Matrimonial Law

The upward trend of marriage related disputes and litigations in India, increases the demand of lawyers who are well equipped with the latest updates of family laws along with the mind set to solve family issues which are a very special category by nature.

We believe that all matrimonial disputes do not end in Divorce and involvement of near and dear under the guidance of a similar minded legal professional may save many couples from Divorce. Various misconceptions about the marital laws, wrongful advice and others reasons are playing a vital role behind the long drawn matrimonial litigations. Before entering into family litigations, proper counseling by experienced professionals are of much importance on which the Hon’ble Court emphasized times without number.

As a part of our social responsibility, we take the pleasure to give a nutshell on the pros and cons of various legal provisions related to marital disputes.


Territorial Jurisdiction of Court

Jurisdiction of Court depends on various factors. Case can be filed at the court within whose jurisdiction:

• The marriage took place

• The place where the marriage was registered

• The parties used to reside as husband and wife

• The parties last resided together

• The respondent presently resides


This is the best option for divorce where both the parties agree for divorce and mutually distribute their properties and take decision about child custody, maintenance etc. Along with all the points petition has to be filed before the District Judge of the concerned District.

Mutual Divorce under Hindu Marriage Act or Special Marriage Act:

Under section 13B of the Hindu Marriage Act a couple can apply for Dissolution of marriage by way of Divorce on Mutual Consent. For this, Joint petition to be filed on the ground of incompatibility. If several cases are pending between the parties we normally advice for execution Memorandum of Understanding between the parties and to file the mutual divorce application. After filing of the mutual divorce prior to the date of final hearing we advice parties to take necessary steps to withdraw the pending cases between them.

Documents required:

• Proof of marriage (marriage certificate or marriage invitation card along with marriage photographs)

• Photo ID of both the parties (Voter ID/AADHAR/Passport/ Driving License/ Bank Passbook or PAN card with any other address proof like Electric Bill, BSNL Bill, LPG Bill etc)

• Two copies passport size photographs of each

Conditions:

• Application for mutual divorce can be filed after expiry of one year from the date of marriage

• Minimum separation period to file mutual divorce is one year

Final hearing of mutual divorce can take place anytime between six months to eighteen months from the date of filing.

Mutual Divorce under Christian Marriage Act:

First of all there is no provision for mutual divorce in Christian Marriage Act. For this purpose application to be filed undersection 10A of Indian Divorce Act.

Documents required:

• Proof of marriage (marriage certificate or marriage invitation card along with marriage photographs)

• Photo ID of both the parties (Voter ID/AADHAR/Passport/ Driving License/ Bank Passbook or PAN card with any other address proof like Electric Bill, BSNL Bill, LPG Bill etc)

• Two copies passport size photographs of each

Conditions:

• Application for mutual divorce can be filed after expiry of one year from the date of marriage

• Minimum separation period to file mutual divorce is two year

• Consummation of marriage is mandatory

• All properties and others to be settled prior to finalization of the mutual divorce

Final hearing of mutual divorce can take place anytime between six months to eighteen months from the date of filing.


Divorce on Contest

Where the parties cannot come to any amicable decision for divorce or reconciliation, the parties shall have no other alternative but to file suit for divorce on the grounds for which he is not interested in continuing with the marital tie. No specific time frame can be assigned in this case and it depends on various factors.

Various Grounds for Divorce:

The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act and such are included under cruelty.

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.

Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

The following are the grounds for divorce in India on which a petition can be filed only by the wife:

• If the husband has indulged in rape, bestiality and sodomy.

• If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.

• A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.

• If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.

Nullity of Marriage

In some cases, we noticed that the parties registered the marriage under the Special Marriage Act, 1954 for various reasons and decided for social marriage and to start living together at a later stage. But after registration of marriage, for reasons, the social marriage did not happen and they never resided together as husband and wife and they are looking for getting the marriage registration dissolved.

In such peculiar circumstances, various important factors are to be explained to aid the parties to take right decision to proceed with.

First, without consummation there is no complete marriage. Only registration of marriage and no living together as husband and wife indicates that the marriage is not a complete one and unless there is a complete marriage the question of Divorce does not arise at all.

In this case, the option available for the parties is to go for nullity of marriage and not the Divorce in any form. There are many other grounds for nullity of marriage also. There are no provisions of law for Nullity of Marriage on Mutual Consent.

Judicial Separation

This is an alternative relief often awarded by the Court to the contesting parties instead of Divorce. The aim of the provision is to give a last try to save the couple. In Judicial Separation Law allows an opportunity to both the husband and the wife to think about the continuance of their relationship while at the same time directing them to live separate, thus allowing them the much needed space and independence to choose their path. The ground for Judicial Separation and Divorce are the same as per the Hindu Marriage Act and Special Marriage Act. If within two years from the date of passing of the order for Judicial Separation, reconciliation between the parties does not happen, either of the parties may file petition for Divorce on such ground.

Restitution of conjugal rights

As per the provisions of the Hindu Marriage Act and the Special Marriage Act, either of the spouse can file suit for Restitution of Conjugal Rights if he or she has been deserted by the other for no reason. In these cases, the burden of proof lies on the party who deserted the petitioner. It is the best option for the party who has been ousted or deserted by the other party.

Maintenance

A wife and kids are entitled to get maintenance from husband subject to fulfillment of several prerequisites.

Maintenance for the wives is one of most important enactment by our parliament. Wives in distress can claim maintenance from their husband and the wives are well armed with strict provisions of law.

A Hindu wife can claim maintenance from the husband under several provisions viz. under section 125 of the Code of Criminal Procedure, under Protection of Women from Domestic Violence Act, under the provisions of Hindu Adoption and Maintenance Act and under the provisions of Hindu Marriage Act.

The quantum of maintenance is dependent on the quantum of income of the husband, status of the husband, number of children etc.

For getting maintenance wife must prove that she has no income of her own.

Remarriage of wife disentitles the wife from maintenance. Besides this, there are few other factors for which the wife may be refused for maintenance.