Chandigarh Panchkula Mohali Divorce Free Legal Advice

Last Updated on April 6, 2020 by Legalseva.net

Divorce means dissolution of marriage. The term ‘Divorce’ comes from the Latin word ‘divortium’ which means ‘to turn aside’, ‘to separate’. Under Old Hindu Marriage this word was forbidden and not considered the concept of divorce in any manner because at that period, Hindu Marriage taken as a sacrament in nature and it is a religious ceremony. These were the points which make it unbreakable relation.

Divorce was not a part of the Hindu Customs and the views are:-

According to Manu, the husband and wife cannot be separated and their marital tie cannot be broken.

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Later on the concept of divorce came in the pictures, and according to Arthashastra, marriage can end if dissolved by mutual consent and should be unapproved marriage. But Manu was not in favor of this concept of the dissolution. Because according to Manu, the only way to dissolve a marriage is the death of one of the spouse.

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With passage of time, a concept of divorce arose among Indian society as to revolt against the patriarchy and the right of divorce to women against harsh nature, cruelty and forced obligation of marital lives. So, the provision related to the concept of divorce was introduced in the Hindu Marriage Act, 1955. In this provision, the divorce defines as dissolution of marriage. For the welfare of society, the divorce is permitted in marriage only for a grave reason. Divorce is the legal cessation of a matrimonial bond. Divorce put the marriage to an end and the parties cease to be husband and wife, and are free to go their own ways.

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The matrimonial causes, which dissolve the marriage in real sense did not exist in Hindu Law before 1955, although some reliefs mention in respect of marriage could be obtained under general law.

Divorce introduced in Hindu Marriage Act 1955 and the ground of divorce given in section 13 of Hindu Marriage Act, 1955. Under Hindu Law, divorce does not take place unless it has been granted by a court. So in Hindu Law court has a important role in dissolution of marriage. After 1955 Act many amendments was done and that are:-

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In 1964, Section 13(1-A) has been inserted 2 clauses under which, non-resumption of cohabitation for 2 years or upwards after the decree was made for Judicial Separation and Restitution of Conjugal Rights, a ground of divorce. This is the modification of clauses (viii) and (xi) of Section 13 of the Hindu Marriage Act 1955. After this amendment, either party to the

marriage can prefer such petitions Section 13(1-A) introduced Breakdown Theory in the Hindu Marriage Act 1955.

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Before passing of the Amendment Act 1976, the grounds for judicial separation and divorce were different. But the Amendment Act 1976 makes the grounds same for judicial separation and divorce both. In this amendment also reduced the time limits from 2years to 1year in Section 13(1-A) of Hindu Marriage Act 1955. The original provisions of the Hindu Marriage Act relating divorce have been liberalized by the Amendment Act 1976. It also added a new ground that divorce by mutual consent of the parties has been made available as a matrimonial relief under the Hindu Marriage Act 1955. In this amendment also added a new Section 13-A in the Hindu Marriage Act, 1955. Divorce in Hindu Marriage Act, 1955 originally based on the fault theory in Section 13(1) on which, either the husband or the wife could sue for divorce. In the Amendment Act 1976 has inserted two additional fault grounds of divorce in Section 13(2) on which Hindu wife alone could sue for divorce.

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Divorce, after introduced in Hindu Marriage Act 1955, it become a important point in matrimonial relation and divorce decree passes by court for a valid divorce, it brings an end to the matrimonial alliance of spouses and terminates all the marriage. And not only separation of husband and wife, it also involves the division of property, assets and the issue of custody of child.

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For taking any step, there is a procedure. In the same way for taking divorce, there is also a Divorce Procedure. Every religion has their divorce procedures and laws in India. So here, we only deal with Divorce Procedure in India under Hindu Law.

Divorce Procedure depend upon the divorce types and under Hindu Law, divorce classified into two types:-

1. Mutual Divorce.
2. Contested Divorce.

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MUTUAL DIVORCE:-Mutual divorce define in Section 13-B of Hindu Marriage Act. In Mutual divorce, both the parties are mutually agree and express their consent for their separation from each- other. And the only two requirements for filling this divorce and that are:-

1. Mutual Consent
2. They have to live separately for at least 1 year.

CONTESTED DIVORCE:-When the divorce is taken by either parties it is termed as a Contested Divorce. And this divorce define in Section 13 of the Hindu Marriage Act 1955, there provides the grounds on which Contested divorce are filled and that grounds are cruelty, conversion of religion, unsound mind, communicable disease or either spouse is unheard of more than seven years.

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Ground for obtaining Contested divorce:-

1. Adultery- Either of the spouses involved in sexual relation with someone out of their wedlock.
2. Cruelty- Either of the spouses treat another with cruelty.
4. Religion Conversion.
5. Mental Disorder.
6. Communicable decease and leprosy.
7. Spouse not heard for more than 7 years.
8. Renunciation of world.

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Extra grounds for divorce.

1. Husband guilty of rape, sodomy or bestiality.
2. Wife was married before the age of 15 years.
3. When a decree of maintenance passed by court and cohabitation not resumed.

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PROCEDURE FOR A CONTESTED DIVORES:-

The petition can be filed by either of the spouses in any court of competent jurisdiction based on the reason provided in the section- 13 of the Hindus Marriage Act for contested divorce.

Steps for filing for a Contested Divorce In India-

STEP 1- File a petition clearly stating the facts and grounds for seeking divorce in family court through a lawyer.

STEP 2- The court will scrutinize the petition and if it decide to further move with the petition, a notice will be send to other party to appear on certain date with his/her lawyer.

STEP 3- A mediation will be carried out and if it fails the court will continue towards divorce proceedings.

STEP 4- Both the parties must appear on a fixed date to record their statement, submit  evidence, get cross-examined and witnesses produced before the court, if any. Their counsels will present their final arguments.

STEP 5- The court as may think fit will decide the final date of verdict space and pass a divorce decree on the same. However the aggrieved party can appeal within 3 months from the passing of such order.

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Documents required for Contested Divorce-

1. Resident proof of both husband and wife.
2. Marriage Certificate.
3. Documents related to finances of both husband and wife.
4. Documents proving the ground on which divorce petition is filed.

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Ground for obtaining Mutual divorce:-

After the solemnization of marriage, the husband and wife both by mutual consent and agreement decided to end their wedlock. So they can file for divorce by mutual consent.

Mutual consent can also be given where love and affection towards each other in the wedlock no more established, both husband and wife can file for divorce in the family court.

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PROCEDURE FOR A MUTUAL DIVORES:-

Following is the procedure to file for mutual divorce in India-

STEP 1- Drafting of petition clearly stating the reason for seeking the divorce, agreed by both the parties.

STEP 2- A petition should be jointly filled by both the parties in the court.

STEP 3- The court after scrutinizing the fact will pass on the order of recording of the statement on oath.

STEP 4- After this a period of 6 months will be allotted to the parties in hope of their reconciliation.-First Motion.

STEP 5- After the period of 6 months, if no reconciliation, both the parties should appear for final hearing before the court.-Second Motion.

STEP 6- If no reconciliation between the parties the court on final hearing will pass the divorce decree dissolving the marriage.

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Documents required for Mutual Divorce-

1. Residence proof of husband and wife.
2. Marriage Certificate.
3. Photograph of husband and wife.
4. Proof of unsuccessful reconciliation during period of 6 months.
5. Proof of non-cohabitation of spouses for more than 1 year.
6. Details of income and financial statement of husband and wife.
7. Family background of both.
8. Detail of property and assets owned.

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Where a petition of divorce can be filled in India?

According to Section- 19 of Hindu Marriage Act, 1955, the petition for divorce can be filled in District Court within the limits of whose ordinary civil jurisdiction-

1. Marriage was solemnized, or
2. Either of the parties have resided, or
3. The parties to the marriage last resided together, or
4. If wife being the petitioner, where she residing on the time of the presentation of the petition (in case of desertion or husband has not being heard of).

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Rest for case specific advice, one may contact best/top Expert Matrimonial Lawyer in case of Marriage/Divorce Disputes amongst the married couples in Chandigarh Panchkula Mohali Zirakpur Derabassi Kharar Baltana

This post is written Srishty Jaiswal.

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