A divorce is a legal process to dissolve or terminate a marriage. There are different species of divorce such as fault divorce, no-fault divorce, divorce by mutual consent and irretrievable breakdown of a marriage. The problems related to divorce procedure in India can be reduced when both parties agree to dissolve their marriage amicably. Even when there is no mutual consent of the parties, problems can be avoided with the help of the best divorce lawyer. Our proficient divorce lawyers in Chandigarh are well versed with the pros and cons of the divorce and associated procedure and therefore guide the client accordingly.
A contested divorce will demand more effort and time as well. Because the matter needs to be brought to a decision where both the parties agree at various issues i.e., maintenance, alimony, child custody, property distribution, asset distribution, etc. Our team of diligent and trusted lawyers in Chandigarh for divorce matters analyze the matter thoroughly and then if there is any chance of reconciliation, we endeavor for that too.
Even though the terms ‘no-fault’ divorce and divorce by ‘mutual consent’ are often used interchangeably, in India, both have different meanings as the latter is valid and recognized and the former is not. The concept of no-fault divorce is prevalent in the western countries, whereby a spouse can seek divorce without the consent of the other spouse. A no-fault divorce means a type of divorce in which the spouse who’s seeking for divorce does not have to establish any fault on the part of the other spouse. The most common ground for a no-fault divorce is “irreconcilable differences” or an “irretrievable breakdown of the marriage.”
The concept of no-fault divorce is not valid in India. Indian law, under the Hindu Marriage Act, 1955, only recognizes two kinds of divorce, i.e. fault divorce under Section 13 and divorce by mutual consent under Section 13B of the Act.
However, in certain cases, the Supreme Court can exercise its inherent powers under Article 142 of the Constitution and dissolve a marriage on the ground of irretrievable breakdown of a marriage. But, it should be noted that the ground of irretrievable breakdown of a marriage is not available to any High Court or lower court but is the domain of the Supreme Court as Article 142 of the Indian Constitution gives the Supreme Court the power to pass an order that it deems necessary to provide complete justice. Even though the Law Commission, in its reports in 1978 and 2009 has recommended the Centre to incorporate irretrievable breakdown as a ground for divorce, there has been no action. Therefore, it is the Supreme Court, which has time and again invoked Article 142 to grant a divorce on the said ground even though existing laws do not recognise the same.
Divorce by Mutual Consent
A couple can mutually decide to dissolve their marriage under Section 13B of the Hindu Marriage Act, 1955. The consent of both parties is a key to this provision; therefore, if one or the other does not cooperate, the divorce cannot be granted. Our experienced divorce lawyers in Chandigarh have been serving national and international clients to bring their dead marriage to an amicably end with the help of uncontested divorce. Even if both the parties have their consent for the dissolution of marriage, the help of an expert divorce matter lawyer is a must to navigate the procedure without hassles.
Fault divorce: Section 13 of the Hindu Marriage Act, 1955
Section 13 of the Hindu Marriage Act, 1955, is based on the fault theory of divorce. The fault theory of divorce envisages that a marriage can only be severed if one of the spouses has committed a matrimonial offence. Under the fault theory, guilt has to be proved and divorce Courts are presented with concrete instances of human behaviour that brought the institution of marriage into disrepute. The contested divorce under Section 13 of the Act lays down grounds on which a spouse can seek a divorce; these grounds are:
It involves inflicting personal injury or physical violence or acts or omissions of such character as to destroy the peace of mind or impair bodily or mental health of a person upon whom inflicted or be such as to destroy the objects of matrimony. You would require an opinion of our seasoned divorce lawyers to identify the acts and omissions which can be termed as cruelty under the Act.
Halsbury’s Laws of India defines desertion as a “total repudiation of the obligation of marriage”. It is an act by which a spouse abandons and forsakes, without justification, or willful failure without just cause to provide for the care, protection or support of a spouse. If your spouse has not cohabited with you for a period of two years or more, then the divorce lawyers in Chandigarh can petition for divorce under this ground.
Adultery is an act of voluntary sexual intercourse of a married person with a person other than his/her spouse. Although adultery is no longer an offence under the Indian Penal Code, 1860, it still remains a ground for seeking divorce. Considered as a grave matrimonial offence, adultery is one of the major grounds for seeking divorce.
Conversion of religion
Conversion refers that a person has willingly surrendered/relinquished his or her religion and adopted another religion. This is one of the grounds of divorce, given that such a conversion was done without the permission of the non-converting spouse. Conversion of religion is a ground of divorce under the Act.
Incurable disease such as leprosy
The Parliament has passed the Personal Laws (Amendment Bill), 2018, which seeks to remove leprosy as a ground for divorce. Leprosy is no longer a ground for divorce as it is now a curable disease as against the earlier notion of it being incurable.
Unsoundness of mind
Unsoundness of mind is a term referring to someone who from infirmity of mind is incapable of managing himself or his affairs. It exists where there is an essential deprivation of the reasoning faculties, or where a person is incapable of understanding and acting with discretion in the ordinary affairs of life.
Venereal or sexual disease(s)
Venereal diseases are identified with sexual intercourse and are transmittable via sexual intercourse. Therefore, if either of the spouses if suffering from a venereal disease, then it is ground of divorce.
Renunciation of the world by either of the spouse on religious or spiritual grounds
When one spouse decides for the renunciation of the world and his family life, then the other spouse is at the liberty to approach the court for divorce as the party who has renunciated the world is considered as civilly dead.
Presumption of death
Based on the ‘Enoc Arden doctrine’, it implies that a person left his/her spouse under such circumstances and for such a period of time as to make the other spouse believe that he/she is dead. Therefore, if a spouse’s whereabouts are unknown for a period of seven years or more, he/she is presumed to be legally dead.
Additional grounds for divorce claimable available to the wife under Section 13(2) of the Act:
i. Husband is guilty of rape, Bestiality and/or Sodomy;
iii. An option of puberty (repudiation of marriage).
No resumption of cohabitation between the spouses for a period of one year after the judicial separation decree was passed; and
No restitution of conjugal rights between the spouses for a period of one year after a decree of restitution of conjugal rights was passed.
How to establish jurisdiction for the petition for a divorce petition?
Section 19 of the Hindu Marriage Act, 1955 outlines the provision concerning the jurisdiction of a court to entertain a petition under the Act. It sets out the following jurisdiction:
- Where the parties were married;
- Where the parties last resided together;
- Where the wife is presently residing; and
- Where the petitioner is residing if the respondent is living outside the territory of India and has not been heard of being alive for seven years or more.
However, as per Section 14 of the Act, no Court can entertain a petition of divorce within one year of the marriage. In contested type of divorce, one party who is seeking divorce will file the petition with the help of a divorce advocate and then after receiving the notice, the other party will reply to the divorce petition.
When there are disagreements on various issues, protracted divorce proceedings in India is really a matter of concern, especially the contested one. Therefore confusion regarding how long does contested divorce take is obvious. Nevertheless when the divorce lawyer one has picked is having expertise and flair in the matters, the matter can be brought to a desirable end without stretching it much.
Condonation of Matrimonial Offence(s)
Condonation is the conditional forgiveness of a matrimonial offence committed by a spouse, either by means of continuance or resumption of marital cohabitation that would have otherwise constituted a cause of divorce; the condition being that the offence shall not be repeated. Condonation of the matrimonial offence constitutes a valid defence and favours the respondent’s spouse because voluntary overlooking implies forgiveness as if the was never committed. Therefore, if a spouse condones the acts considered as matrimonial offence then he/she cannot take such grounds for divorce. In order to avoid these issues, contacting expert divorce lawyers is a must.
Connect with Tri-City’s experienced divorce lawyers in Chandigarh to get the much-needed help in order to find the best alternative for yourself.