The provision related to the concept of divorce was introduced by the Hindu Marriage Act, 1955. The Hindu Marriage Act defines divorce as a dissolution of the marriage. For the interest of the society, the marriage or the marital relationship needs to be surrounded by every safeguard for the cause specified by law. Divorce is permitted only for a grave reason.
The main object of the Family Courts is to settle matrimonial disputes speedily by adopting simplified procedure. All matrimonial disputes enumerated in the explanation to Section 7 (1) of the Act and also cases relating to Section 125 of Criminal Procedure Code are tried in the Family Court. This act is aimed at providing speedy and effective settlement of all types of matrimonial disputes under one roof, to all sections of people irrespective of caste, creed or religion.
Section 19 of the Hindu Marriage Act, 1955 (HMA) deals with territorial jurisdiction of Petitions filed under the Act. Court to which petition shall be presented: Sec. 19 of HM Act.
Every petition under this Act shall be presented to the district Court within the local limits of whose ordinary original civil
Jurisdiction
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
(iii a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
Section 19 provides 5 options. It enables the parties to file the Divorce Petitions under any one of them as per their convenience.
There is an advantage given to a Wife if she institutes a Divorce Petition. In case, the Petition is to be filed by the Wife, then Clause (ii) of Section 19 would not be applicable to her. Clause (iiia) of Section 19 states that in case the Petitioner is the wife, she can file the Petition where she is presently residing.
Clause (iv) of Section 19 provides an option to a Husband or Wife to file a Petition against the other in case the other spouse is either beyond the jurisdiction of Indian Courts or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him, if he were alive, i.e., his relatives and friends. This provision is important to safeguard the liberty of a spouse who has been deserted, under the conditions mentioned above, by the other and wants to breakfree from the legal bondage of marriage.
The Hindu Marriage Act, 1955 provides for 2 ways to obtain divorce from the spouse.
1. Contested divorce under section 13 of the act.
2. Mutual consent Divorce under section 13B of the act.
Grounds of Divorce as per the Hindu Marriage Act
Adultery, Cruelty, Desertion, Conversion, Unsoundness of mind, Schizophrenia, Leprosy, Venereal disease, renunciation, entering new religious order, Presumption of death, non compliance with a decree of Judicial separation, non compliance with a decree of Restitution Conjugal Rights.
After divorce, when the Hindu married couple isn't able to divide the marital property among them amicably due to an absence of a possible agreement, the competent court distributes the property as per Section 27 of the Hindu Marriage Act, 1955. The court needs to divide the shares of the property in just and proper manner.
The Hon'ble High Court in the case of Surinder Kaur v. Madan Gapal Singh, while explaining the position of Section 27 clarified that it includes not only the property which are presented to any of the spouse at the time of marriage but also at any time before or after the marriage.
Therefore, a property bought by the husband after marriage in the name of the wife falls under the ambit of Section 27 and the competent Court has the power to divide the marital property in a just and proper way among the spouses.
The Honorable Courts of India have been following a common practice of dividing the marital property based on ownership and individual contribution. The first and foremost question that the court asks before dividing the property is who has the ownership i.e. title over the property.
If there is a joint ownership over the property then it would be divided proportionally based on the contribution by each of the two spouses. To determine the share of each spouse, the court takes into consideration individual equity over the property. For instance, if the husband and the wife have joint ownership over a property X, where the husband had contributed 40% and the wife had contributed 60% of the required amount to buy that property X, then the court would determine the current value of the property X and distribute the shares proportionally based on the percentage amount contributed by each of the spouses.
In case, where there is joint ownership over the property but only one of the spouses has paid for it then the court needs to scrutinize the matter before distributing the property. Generally, in this case, shares of the property get divided equally among the spouses. But if one of the spouses successfully proves in the court that he/she has paid the full amount from his/her known sources, then he/she might acquire the whole property in dispute, irrespective of the joint ownership.
Unfortunately, in India, the law does not acknowledge the non-financial contributions made by the spouse. Owing to this grey area in our legal system, many of the Indian housewives who non-financially contribute in the property for the entirety of their married lives to manage and maintain the household fail to acquire any part of it after a divorce.
A similar scenario was highlighted in the case of Sri Arun Das v. Smt. Aparna Das where the sale deed of the property contained names of both the husband and the wife. After divorce the wife filed for partition of the suit into 50:50 ratios. The court after scrutinizing the bank details found out that the entire consideration money was paid by the husband which puts the wife in fiduciary capacity vis-a-vis husband. The court held that the wife was like a trustee of the property and as the husband contributed money for the property he becomes the sole owner of the property, irrespective of the fact that the wife's name was on the sale deed.
Maintenance laws and rules differ from religion to religion. The amount of maintenance fixed by the court depends upon the monthly income of the husband, the income of the wife, his financial status, among other things. India being a democratic country provides its citizens with various laws which are essential in earning a livelihood. A woman is considered as a legal "Wife" of a man, only if their marriage hasn't proved to be null and void. From the right to the residence at the house of her husband to have an equal share in the property, a legally wedded wife enjoys many rights.
As per the maintenance laws & rights, it is the duty of the husband to pay his wife a lump-sum or monthly payment, known as maintenance, where the maintenance without divorce or after a divorce has to be paid. The amount of maintenance is either decided by a mutual settlement between the husband and wife, or in accordance with the order received from the court. It is the women's right after divorce in India.
Legal Rights of a Wife
Right to Streedhan: Streedhan is the property that a woman obtains at the time of her marriage, it is different from Dowry in a way that it is voluntarily gifts given to the wife before or after her marriage and there is no element of coercion. The courts clearly say that women will have absolute rights over their Streedhan even if it is placed in the custody of her husband or in-laws.
Right to maintenance by the husband: Under Section 18 of the Hindu Adoption and Maintenance Act, 1956 a Hindu wife is entitled to claim maintenance from her husband in case if he is guilty of cruelty, desertion, polygamy or has a venereal disease, thereby enforcing her rights in divorce. Under Section 25 of this act, it provides for permanent Alimony and Maintenance of wife and child. This section allows any court which has jurisdiction under this Act to pass an order upon receiving an application from the aggrieved spouse directing the respondent to pay the applicant for her support and maintenance.
The right to live with dignity and self-respect: A wife has the right to live her life with dignity and to have the same lifestyle as that of her husband and in-laws. She also has the right to live free from any mental or physical torture.
Right to child maintenance: The husband and wife must provide for their minor child. If the wife is incapable of earning, then the husband must provide her with financial support.
Claiming maintenance under different laws
India being a secular country has a population that follows different religions. In order to understand the legal structure behind the governance of maintenance in religion, we need to look at the personal laws in force.
Maintenance under Hindu law:
According to the Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 a divorced woman has a right to claim maintenance under the Hindu Law.
Under the Hindu Marriage Act, if in any proceeding under this Act, the Court comes to the conclusion that either the wife or the husband has no separate source of income sufficient for their support, it may order for the payment of monthly maintenance to the petitioner through the respondent.
Maintenance under Muslim law:
Under the purview of Muslim law, a husband is supposed to maintain his wife and family, and the term maintenance signifies the amount he is liable to pay for the same.
The term used for maintenance under Muslim Law is called nafaqa and it involves food, sustenance, and lodging.
The term used for maintenance under Muslim Law is called nafaqa and it involves food, sustenance, and lodging.
The wife is usually entitled to obtain maintenance from her husband, despite the fact that she has the appropriate means to maintain herself.
The law that governs the maintenance of divorced women is the Muslim Women (Protection of Rights on Divorce) Act, 1986.
A wife has a claim over a fair amount of maintenance by her ex-husband within the given iddat period
The husband is required to provide 'Meher' or 'Dower' as promised at the time of the wedding or anytime later
If during the divorce, the wife is pregnant, she can claim a fair amount of maintenance for at least 2 years from the date of birth of a child
If they had a child at the time of divorce, a wife can still claim maintenance for the child till the time she remarries or until the child is dependent
The marriage contract may also stipulate the payment of special allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc.
Maintenance under Christian law:
Under the purview of Christian Law and maintenance, the Indian Divorce Act plays an important role.
The amount of maintenance mentioned in the act dictates that it cannot be more than one-fifth of the husband's income. The precondition here is that the woman should not remarry and stay chaste.
The amount of permanent maintenance depends upon factors like husband's income, wife's own income, property, the behavior of both the wife and husband, etc.
Maintenance under the Parsi law:
Under Parsi Law, maintenance is usually similar to the Christian law but here the husband can also claim maintenance and the court cannot offer maintenance beyond the life of the person paying maintenance.
The usual condition of chastity follows and the amount cannot be more than one-fifth of the spouse<sup>s</sup> income.
Marriages under the Special Marriage Act, 1954
Special Marriage Act, 1954 also allows a divorced wife to claim maintenance and support by charging a quantum on husband's property depending on the husband's ability to pay, his property, wife's own wealth, property and assets, the conduct of both the parties and any other just circumstances. The district court of apt jurisdiction where the application for maintenance is submitted can rescind, modify or vary its order/decree if it is convinced that there is a change in circumstances of either party at any time after the order is passed or if the divorced woman doesn't remain chaste or single.
Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. In Hindu Law, Marriage is treated as a Samaskara or a Sacrament. Divorce, however is a thorny question and Annulment is a very unusual remedy. In our modern world, an Annulment tends to be more a creature of religion than of law. Annulments are rarely granted and when they are, very specific circumstances must exist.
What Is Annulment Of Marriage?
In strict Legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this.
Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.
Grounds For Annulment
The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence including the following:
1) Either spouse was already married to someone else at the time of the marriage in question;Basis Of an Annulment
In Section 5 of the Hindu Marriage Act 1955, there are some conditions laid down for a Hindu Marriage which must be fulfilled in case of any marriage between two Hindus which can be solemnized in accordance with the requirements of this Act.
Section 5 Condition for a Hindu Marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) Neither party has a spouse living at the time of the marriage;
(ii) At the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) The bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two:
An annulment may be granted when a marriage is automatically void under the law for public policy reasons or voidable by one party when certain requisite elements of the marriage contract were not present at the time of the marriage
Void Marriages
A marriage is automatically void and is automatically annulled when it is prohibited by law. Section 11 of Hindu Marriage Act, 1955 deals with:
Nullity of marriage and divorce- Void marriages - Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 mentioned above.
Bigamy - If either spouse was still legally married to another person at the time of the marriage then the marriage is void and no formal annulment is necessary.
Interfamily Marriage. A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.
Marriage between Close Relatives. A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.
Voidable Marriages
A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud
Section 12 of Hindu Marriage Act, 1955 deals with
(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
Impotency - If either spouse was physically incapable of entering the marriage at the time of the marriage, usually because of a lack of ability to have sexual intercourse, and if this inability appears incurable or if the spouse refuses to take any action to cure the inability, there are grounds for an annulment. The inability must continue and must exist at the time of suit.
Lack of Mental Capacity - If the court finds that either spouse did not have ability to understand the nature of the marriage contract or the duties and responsibilities of the marriage contract, then there may be grounds for an annulment. However, if the spouse who did not have the ability to understand the contract gains the capacity to understand it and freely lives with the other spouse, then this ground does not apply. This particular ground most often applies to someone who has been mentally ill or who has suffered from mental or emotional disorder.
A Party was Under the Age of Consent - If you were married while you are under the legal age, your marriage may be annulled. The legal age for boys is 21 years and for girls is 18 years. A marriage by an underage party may become legally binding and incapable of annulment if the cohabitation of the parties as husband and wife continues voluntarily after the person reached the age of consent.
Fraud or Force - If the consent to the marriage contract was obtained either by fraud or force, then there are grounds for an annulment. Fraud is simply not telling the truth in order to induce the other party to enter into the marriage contract. Whether the failure to tell the truth will be grounds for annulment depends of the facts of the case. Force implies the use of or threat of the use of physical violence to make a person get married. The person who has been threatened or deceived about the marriage contract continues to live with the spouse after the discovery of the fraud or the deception or after being forced into the marriage, it is possible that this ground will not apply.
A Hindu person has been defined to include Jains, Buddhists and Sikhs also and thus, the law made for Hindus is also applicable to persons of these religions. The right of custody of a Hindu child is dealt by the Hindu Minority and Guardianship Act, 1956 together with the Guardians and Wards Act, 1890. The two statutes have to be read harmoniously and the enforcement of one at the cost of the other is not permissible.
Some general rules of child custody applicable on Hindus are -
The custody of a child below the age of 5 should be given to the mother as it is believed that the child of such a tender age needs affection and love which can only be provided by the mother.
It has been a customary practice under Hindu law that the father is the natural guardian and has the ultimate right of custody. This practice has been codified in Section 6 of Hindu Minority and Guardianship Act, 1956 and the custody of children in India above the age of 5 and below the age of 18 years has been the right of the father. In Geeta Hariharan v Reserve Bank of India, the Supreme Court held that the mother can only claim custody on the pretext of the death of the father or in his absence. However, this rule is not applicable if the child is illegitimate. In such a case, the right to custody is only with the mother.
The ultimate rule for granting of child custody is that such custody should be in the 'best interest of the child'. All the rules laid down above can be disregarded on a strong implication of affecting the 'best interests of the child' adversely.
If the court believes that the parents are unwilling or unable to take care of the child properly or in his best interest, then the court can award the custody of such a child to the close relatives. In a case close relatives are also not able to dispose of the duties of the parents, then the custody can also be given to a capable third person at the discretion of the court.
There are certain persons who cannot be given child custody - i. a person who has certain bad habits that will adversely affect the proper upbringing of the child; ii. a person who has ceased to be a Hindu or converted to any other religion; iii. a person who has renounced the world and does not believe in any materialistic pleasure eg. a person trying to achieve nirvana; and iv. a person who is not able to carry out the development of the child in his best interest (in such a case even mother of a child of a tender age can be denied custody).
Further, the court while deciding on custody can provide the other parent (who is not entitled to custody rights) with visitation rights wherein the other parent can be given some time to visit the child. Such rights can be passed by interlocutory orders and can be modified to suit the changed circumstances.
In Vikram Vohra v. Shalini Bhalla, the Supreme Court allowed the relocation of the mother and the child in Australia and thereby modifying the visitation rights. But in my opinion, in such a situation it has to be analysed that the reason for relocating is not to adversely affect the other parent and is in the best interest of the child. If this is not the case, then the relocating to adversely impact the visitation rights should not be allowed.
The gender bias prevalent throughout the Hindu law of custody has to be reviewed in light of the upliftment of women in the present era. Section 6(a) of the Hindu Minority and Guardianship Act and Section 19(b) of the Guardians and Wards Act (unamended) are clearly discriminatory as they consider father to be the natural guardian over the mother without any rationale.
The Law Commission in its 1989 report has clearly understood this discrimination and has proposed the laws to be amended in a manner that does not infringe upon the right of equality. On this recommendation, Section 19(b) of the Guardians and Wards Act was amended to bring the custody rights of the mother and the father at par but there has been no parallel amendment in the Hindu Minority and Guardianship Act.
Custody under Muslim Law ('Hizanat')
The issue of custody of a Muslim child is dealt with by the personal law and Guardians and Wards Acts, 1890; and in case of conflict, the latter prevails. The absence of any special religious law statute (like Hindus have) does not adversely affect the rights of Muslim children as certain practices which are fundamental to the custody of a Muslim child are considered by the courts while awarding custody.
Certain general principles adopted for custody of a Muslim child are - Under the Shia law, a mother's right to the custody of her minor children extends until a son is two years old, and the daughter attains the age of seven.
Under Hanafi law, custody of a child is with the mother till he attains the age of 7 in case of a boy; and till she attains puberty in case of a girl.
The mother's right of custody continues even if she is divorced but in case of remarriage after divorce process in India, the custody belongs to the father.
The consent of the child is taken into consideration if he is held to be able to understand his interests. Further, such consent has to be cross-checked so as to identify there's no element of tutoring present. In case there is, the consent of a child has to be disregarded.
The custody of a boy above the age of 7 and a girl who has attained puberty is transferred to the father who likes in case of Hinduism is considered to be the natural guardian.
The above rules are subject to certain exceptions wherein certain people are denied custody irrespective of their gender. These rules are - i. a person who possesses a bad moral character; ii. a person who has ceased to be a Muslim and thereby converted to any other religion; iii. a person who does not have a sound mind; iv. the doctrine of 'best interest of the child' applies here also and a person who cannot take proper care of the child is not entitled to the custody; and v. a woman who has married within prohibited relationships.
The last restriction shows the bias that still holds against the women at present in society. Even after all the feats, women have achieved in the present world, 'equality' is still left behind a bit. The annulment of a triple talak was a step forward towards gender neutrality of rights but entitling the men who have married in prohibited relationships to get the custody of a child and denying the women who have done the same is arbitrary; and as has been stated arbitrariness is antithetical to equality and unconstitutional and thus, curtailment of such a right is unconstitutional.
Custody under Christian law
The issue of custody of a Christian child is dealt by the Indian Divorce Act, 1869 with Guardians and Wards Act, 1890. The Act provides that in case of religions that do not have personal laws for child custody, the decisions would be enforced by the courts under the powers allotted by Section 41-43 of the Act.
The court has the power to decide the question of custody of the child either during the proceedings or after the termination of such proceedings. The court has to exercise the power in the best interests of the child and anything that adversely affects the child would have to be considered by the courts before taking a decision on custody.
A deed of separation, also known as separation deed, refers to a legally binding document between a married couple, which states their mutual decision to live separately.
This formal contract documents the commencement of the separation and lays the groundwork for the terms and conditions which will govern the relationship during the separation.
A deed of separation can only be invoked with both spouses' consent but need not be registered.
A married couple that make a mutual decision to live separately, as a:
buffer period for partners to seriously consider a divorce and whether reconciliation is a possibility moral grounds
precursor to divorce, acting as a private separation agreement until a married couple is eligible to file for divorce.
It can be drafted by any professional lawyer, and need not be registered with any government bodies or filed in Court.
Both parties must be agreeable to the terms of the Deed of Separation.
The deed can be revoked anytime only with the consent of both parties.
A divorce settlement agreement is a legal agreement which is prepared before the parties ahead of mutual divorce proceedings. Such an agreement contains all the terms and conditions of their separation.
If it is enforced in a legal fashion then it is deemed to be a legally binding document on all the parties involved.
It is always recommended to make a settlement agreement in a mutual divorce because it is a legally binding agreement. So, if any party is not complying by the terms of the agreement, then once the court passes such an agreement, it will be seen as a breach of contract.
It is an essential document that helps in regulating and settling the marital conflicts between the couple. It also brings a lot of clarity on several issues which might arise after the relationship between the parties come to an end.
It also proves to the court that each and every issue was well thought out and hence it can save a lot of time in the decision-making process for the court.
It also helps in avoiding intricate matters whose decision making might need the parties to deliberate on it at a later stage which may make things a lot bitter. Hence, it is always recommended to make a settlement agreement before mutual divorce proceedings and leave no space for any ambiguous decisions in the future because putting an end to any relationship can be very overwhelming and sometimes taxing.
While it is not necessary, making a settlement agreement in a mutual divorce has its advantages and is always recommended for the reasons mentioned above. A mutual divorce will be valid even when no settlement agreement has been entered into. However, its benefits are numerous and ensures peace of mind in the longer run.