if a Divorce has been filed?
Ans) By enquiry in the family register of a family court one can find out whether the Divorce has been filed or not.

7) How long should I wait to remarry after Divorce?
Ans) One has to wait for the appeal period to remarry after the decree of Divorce. In India the appeal period is normally 90 days.

8) Are fathers entitled for the custody of children during Divorce?
Ans) A Divorce proceeding normally ends with a decision on the custody of the children. With whom the welfare of the children is best protected, is the yard stick that decides the custody of the children. As per most of the Indian personal Laws, father is the natural guardian of the minor. However mothers are usually preferred by Indian Courts to give the custody of the children. However this does not rule out entitlement of the father to get the custody of the children in appropriate cases.

Divorce among Hindus

In this article let us have a bird’s eye view of the procedure and formalities for Divorce among Hindus. Section 13 of the Hindu Marriage Act 1955, deals with the manner of Divorce among Hindus.

A Hindu husband or wife can apply for divorce of his or her marriage to a Family Court on grounds of cruelty, desertion, and mental disorder of/from part of his or her partner. Further conversion to other religions, adultery, venereal and leprosy diseases in the partner are also grounds for divorce. If the partner is not heard of being alive for 7 years or more, renunciation of the world by joining any religious order etc are also grounds for a decree of divorce. The act also gives few additional grounds for wife such as acts of rape, sodomy and bestiality by husband, marriage during minority etc.

No petition for divorce can be filed before the lapse of one-year after the marriage. The petition shall be filed before the jurisdictional Family Court by the party aggrieved.

In tune with the emerging social changes, the act also provides for divorce by mutual consent of the parties. In fact there is a great increase in the number of cases of this nature filed, particularly in metro cities. The parties to a marriage can obtain an order of divorce by mutual consent, on the ground that they were living separately for a period of one year or more, and they have been not able to live together. The court may, in its discretion, not earlier than 6 months of the presentation of the petition and not later than 18 months after the presentation of the petition, pass a decree of divorce declaring the marriage to be dissolved.

Divorce among Christians

In an earlier article we had seen the requirements and circumstances in which a family court can grant divorce for Hindus. In this article let us analyze the grounds by which married Christians are eligible for an order of divorce.

Many of the grounds for divorce of Indian Christians are similar to that of Hindus. The Divorce Act, 1869 as amended by the Indian Divorce (Amendment) Act, 2001 guides the divorce proceedings among Indian Christians.

A marriage may be dissolved on the grounds of adultery, conversion to other religions, unsoundness of mind, suffering from leprosy, venereal diseases etc., of the opposite party. It may also be dissolved on grounds such as desertion, non-consummation of marriage, not being heard as alive for a period of 7 years, treating the partner with cruelty etc. Further a wife may file a petition for dissolution of her marriage if the husband has been guilty of rape, sodomy or bestiality.

In addition to the above, section 19 of the said act permits the husband or wife to present a petition for decree of nullity of marriage on grounds such as impotency of the partner, parties within prohibited degrees of consanguinity, partner being a lunatic or idiot, the former husband or wife of either party living at the time of marriage, obtaining consent to marriage by force, fraud etc. The jurisdictional family court after, proper enquiry and evidence may order either dissolution of marriage or decree the marriage as null and void.

Section 10-A of the said act gives the parties a revolutionary right, to get dissolved the marriage, by mutual consent.