Divorce within or before One year of Marriage Possible But?

Hindu Marriage Act, 1955 governs matrimonial disputes like divorce amongst the Hindu couples in India. As today, marriages don’t come with guarantees like in past of next seven births, it can be dissolved legally by filing a petition before Family Court and getting a court decree.

Making an affidavit for the same purpose will not suffice the purpose and has no legal sanctity. So no legal status will be given to parties who remarry. The best way out is to go to court and then get legally separated.

Also Read- Divorce Appeal in Punjab Haryana High Court Chandigarh

Section 14 of Hindu Marriage Act, 1955 Clearly states no divorce petition be presented within one year of marriage but it also has exceptions and whether or not your case falls under this exception is a matter of fact. So read this post to know the law for answering below questions:

Whether divorce within 1 year of marriage possible?
Can parties take divorce before 1 year?
How to get divorce after one year of marriage?
Mutual Divorce before 1 year of marriage?
After how many months of a marriage couple file a divorce petition?

Also Read- Divorce Popular Judgments Chandigarh Panchkula Mohali Zirakpur Derabassi

Rule of section-14 of HMA, 1955

INTRODUCTION

Divorce Is Also Known As Dissolution Of Marriage. Divorce Is A Process Of Terminating A Marriage Or Marital Union. Divorce Usually Entails The Cancelling Or Reorganising Of The Legal Duties And Responsibilities Of Marriage. Thus, Dissolving The Bonds Of Matrimony Between A Married Couple Under The Rule Of Law Of The Particular Country Or State. Similarly In India, Court While Sanctioning The Divorce In A Legal Process Involve Issue Of Distribution Of Property, Child, Alimony, Parenting Time, Child Support And Division Of Debt.

Also Read- Chandigarh Panchkula Mohali Divorce Free Legal Advice

DIVORCE UNDER HMA, 1955

Until Hindu Marriage Act, 1955 Divorce Was Completely Unknown In The Hindu Marriage. In Hindu Communities Particularly In The So Called Lower Social Strata, The Practice Of Divorce Prevailed As A Custom. However With The Changing Need Of Society, The Hindu Marriage Act Was Considered And Ultimately The Divorce Aspect Also Found A Place In HMA.

WHAT DOES SECTION-14 CONSISTS AS PER LEGISLATURE

No Petition For Divorce To Be Presented Within One Year Of Marriage.

(1) Notwithstanding Anything Contained In This Act, It Shall Not Be Competent For Any Court To Entertain Any Petition For Dissolution Of A Marriage By A Decree Of Divorce,²⁸ [Unless At The Date Of The Presentation Of The Petition One Year Has Elapsed] Since The Date Of The Marriage: Provided That The Court May, Upon Application Made To It In Accordance With Such Rules As May Be Made By The High Court In That Behalf, Allow A Petition To Be Presented²⁹ [Before One Year Has Elapsed] Since The Date Of The Marriage On The Ground That The Case Is One Of Exceptional Hardship To The Petitioner Or Of Exceptional Depravity On The Part Of The Respondent, But If It Appears To The Court At The Hearing Of The Petition That The Petitioner Obtained Leave To Present The Petition By Any Misrepresentation Or Concealment Of The Nature Of The Case, The Court May, If It Pronounces A Decree, Do So Subject To The Condition That The Decree Shall Not Have Effect Until After The³⁰ [Expiry Of One Year] From The Date Of The Marriage Or May Dismiss The Petition Without Prejudice To Any Petition Which May Be Brought After The³¹ [Expiration Of The Said One Year] Upon The Same Or Substantially The Same Facts As Those Alleged In Support Of The Petition So Dismissed.

(2) In Disposing Of Any Application Under This Section For Leave To Present A Petition For Divorce Before The³² [Expiration Of One Year] From The Date Of The Marriage, The Court Shall Have Regard To The Interests Of Any Children Of The Marriage And To The Question Whether There Is A Reasonable Probability Of A Reconciliation Between The Parties Before The Expiration Of The³³ [Said One Year].

Also Read- All popular judgments of Indian Courts of Divorce within One year of marriage on IndianKanoon.org

GENERAL RULE OF SECTION-14 OF HMA, 1955

Any Court Is Not Competent To Entertain Any Petition For Dissolution Of Marriage Unless One Year Has Elapsed Since The Date Of Marriage From The Date Of Presentation Of Petition.

EXCEPTION TO THE GENERAL RULE

As Per The Provisio Of Section-14(1) Of HMA, 1955 That In Accordance With The Rules As May Be Made By High Court, The Principle Court May, Upon The Application Made To It, Allow Leave To Present The Petition Before The Elapsed Of One Year Of Marriage On The Ground That The Case Is One Of Exceptional Hardship To The Petitioner Or Of Exceptional Depravity On The Part Of The Respondant.

Also Read- All You Need to Know About Divorce in India

EXCEPTION TO THE EXCEPTION HEREIN PROVIDED UNDER THE SAME PROVISION

If It Appears To The Court At The Hearing Of Petition That The Petitioner Obtained Leave To Present The Petition By Any Mis-Representation Or Concealment Of The Nature Of Case. Then Court May, If It Pronounce A Decree, Do So Subject To The Condition That The Decree Shall Not Have Effect Until After The Expiry Of One Year From The Marriage Or May Dismiss The Petition Without Prejudice To Any Petition Which May Be Brought After The Expiration Of Said One Year Upon The Same Or Substantially The Same Facts As Those Alleged In Support Of The Petition So Dismissed.

Also Read- Mutual Consent Divorce Procedure for Nri’s

CANCELLATION OF LEAVE TO PRESENT PETITION FOR DIVORCE BEFORE ONE YEAR IS DISCRETIONARY NOT MANDATORY

Statute gives court a discretionary power, whether to grant leave for presentation of petition of divorce before one year or cancel to grant it. It will depend upon the gravity of the case. Court must be very cautious to while examine the application for granting leave to present petition of divorce before one year. Court must consider the grounds of exceptional hardship very cautiously upon which the applicant rely.

Also Read-File Divorce Online in India

Smt priyanka maity vs. shri sabyasachi maity [14 may,2012 calcutta H.C]

Whether grant of leave of presentation of petition by principle court u/s-14 is justified or not?

Facts;-

The husband contented in his petition before principle court than soon after the marriage trouble started. The wife started mis-behaving with respondent party & relatives of him & also refused to cohabit with the opposite party during honeymoon. The wife is having hyper thyroid which was not revealed prior to the marriage and she is also having illicit relationship and continued with such relationship. The husband expressed apprehension about his security and claimed that living with her would be dangerous and might cause serious injury and harm. The wife left the matrimonial home after a month of marriage resulting in cruelty upon respondent. She misbehaved with the parents of opposite party.

On a bare reading of section-14 of HMA,1996, it appears that legislature has consciously given a right to either of the spouses to make an application for divorce before one year has elapsed since the date of marriage if it is established that the case is one of exceptional hardships to the petitioner or exceptional depravity on the opposite party. Principle court allow the leave in this case.

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Held;-

In this revision petition, through wife, Calcutta High court observed that grounds made out in the application under section-14 of said Act Prima facie makes out a case of exceptional hardship in order to attract section-14 of HMA.

It is needless to mention in considering such an application the possibility of reconciliation is the most important factor but having regard to the averments made in the said petition & from the pleadings, the court felt that leave should be granted to file the divorce petition prior to the expiry of period of one year. Moreover no child is born out of marriage, such exercise of discretion by the judge does not suffer from any illegality or material irregularity.

Accordingly the exercise of such discretion in permitting to file the said divorce petition few days before the expiry of one year does not appear to be perverse & unreasonable.

Also Read- Interim Maintenance Under Divorce Act

Another Bombay high court case of Mr. X vs Mrs. Y [2010], court considered the said section and held that a defect in the nature of leave granted by court is a mere irregularity which the trial court may not act upon. The relevant observation of bench are reproduced below;-

It is obvious from a bare reading of the section that the petition can be presented before the expiry of one year from the date of marriage, by obtaining leave of the court. In any case, the proviso suggests that a decree obtained within one year on the basis of a defective bone, even one obtained by misrepresentation does not invalidate the decree ipso facto; but the court has a discretion to order that the decree shall become effective after a year. A defect in the nature of leave granted by court is a mere irregularity which the trial court may not act upon.

It is true that section-14 has been enacted with the object of discouraging young spouses from taking recourse to legal proceedings for divorce in a frivolous and irresponsible manner, however, the section provides two exceptions to the hands of the respondant. It is for Ld judge, who hears the application to decide as per the circumstances whether prima facie a case of exceptional hardship or depravity has been made out.

Also Read- Latest Supreme Court Judgment on Validity of Marriages

WHAT DOES EXCEPTIONAL HARDSHIP OR EXCEPTIONAL DEPRAVITY CONSISTS

The said Section does not define exceptional hardship or exceptional depravity. However, the following observations of Denning LJ in Bowman vs. Bowman can be of some assistance & guidance and it is reproduced hereinbelow:

‘The answer depends on the use of the word ‘exceptional’. This involves an inquiry into the degree of depravity alleged or the degree of hardship said to be suffered – an inquiry, which it is plain, may prove to be a difficult task …. The only cases in which the question arises are, of course, those of adultery or of cruelty. If there is nothing more than adultery with one person within a marriage that may be considered ordinary depravity. It may not involve exceptional hardship on the innocent spouse. If, however, the adultery is coupled with other matrimonial offences, eg, if a husband not only commits adultery, but also deserts his wife in favour of another woman, or if he is cruel to her, thus causing her not only distress by his adultery but also injury by his violence, then, even if his offence cannot be stigmatised as exceptional depravity on his part, nevertheless, it does not involve exceptional hardship suffered by the wife. Even when adultery is not coupled with desertion or cruelty, it may be committed in such aggravating circumstances as to show exceptional depravity, and, even if the adultery is not coupled with another matrimonial offence, nevertheless, its consequences may involve exceptional hardship to the applicant as, for instance, when a wife as a result of her adultery has a child by another man so that the husband if he took her back would have to maintain another man’s child. The husband who commits adultery within a few weeks of marriage, or who commits adultery promiscuously with more than one woman, or with his wife’s sister, or with a servant in the house may probably be labeled as exceptionally depraved. Cruelty again, by itself is not exceptional but if it is coupled with aggravating circumstances as for instance drunkennes and neglect or if it is exceptionally brutal or dangerous to health, then, even, if it does not evidence exceptional depravity on the part of the respondent, it does, at least, cause exceptional hardship to the applicant. If it is coupled with perverted lust, it shows exceptional depravity on the part of the proposed respondent. One really important consideration in all these cases is to see whether there is any chance of reconciliation. On this point it is most material to inquire what the applicant has already done to try to make the marriage a success or to become reconciled. If the court is not satisfied that all that is reasonable has been done in his respect, it may well dismiss the application.’