Monday, 7 February 2022

Divorce laws

 

INTRODUCTION


 In Ancient India, separation was obscure to general Hindu law as marriage was viewed as insoluble association of the couple . In Modern India Hindu Marriage Act, 1955, divorce was mainly based on fault theory . The theory of fault includes 9 grounds for divorce according to section 13(1), for both the husband and a wife to seek a divorce .

Concept Of Divorce


As we know that in ancient India there no such type of concept exists. Manu announced that a spouse can't be delivered by her significant other either by deal or by deserting, suggesting that the conjugal tie can't be cut off in any case.but in modern India concept of divorce exist, Divorce put the marriage to end, It ceases all the mutual obligation of husband and wife, they are free to go there on way. This leads to end all bonds between them except concerning section 25 (maintenance and alimony) and section 26 (custody, maintenance, and education of children). There is available much ground on which husband and wife could take divorce.


Grounds of Divorce:


Under the Hindu Marriage Act,1955 there exists following grounds of divorce such as:-


  1. Fault Ground (section 13(1))


  1. Breakdown Ground (section 13(1A)(i), 13(1A)(ii))


  1. Divorce By Mutual Consent (section 13-B)


  1. Customary Divorce (section 29(2))


Fault Ground


Under the Hindu Marriage Act 1955, section 13(1), lays down nine fault ground of divorce. Some of there are Adultery, Desertion, Cruelty, Insanity, Leporacy, Verenal Disease, while others such as Conversion, Or Renunciation of words are typically Hindu grounds.


Irretrievable Breakdown Ground


Under Hindu Marriage Act 1955, section 13(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground


•that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or


•that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.


In K. Srinivas Rao v. D.A. Deepa[16] court held that the irretrievable breakdown of a marriage is not a basis for divorce under the Hindu Marriage Act of 1955. However, where marriage is beyond repair due to the animosity induced by the actions of the husband or the wife or both, the courts have often treated the irretrievable dissolution of marriage as a rather severe situation, inter alia, causing marital separation. A marriage that is dissolved for all purposes can not be restored by the decision of the court if the parties are not able to do so.


Divorce by Mutual Consent


Under Hindu Marriage act, sub-section (1) of section 13B of the Act required that the petition for divorce via mutual consent need to be provided before the court jointly among the events and that there had been 3 other requirements of sub-section (1) specifically


  1. They have been residing separately for a period of 365 days,


  1. They have not been capable of live together and


  1. They've together agreed that the marriage has to be dissolved[18]


Under Hindu Marriage Act, Section 13-B, it might be clear that both the parties are able to document a joint petition for divorce by means of mutual consent, provided they were living separately for a period of 365 days. moreover, it's far provided that at the motion made by means of each the events not earlier than 6 months after the date of presentation of the stated petition and no longer later than 18 months of the stated date, the court on being satisfied after hearing the events and after making such an inquiry as it thinks suit, pass a decree of divorce dissolving the wedding by way of mutual consent.

In Smt. Jayashree Ramesh Londhe vs Ramesh Bhikaji Londhe[19] court held that either party can withdraw the petition after thinking over the matter about divorce through mutual consent and that in this way a party can withdraw the earlier consent though not obtained by using fraud, undue influence, and coercion.


Customary Divorce


It is a fact that divorce was not known to the general Hindu rule, but however, in some cultures, divorce was accepted by custom and the courts followed the custom where it was not contrary to public policy. The scheme and the purpose of this Act are not to circumvent any of those customs which have been recognised as having divorce and effect by the saving found in this chapter. Under any other situation, it is not mandatory for the spouses to come before the Court to seek divorce on the grounds recognised by custom.


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