There are two types of divorce under Hindu Marriage Act, 1955, first is Mutual Consent and second is without Mutual consent which is also known as Contested Divorce. If any of the spouse intends to dissolve their marriage, then the aggrieved can seek the relevant grounds of divorce according to their religion and personal laws. There are specific grounds on which divorce can be granted because court cannot simply grant divorce without seeking any reason.
Strong Grounds For Divorce:
There are some strongest grounds for divorce and an additional 5 grounds which is exclusively available for wife.
- Adultery: Adultery means when a person is already married and having an illicit sexual relationship with another men or women. Before the landmark judgment of the Supreme Court in Joseph Shine vs. Union of India, adultery was a criminal offense in India. But after this landmark judgment adultery is a ground for divorce and no more a criminal offense in India. So a husband or wife can file a divorce petition and dissolve their marriage if one of the spouses is indulging in extra marital affairs.
- Cruelty: The term cruelty was brought as a ground of divorce in the amendment of 1976 in the Hindu Marriage Act, 1955. Prior to this amendment, cruelty was not a ground for divorce. Basically there are two types of cruelty one is mental cruelty and the second is physical cruelty. Any conduct or behavior of one spouse which cause annoyance to another, cannot be amounted as cruelty. To constitute cruelty, the act or behavior should be grave and weighty (mere unhappiness with spouse due to high temper/whimsical nature is not cruelty). It must be so serious that cohabitations become impossible.
Act Which Is Treated As Cruelty:
- Actual or threatened physical violence.
- Verbal abuse and insult.
- Excessive sexual intercourse against the wish of wife.
- Unreasonable refusal to sexual intercourse
- Sexual dis-satisfaction of wife.
- Negligence of husband or wife.
- Ill treatment of children.
- Drunkenness/use of drugs.
- Forcing association with improper person and etc.
- Desertion: When husband or wife, without any reasonable cause, intentionally leaves him/her without the consent of him/her and starts living separately till two years so the aggrieved can file for divorce on the ground of desertion.
- Conversion of Religion: If the spouse has converted from Hindu religion to any other religion (not Jainism or Buddhism or Sikhism; but to Islam or Christian or anything of that sort). The other party can file for contested divorce.
- Unsound Mind: If one of the spouses is incurably of unsound mind or is suffering from such a mental disorder that the other spouse cannot reasonably expected to live with the respondent, the court, on petition by the aggrieved spouse, pass a decree of dissolution of marriage after being satisfied with the claim of the petitioner.
Mental Disorder Includes:
- Mental illness.
- Mental arrest.
- Incomplete development of mind
- Abnormal aggression.
- Seriously irresponsible behavior.
- Venereal Disease: If either husband or wife is suffering from any sexually transmitted disease which can also infect in communicable form then the other party can file for contested divorce.
- Leprosy: Previously, if the spouse suffered from leprosy of virulent and incurable form, the other spouse could file a divorce. However, this ground has been removed by the Personal Laws (Amendment) Bill, 2018 from all personal laws.
- Renunciation of World: If any of the spouse has renounced the world and has entered a holy order, the other spouse can file a divorce petition against the respondent. However, this renunciation must be absolute and indisputable. A person who renounces the world is declared as civilly dead.
- Presumption of Death: If a person is not seen or heard of being alive for a continuous period of 7 years, the person is presumed to be dead. This is a valid reason to file a contested divorce against the spouse.
Additional Grounds Available For Women Only
- Bigamy or Polygamy: Before the Hindu Marriage Act was made, there was no rule of monogamy. So a person could have more than one wife. So if any person had multiple wives before the act, his all wives but the last one, have the right to fight for divorce on the ground of monogamy after the act was made. However, husbands do not have any such right, as it was assumed that women do not marry multiple men. However all the couples married before the act might be too old to claim for divorce.
- Husband Guilty of Rape & Sodomy: If the husband is accused of rape, bestiality and sodomy, than the wife can file divorce on this ground.
- No cohabitation for one year: If husband is not cohabiting with wife without any reasonable ground for the period of one year. Wife can go for contested divorce.
- Option of Puberty: If during the marriage the woman was a minor (probably less than 15 and not 18), and after the act has now attained the age of 18; she was either forced in sex or marriage or was innocent, and now wants a divorce, can claim for it. However if a man was married as minor and is now an adult, he cannot claim on this ground, as it was assumed that the men cannot be forced into it.
- Following the procedure:
Step 1: So the first step of go for contested divorce is to contact a suitable lawyer so that he/she can handle your case and guide you accordingly.
Step 2: The second step of divorce procedure is to file a divorce petition in the Family Court in your jurisdiction.
Step 3: The next step after filing petition is service of summon to the Respondent. And according to the date of Hon’ble court both parties have to appear in court.
Step 4: once both the parties have presented their grounds through petition and reply, tail begins and the court hears both the parties with their witnesses and evidence.
Step 5: Step 5 is final order, where the court pronounces the final order dissolving the marriage and ends the court proceedings.
How Can A Lawyer Help In This Case?
With the right divorce lawyer, it is easy to get divorce without mutual consent. It is important to have a lawyer by your side who can guide you through this procedure. Consultation of an experience lawyer can help you in numerous way.
Actually divorce without mutual consent is little bit tough comparing to divorce with mutual consent. It needs lot of experience to tackle this kind of issues and satisfy the court with the ground.
Most of the people search an experienced lawyer and there is a common mistake which people do is they only notice the experience or age of the lawyer. They enquire from how long they are practicing law, what is his/her age etc. etc. But wait, you are committing a little mistake here, only age or long practice cannot make a lawyer experienced. The most important role for any experienced lawyer is knowledge of laws and his handling. So whenever, you will search a suitable lawyer for your case don’t forget to check either your lawyer is well versed with laws or not.
Law office of G.S. Bagga & Associates possess rich experience of handling divorce cases and has successfully won many for their clients. For any help or to discuss your case feel free to reach us at +91-1147069622.