Under the Hindu Marriage Act, of 1955, divorce can be sought in two primary ways: by mutual consent or by contention (without mutual consent). Divorce by mutual consent occurs when both spouses agree to end their marriage amicably. They must jointly file a petition before the court, stating that they have lived separately for a specific period (usually one year or more) and are unable to live together, to dissolve their marital bond.
On the other hand, divorce by contention arises when one spouse unilaterally seeks to end the marriage on legal grounds provided under personal or religious laws. These grounds include cruelty, adultery, desertion, conversion to another religion, unsoundness of mind, and other recognized causes. The aggrieved spouse must file a petition in the appropriate tribunal or court, substantiating the claim with evidence. Courts cannot grant divorce arbitrarily; a valid legal cause is essential for granting a decree of divorce under the law.
A Brief Look at the Concepts of Talaq in India & List of Some Good Grounds for Divorce.
The grounds for divorce in India, as per various personal laws and legal precedents, include the following:
These Rights Are applicable to Both husband and wife.
1. Engaging or being involved in sexual intercourse outside the wedlock.Though not a criminal act since Joseph Shine vs Union of India (2018), remains a ground for divorce.
2. Misconduct involving both verbal and physical abuse that hinders living together
3. Sexual demands from the partner which is forced
4. Physical abuse of spouse or children.
5. Desertion by the other spouse for not less than two years without reasonable justification or the consent of the injured spouse.
6. The spouse can seek divorce if one partner changes their religion apart from Jainism, Buddhism, or Sikhism.
7. Disease or mental illness that cannot be treated, or that renders it unbearable to live together with the other spouse.
8. Divorce can also be given because one of the spouses has a communicable sexually transmitted disease.
9. Apostasy or becoming a monk, qualifies for an absolute divorce.
10. In cases where a spouse cannot produce the other spouse for seven years, then a spouse can seek a divorce.
Extra Grounds Exclusive Only to Women for grounds of divorce:
1. If the husband has more than one wife then the wife can file a petition of divorce under section 13 of the Hindu Marriage Act, 1955. the wife can seek divorce under the Hindu Marriage Act, of 1955.
2. Husband Is Capable or Accused of Rape or Sodomy
3. If he willfully refuses to cohabit with her, then she may obtain a divorce after one year and without the consent of her husband.
4. A girl who got married under a certain age (below the age of 15), can cancel the marriage when she is 18 years old. The wife can seek divorce under the Hindu Marriage Act, of 1955.
Key Legal Precedents
1. Joseph Shine vs. Union of India (2018): Adultery was legalised but is still an acceptable reason for the dissolution of a marriage.
2. Cruelty Amendment (1976): New cruelty as a reason for dissolution of marriage under the Hindu Marriage Act.
All these grounds make sure that people seeking shelter from marital conflict receive protection of their dignity and rights.
The procedure for divorce:
Step 1: The initial procedure of going for contested divorce requires reaching a qualified lawyer so he/she can represent your case and help you.
Step 2: Step Two is to write a petition for divorce to be filed at the family court in the jurisdiction where you reside.
Step 3: The next process that follows the filing of a petition is the issuance of summon to the Respondent. As per the date of the Hon’ble Court, both parties have to present in the court itself.
Step 4: once the two parties have filed a petition and reply the trial begins and the court hears both parties together with witnesses and evidence.
Step 5: The last step which is the final order, the court finalises the divorce and ends the case.
In What Way Can A Lawyer Assist In This Case?
Procuring a divorce without the consent of the other party is very easy if the right lawyer is hired. This procedure should be done under the supervision of a lawyer, here you need his or her help. Experienced lawyers can be of great help to you in several ways. To ensure you get the best legal support, consulting famous divorce lawyers in bangalore can provide you with the expertise needed to navigate the complexities of the divorce process.
Dissolution of marriage without consent is slightly more challenging than dissolution of marriage by consent. This kind of issue requires a lot of experience to handle and satisfy the court on the ground.
As far as a client’s legal representation is concerned, most people look for an experienced lawyer and there is a general mistake that people make that they only consider either the experience or age of the lawyer. People often inquire about a lawyer’s age or how long they have been practicing law. While these questions may seem relevant, relying solely on a lawyer’s age or years of practice to gauge their competence can be misleading. Experience, though valuable, is not the only measure of a lawyer’s capability. What truly matters is their understanding of the law and their ability to apply it effectively to handle cases.
A proficient lawyer stays updated with changes in legal statutes, precedents, and procedures. Laws evolve, and so must the lawyer’s knowledge. Therefore, when choosing a lawyer for your case, it’s crucial to assess whether they are well-versed in current laws and capable of leveraging them to your advantage. The ability to adapt, strategize, and deliver results based on the latest legal framework is what distinguishes a truly skilled lawyer from the rest.
