Divorce FAQ Divorce News India

A divorce is the termination of a marriage by legal action, requiring a petition  for divorce  by one party. There are two types of divorce– fault and no-fault. A fault divorce, is a judicial termination of a marriage based on marital misconduct or other statutory cause requiring proof in a court of law by the filing party that the other spouse committed one or more acts defined by state statute as grounds for a divorce.

Both spouses can file a petition for divorce by mutual consent if the  Hindu Marriage Act or  Divorce Act is applicable for them based on their religion and registration of their marriage under the relevant law.

A new law for providing divorce under ‘no fault ‘ ground is approved and may be in force within a few months.

The most common issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney’s fees. Only state courts have jurisdiction over divorces, so the petitioning or complaining party can only file in the State in which he/she is and has been a resident or where the marriage was solemnised. Residency requirements vary by State. Under the above laws, the legal process of the divorce procedures includes a waiting period, to allow for a chance of reconciliation though an application for exemption from the waiting period can possibly be filed.

The complexities of issues involved, such as property division and taxes, may make it advisable for both parties to have expert legal and financial advice. Attorneys who practice in this area assist clients with issues of divorce, dissolution, or legal separation. They also typically handle related matters involving prenuptial agreements, spousal restraining orders and issues of child custody and support.

27.08.2010 (UNI) The Supreme Court has ruled that a divorce granted by a village panchayat is not legal and marriage can be anulled only by a competent court.

A bench comprising Justices P Sathasivam and B S Chauhan upheld the judgement of Allahabad High Court holding, ‘the High Court has rightly held that dissolution of marriage through panchayat as per custom prevailing in that area and in that community permitted cannot be a ground for granting divorce under section 13 of the Hindu Marriage Act,1955.’

‘We fully agree with the said decision for the reason that in case the appellant wanted a decree on the basis of customary dissolution of marriage through panchayat held on June 7,1997, he would not have filed a petition under section 13 of the Act.

‘Filing this petition itself means that none of the parties was of the view that divorce granted by the panchayat was legal.’ The apex court dismissed the appeal filed by the husband Mahendra Nath Yadav against the High Court judgement of October 8, 2004.

Yadav and Sheela Devi had got married on May 3, 1990. The appellant is in army and the wife is a teacher.

The wife filed the petition for maintenance under section 125 CrPC in the court of judicial magistrate, Varanasi, who directed Mr Yadav to pay Rs 400 a month as maintenance.

The husband challenged the order of maintenance contending that he has already been granted divorce by panchayat and has paid Rs 30,000 to the family of his wife and after the divorce they were no longer husband and wife and, therefore she was not entitled to get maintenance. UNI

I: The Parliament unanimously passed The Personal Laws (Amendment) Bill, 2010, which paves the way for making guardianship and adoption gender neutral. EQUALITY Women have same guardianship rights as men Finally, women will now have the same legal rights as men on guardianship and adoption of children, irrespective of their marital status. The Parliament on Saturday unanimously passed The Personal Laws (Amendment) Bill, 2010, which paves the way for making guardianship and adoption gender neutral, in all major religions practiced in the country. It will become a law soon after the President signs the bill passed by both Houses. The first amendment cleared by the Lok Sabha brings a change in the 120 year-old Guardians and Wards Act (GWA), 1890, which applies to Christians, Muslims Parsis and Jews. Rajya Sabha had cleared the bill earlier this week. According to the new position, if a couple adopts a child, mother will now be appointed as a guardian along with father. Till now, only the father was considered a natural guardian. “Amend the clause to include the mother along with the father as a fit person to be appointed as a guardian so that courts shall not appoint any other person as a guardian of minor, if either of the parents is fit to be the guardian,“ states the bill. “We want to end discrimination against women and provide them legal equality in all spheres of life,“ said law minister M. Veerappa Moily. The second amendment applies to the Hindu Adoption Maintenance Act, 1956, (applicable to Hindus, Jains, Buddhists and Sikhs). It removes the hurdle in the way of a married woman to adopt and also give a child for adoption, merely on the basis of her marital status. Till now, unmarried and divorced women, as also widows are allowed to adopt a child, but women separated from their husbands and engaged in lengthy divorce battles, were not allowed to adopt a child. This will allow a married woman separated from her husband to adopt with the consent of her husband even during divorce proceedings. However, if the husband has changed his religion or is declared of an unsound mind, no consent from the him would be required. The law ministry said once this law comes into force, mothers would have equal rights as that of the father. “She would be responsible even as a trustee of the property, in case the minor child inherits his or her share of the property,“ a senior ministry official said.

The Supreme Court on Thursday declined to interfere with a Madras High Court judgment holding that a family court in Chennai had the jurisdiction to decide the divorce case filed by Tamil actor Sukanya against her U.S.-based husband.

A Bench of Justice P. Sathasivam and Justice B.S. Chauhan dismissed a special leave petition filed by R. Sridharan, challenging the High Court judgment. In a brief order, the Bench said, “We do not find any valid ground to interfere with the High Court order. The SLP is dismissed leaving open the question of law. If the appellant has any grievance he can approach the family court. Since the application [for divorce] is pending since 2004, we direct the family court to decide the matter in four months.”

Justice Sathasivam told appellant’s counsel K.K. Mani, “The facts are against you. There are many disputed facts. Whether the appellant is a US citizen; if so, when did he acquire US citizenship are all matters which can be adjudicated only by the family court.”

Gita Rama Seshan, counsel for Ms. Sukanya, maintained that the Hindu Marriage Act would apply and the family court in Chennai would have the jurisdiction to decide the divorce application.

Justice Chauhan told counsel, “You [the appellant] have a residence in Chennai. You are visiting the place. Whether you have acquired properties are not, what your intentions are if you have acquired any property can be gone into only by the family court.”

Mr. Mani, however, maintained that the house in Chennai belonged to his father and he did not own any property. But Justice Chauhan said, “These things can’t be decided by us. Issues have to be framed and evidence has to be let in. There must be proper adjudication. But you did not allow the family court to decide anything. Even the question of jurisdiction could have been raised as a preliminary issue. But you have rushed to the High Court. Let the family court decide.”

According to the appellant, his marriage with Ms. Sukanya took place as per traditional Hindu customs at the Balaji temple in New Jersey, U.S., in April 2002. She returned to India in January 2003 and never went back.

On a writ petition filed by Mr. Sridharan — through his Power of Attorney R.V. Krishnan — challenging the matrimonial proceedings on the ground that he could not be subjected to Indian laws, a single judge and a Division Bench of the Madras High Court had held that Ms. Sukanya was entitled to file the petition in the place where she was staying.

The appellant’s contention before the Supreme Court was it was settled law that in order to apply the provisions of the Hindu Marriage Act both parties must be ‘domiciles’ of India. As the appellant was a U.S. citizen, he could not be subjected to Indian jurisdiction and face the matrimonial proceedings which were not maintainable in law.

He argued that only the Foreign Marriage Act would apply to him.

INDIAN WOMEN are facing another kind of mental and physical trauma especially in the states of Punjab, Gujarat and Haryana where incidences of fraudulent NRI marriages are on the rise. Every month hundreds of cases are being reported in the media. The National Commission for Women (NCW) receives several complaints from desperate women abroad for being duped by their NRI husbands.

There are thousands of others, languishing in their village home waiting for the call from America or Canada that never comes. NRI brides are forced to put up with lying, cheating, false promises, and unreasonable dowry demands; not to mention divorce, desertion and abduction of children. According to NCW there are nearly 15,000 women deserted by NRIs in Punjab alone. Gujarat with a substantial NRI population also has a large number of battered women in need of help. Women are especially vulnerable in foreign country often without any financial support. They have no one to turn at the time of crisis.

The decision of ministry of Overseas Affairs to appoint volunteers in countries with a high density of NRIs and PIOs to carry out check of the grooms abroad has remained just on paper. With globalisation the number of NRI-Indian marriages is on the rise. It is sometimes impossible for the bride’s parents in India to verify the credentials of the NRI grooms. What is required is some institutional mechanism in order to get some authentic information before these so called NRI marriages are finalised. Indian missions should help out with the task in conjunction with local NGOs and even come to the rescue of victims of these fraudulent marriages. Police and law enforcing agencies in India need to be more sympathetic in dealing with them. FIR reporting should be made possible for the victims from the influential families. The government needs to bring in a comprehensive regulation to ensure that all the protection accorded by the law to all Indian women with regard to -marriage, divorce, maintenance, inheritance and custody of children are applicable to victims of fraudulent NRI marriages as well

DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939                      

            (b) a decree passed on ground (i) shall not take effect for a period of six
months from the date of such decree, and if the husband appears either in per son
or through an authorised agent within that period and satisfies the Court that he
is prepared to perform his conjugal duties, the Court shall set aside the said
decree; and

(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

COMMENTS

       A mere non-maintenance for the statutory period entitles the wife to sue for dissolution:
A. YausufRawtherv. Sowmmma A.I.R. 1971 Ker. 261.

Bigamy is permitted as per Muslim Law under exceptional circumstances. The circumstances under which it is permitted also have to be taken note of. Even to have a second wife, certain conditions have to be satisfied by the husband including the financial capacity, the physical capacity and capability of treating more than one wife without discrimination and to give both of them equal conveniences and considerations in life: K. Muhamma Latheefv. Nishath A.I.R. 2004 Ker. 22 (D.B.).

A Mahomedan wife, leaving her husband voluntarily and refusing to .come back despite requests without any justifiable ground for staying away, cannot claim dissolution of marriage on the ground of her husband having failed or neglected to provide maintenance for her: Mabiya Khatun Bibiv. Shaikh Anwar AH A.I.R. 1971 Cal. 218 (D.B.).

S. 2 of the Dissolution of Muslim Marriages Act, 1939 which sets out that if the husband is suffering from a virulent venereal disease, a woman married under Muslim Law to such person shall be entitled to obtain a decree for dissolution of her marriage. Therefore, if a person suffering from the dreadful disease “AIDS”, knowingly marries a woman and thereby transmits infection to that woman, he would be guilty of offences indicated in Ss.269and270oftheI.P.Code:Xv.ZA.LR.1999S.C495.

Merely because the plaintiff wife declined to be medically examined, no adverse inference can be drawn that she was not virgo intacta’, such examination cannot unerringly establish that she was not so; hymen is usually present in a virgo intacta in some form or other, but in rare cases it is congenitally absent; the presence of hymen may not always prove non-intercourse; there is no dearth of instances of women having conceived with the hymen uninjured: Kalluvalappil v. Parayangat Veerankutty (1988) 1 Ker.L.T. 591: (1988) 2 Hindu L.R. 775: (1989) 1 D.M.C. 396.

Under S. 2(viii), the wife should prove both physical and legal cruelty to entitle her to claim dissolution of marriage: RMa Khatoon v. Mohd. Mukhtar Ahmad 1966 All.LJ. 182: A.I.R. 1966 All. 548.

It is cruelty to force a young woman, who was desirous of becoming a mother, to abort her pregnancy, when it is not necessitated to save her own life: Siddhique v. Amina (1996) 2 Hindu L.R. 415: (1997) 2 D.M.C. 260 (Ker.).

3. Notice to be served on heirs of the husband when the husband’s where­abouts are not known.—In a suit to which clause (i) of section 2 applies,—

(a) the names and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on the date of the filing of the plaint shall be stated in the plaint,

(b) notice of the suit shall be served on such persons, and

(c) such persons shall have the right to be heard in the suit:

Just want to test this CMS

Can divorce by mutual consent be granted before statutory six-month period? J. Venkatesan

New Delhi: A three-judge Bench of the Supreme Court will decide whether a decree of divorce by mutual consent can be granted without waiting for the statutory period of six months as contemplated under Section 13-B (2) of the Hindu Marriage Act.

Justices D.K. Jain and C.K. Prasad referred this issue to a three-judge Bench for determination, as in several cases the court, in exercise of its extraordinary powers under Article 142 of the Constitution (to do substantial justice), had been passing a decree of divorce by mutual consent without waiting for the six-month period. On this basis, family courts and High Courts had also been granting divorce without waiting for the period.

The need for referring the issue to a three-judge Bench arose from conflicting judgments given by two different Benches. In the first instance, taking note of a number of cases where a decree of divorce by mutual consent had been granted by various courts, it was held that only the Supreme Court in exercise of its powers under Article 142 could pass orders before the expiry of the six-month period.

However, in another judgment it was held that no court had the competence either to issue a direction contrary to law or direct an authority to act in contravention of the statutory provisions. Even while exercising powers under Article 142, the Supreme Court could not ignore the statutory provisions or exercise power merely on sympathetic grounds.

The Bench of Justices Jain and Prasad said it could be gathered that both decisions did not altogether rule out the Supreme Court exercising its powers under Article 142, yet “it would be appropriate to refer the matter to a Bench of three judges in order to have a clear ruling on the issue for future guidance.”

Accordingly, the Bench referred the issue — “whether the period of six months prescribed under Section 13-B (2) could be waived or reduced by this court in exercise of its jurisdiction under Article 142.”

In the instant case, Neeti Malviya filed a petition for transfer of the divorce case filed by her husband from a court in Karnataka to a court in Madhya Pradesh. During the pendency of the matter, it was reported that the parties had arrived at a settlement to go for divorce by mutual consent and that the husband should deposit Rs. 60 lakh in her favour. However, during a hearing it was brought to the notice of the court that there were two different judgments and the question was raised whether the six-month period could be waived in this case. It was in this context the matter has been referred to the Chief Justice of India for being posted before a three-judge Bench.

The Bench, while directing that the matter be listed for further hearing in November, said that in the meantime the parties should file a joint petition under Section 13-B for grant of divorce by mutual consent in terms of the settlement.

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