Procedure and grounds for divorce when couple not living together?
My friend has been married for 7 months now. They’ve been married legally but they are not living together. Please tell us the procedure to file the divorce.
First of all, we should tell you that as you are good friend of one of the spouse you can go a extra mile to make things better and try to reconcile them. Divorce must be the last option when all the options of reconciliation have been exhausted.
Assuming your friends are both Hindus they can apply a divorce under Mutual Divorce and it is recognized under Section 13B of the Hindu Marriage Act.
Section 13B states that the parties can jointly move a petition for dissolution of marriage by a decree of divorce in the District Court on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
The Court shall then record the joint statement of the Parties and pass a First Motion Order giving time of 6 month to the parties to resolve their dispute, however in case the parties are unable to resolve the issues within the stipulated time, the Court shall pass a decree of Divorce. So therefore, divorce by mutual consent takes about 6-7 months.
The general rule is the divorce by mutual consent is filled by both parties jointly and their joint statement is recorded in the court which is signed by both in presence of their lawyers and the Family District Judge. This process is repeated twice once when the joint petition id filled also called first motion and after six months, which is referred as second motion.
After this process is complete, Judge is satisfied of the consent of both for divorce all issues like custody of child if any, permanent alimony and maintenance, issue relating to return of stridhan of the wife and settlement of jointly owned properties, divorce is granted.
You should enter into a Settlement Agreement with your wife with respect to the terms and conditions of the divorce. This should specify the distribution of assets such as stridhan etc., maintenance/alimony payable by you post divorce, that this amount would be a full and final payment and no party shall have any other rights as against the other party. And get this Agreement signed by 2 witnesses.
In any of the spouse is not ready for the mutual divorce, then anyone can file a petition under any of the grounds mentioned under Section 13(1) of the Hindu Marriage Act. The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.
1. 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.
2. 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 etc are included under cruelty.
3. 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.
4. Conversion – In case, either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
5. 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.
6. Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
7. 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.
8. Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
9. 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.
10. 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.
1. If the husband has indulged in rape, bestiality and sodomy.
2. 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.
3. 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.
4. 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.
Kindly contact us for any further details and action.
- Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at LawRato.com and has been responded by one of the Divorce Lawyers at LawRato.com to address the specific facts and details. You may post your specific query based on your facts and details to get a response from one of the Lawyers at LawRato.com or book a Detailed Consultation with a Lawyer of your choice to address your query in detail.
Get Started >>