DIVORCE UNDER HINDU MARRIAGE ACT 1955
Marriage is one of the most significant institutions in our culture. However, as one of the most intricate partnerships, it is challenging to maintain, especially in today’s times where there is an increasing tendency to seek divorces. This is where the Hindu Marriage Act (HMA) assists in preserving marriages and families from disintegration.
The Hindu Marriage Act, which came into force in the year 1955, aims to establish uniformity of laws among Hindus. It provides the legal framework required for individuals to file for a divorce under the Hindu Marriage Act, as per the sections stipulated by the law.
Marriages are among the most complex relationships, laden with emotional and financial investments. The purpose of this act is to safeguard the rights of both the bride and the groom as per the Hindu Marriage Act.
Application of the Hindu Marriage Act
(1) This Act applies—
(a) To any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana, or Arya Samaj,
(b) To any person who is a Buddhist, Jaina, or Sikh by religion, and
(c) To any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi, or Jew by religion, unless it is proved that such a person would not have been governed by Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
The following persons are considered Hindus, Buddhists, Jainas, or Sikhs by religion, as applicable:
(a) Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas, or Sikhs by religion;
(b) Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina, or Sikh by religion and who is brought up as a member of the tribe, community, group, or family to which such parent belongs or belonged; and
(c) Any person who is a convert or reconvert to the Hindu, Buddhist, Jaina, or Sikh religion.
A brief history of the act
Divorce, as a legal option for separation, was acknowledged and practiced in British India in the year 1869, primarily for Christians seeking legal dissolution of marriage. In India, there was no legal framework to formalize or allow divorce until the formation of the Hindu Marriage Act in 1955, which enabled individuals to file for divorce under the act.
Importance of understanding the act
The Hindu Marriage Act is a crucial law that should be understood by every individual before entering into a formal marriage setup. Even a brief knowledge of the law and its importance can help both the bride and the groom grasp the seriousness and consequences of their union. The act establishes some fundamental principles and safeguards the rights of both parties in a marriage. This law outlines :
Bigamy
As per the Hindu Marriage Act, a man is not permitted to have multiple wives simultaneously. To marry another woman, a man must legally divorce his first or present wife. Failure to do so renders him liable to penalties under sections 494 and 495 of the Indian Penal Code, 1860.
Marriage age
Restitution of conjugal rights
Mental stability
Marriage ceremonies
Relevant provisions related to divorce under the Hindu Marriage Act, 1955
Now, let us examine various provisions relating to divorce and separation under the Hindu Marriage Act:
Section 10 of Hindu Marriage Act 1955
Section 10 of the Hindu Marriage Act discusses judicial separation and outlines the lawful process for obtaining a divorce, which includes filing a petition in the family court. The grounds for separation and the applicable sections can be specified in the petition as per sections 13 (i) and (ii).
Section 5 of Hindu Marriage Act 1955
Section 5 of the Hindu Marriage Act delineates the conditions for a Hindu marriage. It is noteworthy that these conditions are discretionary, hence it is stated that marriage "may" be solemnized under the following conditions. These conditions include:
(i) Neither the groom nor the bride was married at the time of the marriage.
(ii) Neither party is incapable of consenting to the marriage or is mentally unfit. Additionally, neither party should have conditions such as recurring insanity or epilepsy.
(iii) Both parties have reached or exceeded the legal marriage age as stipulated by Indian legislation, which is 21 years for the groom and 18 years for the bride.
(v) The parties are not sapindas unless their religion or custom permits it.
Section 13
Section 13 is a comprehensive section that lists several grounds for obtaining a divorce under the Hindu Marriage Act. Clause 1-A of section 13 provides grounds for divorce by either party, whereas Clause 2 outlines grounds specifically available to wives.
Section 13-2 includes grounds like bigamy, rape, sodomy or bestiality, decree or order of maintenance (subject to section 18 of HMA or section 125 of the Penal Code), the wife’s separate living, marriage before the age of 15 (can file for divorce before reaching 18 years), and living separately for at least one year.
Section 14
Section 14 of the Hindu Marriage Act prohibits the dissolution of any marriage within one year from the date of marriage. Exceptions can be made if enough proof is submitted while filing the petition. The act supports giving marriages a fair chance for reconsideration and reconciliation, considering the emotional, psychological, and financial implications it may have, especially if there are children involved.
Section 15
Section 15 of the Hindu Marriage Act defines the rights of both parties to remarry once the divorce decree is granted. This period is determined based on any ongoing or existing appeals against the decree. If any appeals are present and not dismissed by a court of law, the rights to remarry are nullified.
Grounds of Divorce
Adultery: Engaging in an extramarital affair or sexual relationship outside marriage.
Cruelty: Unjustifiable behavior causing physical, mental, or emotional harm.
Desertion: Abandonment of the partner without consent or reasonable cause.
Conversion to Another Religion: As mentioned above, converting from Hinduism to another religion not part of the Hindu faith.
Mental Disorder: Any mental illness making it practically and emotionally impossible for the couple to live together.
Communicable Disease: Diseases, including STDs, that can be harmful to the partner.
Renunciation of the World: When a partner abandons all material things to pursue a religious or spiritual path, leaving their family behind.
Types of Divorce Petitions
Divorce with Mutual Consent
Both parties agree to mutual divorce, preparing a memorandum of understanding through their respective lawyers, based on which the final petition is filed in court.
Divorce without Mutual Consent
Where one party is unwilling for divorce, the petitioner files the petition in court, and the family court alone grants the divorce decree based on the presented facts.
Divorce Notice
An official legal document sent by the petitioner to their partner indicating their intent to divorce, serving as a final warning before entering a legal battle.
Procedure of Divorce under the Hindu Marriage Act 1955
Step #1: Petition on behalf of both parties (husband and wife) is submitted to the family court by their respective lawyers. This petition contains all details pertaining to the separation, terms, and evidence required for the divorce.
Step #2: A specified date is provided for both parties to appear before the family court with their counsels for examining every aspect of the petition, including family backgrounds, properties owned, reasons for divorce, child custody (if applicable), ID proofs, and more.
Step #3: Courts may also send the couple for mediation, exploring chances for reconciliation. However, if both parties deny reconciliation, proceedings continue in the family court.
Step #4: After scrutinizing evidence and statements, the family court judge may modify conditions related to alimony, maintenance, child custody, or visits. Following this, the first motion is passed, giving parties six months to reconsider their decision, which can extend to 18 months from the petition date.
Step #5: During the waiting period, if the couple decides to reconcile, they can appeal for the divorce cancellation. If either party disagrees, the divorce process continues, and in the second motion, final statements are recorded in the family court.
Step #6: The final agreement is signed by both spouses, preventing future conflicts over alimony, maintenance, or child custody.
Step #7: Once the court is convinced there is no reconciliation possibility, the divorce decree is granted, rendering the marriage void and invalid.
Maintenance and Alimony
Understanding Maintenance and Alimony: Maintenance and alimony refer to the financial support one spouse must provide to the other as ordered by the court, regardless of divorce status.
Maintenance During Divorce Proceedings: Interim maintenance is a specified amount given by one partner to the other during the divorce proceedings to ensure the receiving party is not financially disadvantaged.
Maintenance After Divorce Proceedings:
A predetermined amount one partner provides to the other post-divorce. Failure to comply may lead the receiving party to seek legal support.
Factors Considered When Deciding Maintenance and Alimony: The court considers future expenses, lifestyle costs, education, inflation, medical expenses, and more. The amount reflects both parties' financial abilities and is realistic without imposing undue hardship. Once decided, the payer must meet their financial responsibilities.
Conclusion
Seeking divorce under the Hindu Marriage Act, of 1955 is a significant decision that should be approached thoughtfully due to the emotional, psychological, and financial toll it can take. Understanding different sections of the act can facilitate more informed decisions.
It is crucial to employ a knowledgeable lawyer for proper case filing. For expert advice contact best divorce and matrimonial lawyers in Gurgaon - Vivek Nasa Associates
, as they are about the complexities of divorce proceedings and can anticipate challenges more effectively than a layperson.
Obtaining a divorce can be a lengthy and arduous process, taking anywhere from one to ten years or more, depending on the case's nature and the parties' agreement. Therefore, it is easier to seek a divorce than to contest it and ultimately obtain it.