By Abhijit Mishra-

Published on: August 14, 2022 at 19:48 IST

Understanding the Laws of Divorce in India and The Hindu Marriage Act, 1955.

Things Covered

1. What is Marriage? (Legal Definition)
2. What is Divorce? (Legal Definition)
3. Rights of the Women
4. Practical Approach before the Honourable Courts

Laws that would be Covered

• Hindu Marriage Act, 1955
• Domestic Violence Act, 2005
• Family Courts Act, 1984
• Section 494, 495, 496, 497 & 498A Indian Penal Code, 1860
• Dowry Prohibition Act, 1961

Who is competent to get Married? (Sec. 5 of Hindu Marriage Act, 1955

1. No Living spouse
2. Valid Consent
   1. Mental Disorder
   2. Insanity Attacks
   3. Volenti non fit injuria example – “Compromise Marriages”
3. Groom- 21 Years | Bride 18 Years
4. Prohibited Relationship (Section 3 c,d,f & g- Hindu Marriage Act 1955)
   1. Brother & Sister
   2. Relationship by half or uterine blood as well as by full blood
   3. Etc.
5. Section 12 HMA adds – “Impotency” & “Pregnancy” to make voidable marriage

Married Status ? (Sec. 7 & 8 of Hindu Marriage Act, 1955)

1. Customs and Traditions
   1. Section 3 (a) HMA

“custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family

1. Registration of Marriage
   1. Provision for registration of marriage is prescribed under Section 8 HMA
   2. Penalty for non-registration of marriage
   3. Used for Visa / Passport / Aadhar & other Documents
2. Understanding Issues
   1. Behavior Mismatch
   2. Expectations Mismatch
   3. Extra-Marital relationship | Pre- Marital Relationships
3. Family Misunderstanding
   1. Dowry Issues
   2. Family Power struggle
   3. Estate Ownership
4. Spouse Addiction Issues
   1. Alcohol
   2. Drugs
   3. Illegal Activities like gambling / criminal acts
5. Section 9 of Hindu Marriage Act, 1955
   1. Restitution of Conjugal Rights
6. Section 10 of Hindu Marriage Act, 1955
   1. Judicial Separation
7. Section 12 of Hindu Marriage Act, 1955
   1. Voidable Marriage
8. Section 13 | 13A | 13B of Hindu Marriage Act, 1955
   1. Divorce: Types of Divorce
9. Section 14 of Hindu Marriage Act, 1955 (Caveat)

Section 9 of Hindu Marriage Act, 1955

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights land the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Condition Precedent

• 1. Without Reasonable Excuse
  2. Withdrawn from the society of the other

1. Who can apply: Aggrieved party may apply
2. Rule Nisi Proceeding: Why the application should not be granted
3. Alternate Route for Section 13(1A) Hindu Marriage Act, 1955

Section 10 : Judicial Separation

Section 10 of Hindu Marriage Act, 1955

Either patty to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.

Condition Precedent for such Application

• 1. Sex outside Marriage
  2. Cruelty
  3. Desertion (2 Years)
  4. Religion Conversion / Renunciation
  5. Insanity / venereal disease
  6. Second Marriage / underage marriage etc.

Alternate Route for Section 13(1A) Hindu Marriage Act, 1955

Section 13 of Hindu Marriage Act, 1955 divided into many sub parts

• 13(1)(i)- Extra Marital Affair / Sex outside marriage
• 13(1)(ia)- Act of Cruelty (Dedicated Slide)
• 13(1)(ib)- Desertion 2 years
• 13(1)(ii)- Religion Conversion
• 13(1)(iii)- Unsound Mind / Insanity
• 13(1)(v)- Venereal Disease (HIV/ AIDS)
• 13(1)(vi)- Renunciation a.k.a Sadhu Baba / Sanyasi
• 13(1)(vii)- No information for “Seven Years”

Section 13 (1A) of Hindu Marriage Act, 1955

1. that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
2. that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
3. Alternate Mechanism a.k.a. Judicial Cheat Code
4. File a Section 9 or Section 10 of Hindu Marriage Act, 1955
   1. Either Win or Loose |
   2. Failure of other party will become a Ground of Divorce

Special Provisions under HMA

Section 13 (2) of Hindu Marriage Act, 1955

1. Another Marriage (IPC 495)
2. Guilty of Rape (IPC 376) / Sodomy (IPC 377)
3. Under Age Marriage – Consent Issue

Section 13 A of Hindu Marriage Act, 1955

1. Outside the provisions which have not been covered yet.
   1. Example – Jail Time | Kabootarbaazi

Section 13 B of Hindu Marriage Act, 1955: Mutual Consent (The Best)

Section 26 Custody of children.—custody, maintenance and education of minor children, consistently with their wishes,

1. Either of the parent can file for custody
2. Court will notice
   1. Best interest of Child
   2. Child’s preference
   3. Education for the Child
   4. Financial Strength of the Parent
3. Healthy Environment for child’s mental health
4. Alternate Remedy
   1. Section 21 of the Domestic Violence Act 2005
   2. Hindu Minority and Guardianship Act 1956

Maintenance and Alimony

1. Section 24 HMA is for the Maintenance
   1. Court awards the maintenance for the proceedings
   2. Better alternate to this section are
      1. Section 125 of the Code of Criminal Procedure 1973
      2. Section 20 of the Domestic Violence Act 2005
      3. Section 22 of the Domestic Violence Act 2005
2. Section 25 HMA- Permanent Alimony
   1. Payment for maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life
   2. Beg, Borrow & Steal – Just pay the Money

Cruelty in Marriage

1. There is no definition of Judicial Definition of Cruelty
2. Stare Decisis (Definition of Cruelty Supreme Court)
   1. S. Hanumantha Rao v. S. Ramani (1999) 3 SCC 620
   2. Mohd. Hoshan v. State of A.P (2002) 7 SCC 414
   3. Raj Rani v. State (2000) 10 SCC 662
   4. Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281
   5. Samar Ghosh vs Jaya Ghosh (civil Appeal No. 151 of 2004)
3. Basic Aspects of Cruelty
   1. Constant Nagging
   2. Misbehavior with inlaws (Parents in Laws)
   3. False frivolous complaints
   4. Defamation in the society including official working place

Cruelty: Criminal Aspects

IPC 498A

Husband or relative of husband of a woman subjecting her to cruelty.—

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

1. any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
2. harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Misuse of Dowry laws and 498A in favor of the Men

1. Rajesh Kumar & Ors v. Sate of U.P. (2017 SCC OnLine SC 821)
   1. Honorable Supreme Court laid down comprehensive directions to prevent the misuse of the provision of Section 498A, IPC.
2. Manav Adhikar v. Union of India (2018) 10 SCC 443
3. Joginder Kumar v. State of U.P. (1994) 4 SCC 260
4. D.K. Basu v. State of W.B. (1997) 1 SCC 416
5. Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
6. Basic Points
   1. FIR only after investigation
   2. No mechanical Arrest of the Men and family
   3. Arrest only after approval from DCP / SP / Magistrate
7. Section 12 – Direct complaint to the Magistrate (Usually a Women)
8. Section 18 – Protection to the women (Protection officer is Appointed)
9. Section 19 – Right of the Residence (Against Eviction Etc.)
10. Section 20 – Monetary Relief
    1. loss of earnings;
    2. medical expenses
    3. loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person
    4. Maintenance for the aggrieved person as well as her children
11. Section 22 – Compensation
12. Satish Chander Ahuja Vs. Sneha Ahuja ((2021) 1 SCC 414)
    1. Women can exercise 19(1)(a) of the Domestic Violence Act 2005 for alternate residential orders
13. Vinay Verma v/s Kanika Pasricha (CM(M) No. 1582 of 2018 | Delhi High Court)
    1. Family members can apply for injunction against residential orders against the women
14. Vimalben Ajitbhai Patel Vs. Vatslabeen Ashokbhai Patel and Others ((2008) 4 SCC

649)

• 1. Husband is the primary responsible for women and not his family members

1. Secretary, State of Karnataka and Others Vs. Umadevi and Others ((2006) 4 SCC 1)
   1. Judgment should follow logic and sympathy has no place in law even to the women.

Hindi Marriage: Jurisdiction

Section 19 of the Hindu Marriage Act mandates Petition to be filed in court where

1. Marriage was solemnized, or
2. Respondent, at the time of the presentation of the petition, resides, or
3. Parties to the marriage last resided together, or
   1. In case the wife is the petitioner her residence
4. Special Jurisdiction
   1. Supreme Court of India u/s 25 of the Code of Civil Procedure 1908 for transfer of cases Inter State
   2. High Courts of the State u/s 24 of the Code of Civil Procedure 1908 for transfer of cases Intra State

Hindi Marriage: Strict Don’ts

1. Don’t file false facts & events
   1. A good advocate will take you for a ride u/s 340 CrPC r/w 195(1)b of the Code of Criminal Procedure Code 1973
   2. Whatever you file, ensure you are able to prove it (Evidence Act)
2. Neither Opposite Counsel / Opposite party is not your personal enemy – Hence, Act professionally as an esteemed member of the bar.
3. Be factually and legally sound – Judges are not stupid, and they see through yourself.
   1. Be clear on the legal grounds of the relief / arguments
   2. Ensure you quote judgments of the Supreme Court / High Court to supplement your points (Judgments with similar facts)
4. Mediation is a good option in Marital Discord: Be reasonable and logically sound.
5. Ensure your party is well aware of the consequences.

Also Read- All about Contract of Guarantee