In India, we face lot of people who approach Court seeking divorce.For past two decades the rate of divorce cases has been increased due to different reasons like desertion, adultery, domestic violence (cruelty) etc. Since people in India are governed by different laws, there is always a confusion in the matters relating to divorce.As a whole Hindus, Sikhs, Buddists, Jains are governed by Hindu Marriage Act 1955,Christians are governed by Indian divorce Act 1869,Muslims by Dissolution of Muslim Marriages Act 1939 and Parsis by Parsi Marriage and Divorce Act 1936.
Who can file a divorce petition and Jurisdiction of Courts:
Section 13 of Hindu Marriage Act 1955,section 27 of Special Marriage Act 1954,section 10 of Indian Divorce Act 1869 and section 32 of Parsi Marriage Divorce Act 1936 are dealing with divorce. According to section 13 of Hindu Marriage Act 1955 any husband or wife can file a divorce petition before the competent Court of law seeking remedy. Competent Court refers to any District Court where either of the parties resides or the place where the matrimonial home is located.After the establishment of Family Courts Act 1984,all the cases which are related to family affairs like marriage,divorce,maintenance,child custody,etc.,has been dealt by Family Court and in the absence of Family Court in particular territory,District Court will try the case in this regard.
Grounds for filing divorce and the remedies available:
A husband or wife can file a divorce under any of the following grounds[i]:
- Desertion – deserted his or her spouse without any fair reason for a period of not less than 2 years immediately preceding the date of filing the petition.
- Incurably unsound mind and impotent
- Renunciation – renounced the world and becomes sanyasi.
- Presumption of death – he/she has not been heard for the period of not less than 7 years.
- Suffering from vulnerable disease – diseases which are contagious in nature and reported as incurable by experts.
- No resumption of cohabitation for a period of more than one year after the completion of judicial separation period.
- Separation of parties for a period of more than one year even after passing decree for restitution of conjugal rights[ii]
- The husband is guilty of rape or sodomy or bestiality since the solemnization of marriage.
Persons who have engaged or indulged inter caste or inter religion marriage are governed under Special Marriage Act 1954 and if either of the spouse belongs to different nationality then they will be governed by Foreign Marriage Act 1969.
Other than obtaining divorce there are other remedies which includes interim alimony[iii],permanent alimony and child custody[iv].A wife can claim for maintenance under section 25 of Hindu marriage act 1955 or under section 18 of Hindu Adoption and Maintenance Act,1956.To grant the decree of permanent alimony(maintenance),the Court shall consider the income of the husband,property of the husband in which a wife has legal right to claim.It may also determine the permanent alimony depending upon the ability of wife(her income and earnings) and her financial position.If the wife is earning and if the Court feels that she can lead a comfortable life solely in her income then the Court may not award for maintenance.Only a legally wedded wife can claim maintenance under this section[v].The period of maintenance shall continue to exist until the wife remains chaste or until she remarries another person or such other period mentioned by the Court.
Maintenance under Code of Criminal Procedure 1973:
A wife can also claim maintenance under the Code of Criminal Procedure1973[vi] if she is unable to maintain herself.But this claim for maintenance is subject to certain restrictions that if the wife is living in adultery or if she deserts her husband without any sufficient reason or refuses to live with her husband or living separately by mutual consent,then she will not get maintenance from her husband and the Court shall cancel such order if it finds such ingredients. The Apex Court held that a wife can seek relief under Domestic Violence Act even after obtaining maintenance under section 125 of Code of Criminal Procedure1973[vii] since there is no bar in law. If a wife has filed any suit for maintenance other than the claim under section 125 of Code of Criminal Procedure1973,then the Court shall determine the amount of maintenance by considering the decree issued earlier.If the Court awarded any interim alimony or the expenses of proceedings which is to be paid by the respondent,then such amount shall be adjusted in the amount of maintenance granted under section 125 of Code of Criminal Procedure1973.
Regarding the custody of child after the divorce between the parties,the Court shall order either of the parents to maintain the expenses of custody and education of children.Even the children who were born out of illegal or void or voidable marriage can get the maintenance and custody as that of legitimate child[viii].
Remedies available under different Acts against cruelty :
Since cruelty is a ground for divorce the aggrieved person can also file a criminal suit against the respondents under Indian Penal Code 1860 or Protection of Women from Protection of Women from Domestic Violence Act 2005 or under Dowry Prohibition Act 1961.Under Protection of Women from Domestic Violence Act 2005,an aggrieved person can get either monetary relief under section 20 or child custody under section 21 or compensation under section 22 or any interim relief/ex parte under section 23.The main question arises here is whether the Domestic Violence Act is civil or criminal ? By giving clear interpretation to the intention of statute it is very clear that the Domestic Violence Act is civil in nature and not criminal[ix].
Under section 498A of IPC a husband and his relatives are liable to be punished upto 3 years of imprisonment and also with fine if they have driven the women to commit suicide or causing any grave injury(physical and mental).Even though the word ‘dowry’ has not been included in this section,offence of demanding dowry also fall under this section since it implies the words ‘unlawful demand for any property or valuable security’[x].Recently Supreme Court held that since 498A IPC is a cognizable and non-bailable offence it is used as a weapon by disgruntled wives rather than as a shield.Hence the police officers should follow the guidelines laid down by the Court with respect to arrest made under 498A IPC or section 4 of Dowry Prohibition Act 1961,which has to be done based on reasonable satisfaction with genuineness of allegation[xi].
Lot of new judgements has been pronounced with respect to cases of cruelty in recent years.According to section 177 of Code of Criminal Procedure1973 a criminal case can be filed in a Court which has competent jurisdiction over where the crime had occurred.But the SupremeCourt held that a woman can file harassment case anywhere which is different from the jurisdiction of her matrimonial home[xii].Regarding the cases filed under Protection of Women from Domestic Violence Act 2005,the SupremeCourt held that a woman who has suffered any kind of domestic violence which includes physical abuse,sexual abuse,verbal abuse,emotional abuse and economic abuse[xiii] while sharing the household with her husband at any point of time can seek relief under this Act even after the decree of divorce had been granted.Hence the decree of divorce granted shall not be a bar anymore for claiming relief under Protection of Women from Domestic Violence Act 2005[xiv].
Adultery – Criminal offence or not ?
The criminal offence of Adultery under section 497 of IPC is no more an offence since it has been struck down as invalid as it was violative of Art 14,Art 15(1) and Art 21 of Indian Constitution[xv].But still it is a ground for filing divorce.
As it is mentioned earlier,the cases for dowry harassment,cruelty and any kind of domestic violence can be filed along with the divorce petition under Indian law.And the claim for interim and permanent alimony and child custody can be filed in the petition of divorce itself as one of the pleadings and if the petitioner fails to include the claims while filing the divorce petition then a separate petition can be filed with respect to the particular claim in competent Civil/District Court or Family Court.Moreover Indian laws provide sufficient protection to women and other aggrieved persons through necessary amendments in laws governing family affairs as well as harassment which is the most needed thing in the current scenario.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i]Hindu Marriage Act,1955,S 13(1) & S 13(2).
[ii]Hindu Marriage Act,1955,S 9.
[iii]Hindu Marriage Act,1955,S 24.
[iv]Hindu Marriage Act,1955,S 26.
[v]Yamunabai Anantrao Adhav V. Anantrao Shriram Adhav (1988)1 SC 530.
[vi]Code of Criminal Procedure 1973,Chapter IX,S 125(1)(a).
[vii] Shome Nikhil Danani V. Tanya Banon Danani, CRL.REV.PET-994/2018.
[viii]Hindu Marriage Act,1955,S 16.
[ix]Vijaya Bhaskar & others V. Suganya Devi, Crl.O.P.(MD).No.10280 of 2010 and M.P.(MD) Nos 1 & 2 of 2010
[x]Indian Penal Code 1860,S 498A(b).
[xi]Arnesh Kumar V. State of Bihar, AIR 2014 SC 2756.
[xii]Rupali Devi V. State of U.P and others, SLP (Crl) No.5139/2014.
[xiii]Protection of Women from Domestic Violence Act,2005,S 3.
[xiv]Juveria Abdul Masjid V. Atif Iqbal Mansoor & another, Criminal Appeal No.2069 of 2014.
[xv]Joseph Shine V. Union Of India, 2018 SC 1676.