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The concept of divorce was not known to old Hindu law, though it was recognized through customs among Hindus, In Differents parts of the country and with passing of time people start giving importance to individual liberty as a result , idea of divorce gradually developed among people to live a happily separate life rather than living a miserable marital llife, with need of the time modern Hindu law start recognizing concept of divorce, as a consequences of which Hindu marriage ACT,1955 was enacted.

Requisites for valid Hindu marriage

Before understanding , Concept of Divorce first one need to understand the condition for valid marriage which is given under section 5 of Hindu marriage which read as :
5 Conditions for a Hindu marriage.

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
  1. neither party has a spouse living at the time of the marriage;
  2. at the time of the marriage, neither party
    1. is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
    2. 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
    3. has been subject to recurrent attacks of insanity 3 [***];]
  3. the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age of 5 [eighteen years] at the time of the marriage;
  4. 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;
  5. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two

Other relief available before divorce:

Before going for harsh and difficult step of Divorce, there are other alternate legal relief is available to parties to marriage and few of those remedy are:
Restitution of conjugal rights: where either party to the marriage has left his/her matrimonial home without consent of other spouse and without reasonable cause, than the other aggrieved party may file a petition for restitution of conjugal rights before court and praying from such court to pass an order directing such other defaulting party to go and reside with his husband in there matrimonial home.

Consequences of not complying the order:

  1. attachment of property of defaulting spouse.
  2. conduct of the defaulting party in non compliance of order is generally considered, awarding maintenance
  3. non resumption of cohabitation for more than one year after passing decree of while restitution of conjugal right is one of the ground granting divorce.

Judicial separation:

sometimes party decides not to end there marriage and therefore they decide to live separately and without any pressure from other spouse and in such situation they can pray for decree of judicial separation. The effect of such decree is that after such decree it would be no longer obligatory for party to live together and marital rights and obligation are suspended, it is worth mentioning that such a decree does not bring an end to marital ties its only suspend such marital relation for the time being.

Void and voidable marriages

The difference between both the term is that in case of former the marriage is null and void from its inception meaning thereby that in the eye of law such marriage is no marriage at all. While in latter the marriage is not bad from its inception but it can be declared invalid at the option of other party.

When a marriage is void : a marriage is void if it is contravention of condition mentioned in clauses.... of section 5 (mentioned above in beginning)

When a marriage is voidable: see section 12 of Hindu marriage Act

In case of void marriage any party to marriage can pray for a declaration of nullity from court . it needs a mention here that filing such petition for declaration in void marriage is only a formal act and not mandatory meaning thereby that such a marriage will have no effect even if no such declaration is obtained from court, the only purpose for praying for such a declaration is to get legal proof or judicial recognition of established facts. In Ram Pyari V. Dharam , AIR 1984 All 147, a decree of nullity under the present can only be asked by parties to marriage only and not by any third party. however, any party affected by such illegal marriage can file a suit for declaring such marriage void.

In case of voidable marriage, a party can pray for decree for annulment of marriage and praying for such decree is mandatory, a party cannot itself assume end of marital relation until or unless such a decree of annulment of marriage is passed by the court. in Samir adhikary v. Krishna adhikary AIR 2009 Cal 278, it was held that wife being infertile, despite normal sexual activity is no ground for annulment.

No petition before one year of marriage

According to section 14 of the Act no petition for divorce shall be allowed by any court except one year has elapsed from the date of marriage. However the court can allow petition for divorce before one years if the case is of exceptional hardship to the petitioner by granting leave to present a petition before one year on application being made by the parties in accordance with the rules laid down by state high courts with respect to such applicaton.

Divorce (section 13)

A petition for divorce can be made by either party to the marriage on grounds that respondent:
  1. had sexual intercourse after marriage with any person other than his/her spouse.
  2. had committed cruelty on petitioner.
  3. had deserted petition for not less than two years before presentation of petition
  4. has ceased to be a Hindu by conversion to other religion except Sikhism, Buddhism and Jainism
  5. is of incurable unsound mind, or suffering from mental disorder of such a kind that petitioner cannot be expected to live with him/her.
  6. is suffering from virulent and incurable form of leprosy.
  7. is suffering from veneral disease in communicable form.
  8. renounced the world, e.g.sanyashi
  9. has not been heard of as being alive for a period of more than 7 years.

Other Additional ground in case of petition by wife on the grounds that respondent:

  1. had married again before commencement of the Act and such other wife is alive at the time of presentation of petition
  2. has been guilty of sodomy, bestiality and rape after such marriage.
  3. since the passing of decree for maintenance against respondent, cohabitation between parties is not resumes for one year or upwards
  4. that her marriage with respondent has solemnised before she attained age of 15 years and she had repudiated marriage after attaining that age but before attaining age of 18 years.

Irretrievable breakdown of marriage:

Along with all the grounds for divorce as mentioned aforesaid , irretrievable breakdown of marriage is another ground for divorces which has emerged out of judicial pronouncements ,though such ground Is not categorically mentioned in the statute.

This ground Is invoked in cases where there is no feeling of love, care, affection is left between spouses from a prolong period and various attempts to bring settlement have failed, the parties are living separately from long period without mutually agreeing etc. divorce on this grounds depends on the facts and surrounding circumstance of each cases and there are no ironcast rule even those aforesaid mentioned that can come under this clause.

The apex court in case of Naveen Kohli V. Neelu Kohli AIR 2006 SC 1675 has held that irretrievable breakdown of marriage is a ground for divorce.

This following statement of the supreme court is worth mentioning in present context:
Once the marriage is marriage has break down beyond repair, it would be unrealistic for the law not to take notice of the fact, and it will be harmful to the interest of the parties and society by refusing to severe that tie, the law in such cases does serve the sanctity of marriage; on the contrary it shows scant regards for the feelings and emotions of the parties. The law cannot turn a blind eye to such situation, nor can it decline to give adequate response to the necessities arising there from.

Divorce by mutual consent
Section 13B OF Hindu marriage ACT deals with procedure of divorce by mutual consent between parties.

This section is summarised as under:
A petition for dissolution of marriage signed by both the spouse is required to be presented before the court on the ground that they have been living separately for a period oof one year or more, that they have not been able to live together, that they have mutually agreed that marriage should be dissolved.

On petition being presented before the court the court shall give six month time period to parties . the object behind waiting for six months period before granting divorce is to give some time to parties to bring conciliation between them and to withdraw the divorce petition if they so desire.

On failure of parties to reach on an amicable settlement within period of six months, the court will inquire into the facts mentioned in petition for divorce and after being satisfied that there are no chance of settlement between parties the court will passed decree for divorce.

It is noteworthy point, that even in petition for divorce by mutual consent the court is not bound to grant divorce, if the court is of the opinion that there are chances of peaceful settlement between parties or of saving there marital ties.

In Amardeep Singh v. Harveen kaur, (2017) 8 SCC 746 The time period for waiting for six month before granting divorce is discretionary for courts and not mandatory. Even though it is not mandatory the court should not grant divorce before six months except in some exceptional cases where adherence to such statutory period Is of no significance or would cause more hardship to the parties on the facts of the case.

Important provision governing proceeding under the Act:
Section 23 of the present Act very relevant which laid down some important rules regarding commencement and regulation of the proceeding under the Act. This rules are summarised under:
No relief should be granted:
  • where the petitioner is taking advantage of his own wrong except the grounds mentioned in sub clauses (a),(b),(c) of clause (ii) of section 5
  • where The petitioner has been accessory to or connived or condoned the Act of cruelty where the ground for petition is cruelty.
  • Where the consent of other part to proceeding of divorce by mutual consent has been obtained by force, fraud, undue influence.
  • Where the petition is presented in collusion with respondent.
  • Where there has been improper and unnecessary delay in instituting proceeding.
  • There is other ground for not granting relief.

Agreement for divorce:

Dissolution of Hindu marriage is allowed only in accordance with the rules laid under Hindu marriage act and in no other ways except any custom providing otherwise.

In a case where the parties had entered in an agreement of divorce in absence of any custom governing such divorce the court had held such agreement being null and void and of no effect. A divorce under between the Hindus can take place only in accordance with the act unless otherwise provided in any custom governing such parties.

Written By: Deepak Sharma
Email id: [email protected], Phone no: 8383947263

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