Civil Procedure Code (CPC)

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SYNOPSIS

The legal term for dissolution of marriage or marital ties is divorce. Throughout the entire marital breakdown of marriage, the spouses suffer from emotional turmoil and the prolonged divorce proceedings in India can be mentally challenging. The process of divorce starts from fighting with emotional ups and downs to fighting the lengthy divorce proceedings to obtain a divorce decree from the court. In India, the entire process of divorce is complex, challenging and extensive legal affair wherein the prosecution period lasts from 6 months to several years based upon the complex facts and circumstances of each case. This article particularly discusses the process of getting a divorce in India including the various grounds that may be invoked in a divorce petition as well as the necessary documents for filing a divorce in India based on the laws applicable to the parties.

INTRODUCTION

India is a home to varied religious communities with their diverse set of marriage laws. The personal laws of different communities also provide their respective procedures relating to divorce which is applicable to the divorcing spouses of those communities. The Hindu Marriage Act, 1955 is binding to any person who is Hindu, Sikh, Jain and Buddhist and not a Muslim, Christian, Parsi or Jew. Therefore as per the provisions of law, all Hindus, Sikhs, Buddhists, and Jains are governed by the Hindu Marriage Act, 1955 and they can seek the legal remedy of divorce under this Act. The parties belonging to Muslim community can file a divorce petition under the Dissolution of Muslim Marriage Act, 1939. Similarly, marriage and divorce of people from Parsi community are governed by the Parsi Marriage and Divorce Act, 1936. The divorce under the Special Marriage Act, 1956 is available to spouses belonging to different communities and caste. If one of the divorcing spouses is of a foreign nationality, then Foreign Marriage Act 1969 is applicable to their marriages and divorce.

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In India, the legal procedures for filing for divorce are lengthy, costly and complicated , which take a of six months to conclude. Besides the physical strain, the prolonged divorce processes takes a toll on the mental health and emotional well-being of the estranged spouses. It is a long-drawn out process which includes production as well as verification of various documents. The parties are bound to follow the procedures involved for obtaining a decree of divorce. The absence of necessary documents makes the process even more complex and extend s the legal battle. The list of necessary documents may vary based on the grounds on which the divorce is sought.

GROUNDS OF DIVORCE

In the Hindu Marriage Act, there are some provisions relating to the grounds for obtaining a valid divorce in the court of law. Section 13(1) of the Hindu Marriage Act, 1955 states that either the husband or the wife can approach the court of law and file a divorce petition to dissolve the marriage solemnized before or after the commencement of this Act. The Fault Theory stipulates that the marriage can be dissolved only when either party to the marital relationship has committed any offence which is against the sanctity of marriage. In these cases, it is necessary in law to have a guilty and innocent party. Only the party who is innocent has the legal remedy to approach the court and seek the remedy of the divorce.

The divorce provisions under the Act are based on the fault theory where either the husband or the wife can sue for divorce on any of the nine faults mentioned under Section 13(1) of the Act. The two special fault grounds in Section 13(2) are available only to the wife whereby the wife can alone seek the divorce.

It is important to understand the personal laws applicable to people of diverse communities for their dissolution of marriage in India

• The Christians are governed by the divorce procedures under the Indian Divorce Act, 1869.

• All Hindus, Jains, Sikhs and Buddhists are governed by the divorce procedures under the Hindu Marriage Act, 1955.

• The Parsi couples follow the divorce procedures of the Parsi Marriage and Divorce Act, 1936.

• The Muslims are governed by the divorce procedures mentioned in the Dissolution of Muslim Marriage Act, 1939.

The 9 grounds on which a divorce can be filed are common in all the major enactments on divorce laws in India. These are as follows:

1. Adultery,
2. Cruelty,
3. Desertion,
4. Conversion,
5. Insanity,
6. Communicable Disease
7. Venereal Disease
8. Renunciation of the World and
9. Presumption of Death

Under Section 13(1) of the Hindu Marriage Act, 1955, a decree of divorce is granted on a petition filed by either the husband or the wife on any or more than one of the following grounds:

1. After the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or 

2. After the solemnisation of the marriage, treated the petitioner with cruelty; or

3. Has abandoned the petitioner for a uninterrupted period of not less than two years immediately before the petition is presented; or

4. Has converted to a different religion and ceased to be a Hindu; or

5. Has been incurably of unsound mind, or suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably expect to live with the respondent; or

6. Has been suffering from a virulent and incurable form of leprosy; or

7. Has been suffering from venereal disease in a contagious way; or

8. Has renounced the world by entering any religious order; or

9. Has not been heard of being alive for seven years or more by those persons who would naturally have heard of it.

Note: The Government of India recently introduced the Personal Laws (Amendment) Bill, 2018 to remove leprosy as a ground of divorce from the statute

The documents that are necessary for filing a divorce case in India on the grounds of "Adultery" under Section 13(1)(i) of the Hindu Marriage Act, 1955:

Adultery simply means voluntary sexual relationship outside the lawful marriage. A divorce can be filed on the ground of 'living in adultery' as contained under Section 13(1)(I) of the Hindu Marriage Act, 1955. A divorce on the grounds of adultery can be sought in India by the filing of the petition along with the necessary information.

The documents that are absolutely necessary by a divorce lawyer for filing the case on adultery are as follows:

• Proof of address of the husband.

• Proof of address of the wife.

• Marriage Certificate proving the marriage between the parties.

• A proof relating to the commission of the act of adultery.

• Evidentiary proof pertaining to involvement in a long-term adulterous relationship or cohabitation, if any.

• Photographs to prove the adulterous act between one partner and the third person.

• Statements of individuals who have witnessed the adulterous act.

• Evidentiary proof relating to engagement in a sexual intercourse after marriage with a person other than the spouse.

• If DNA evidence is present, then a person who tests DNA is necessary to find out the adulterous act of his/her spouse. In such a case, a sample will be placed before the court to record the results of the test

• Four passport size photographs of the marriage between the two spouses.

The documents that are necessary for filing a divorce case in India on the grounds of "Cruelty" under Section 13(1)(ia) of the Hindu Marriage Act, 1955:

A spouse can file a case for divorce when he/she is subjected to any physical or mental that is injurious to his/her life, limb and health. The documents that a legal professional requires while filing divorce cases on the ground of cruelty are listed below:

• Address proof of the husband

• Address proof of the wife

• Marriage Certificate of the spouses

• Medical reports showing proof of physical abuse

• Evidence indicating cruel behaviour

• Submission of copies relating to outrageous acts like publishing advertisements in newspapers, if any.

• Statements of individuals who have witnessed the cruelty

• Four passport size photographs proving the marriage between the divorcing spouses

The documents that are necessary for filing a divorce case in India on the grounds of "Desertion" under Section 13(1)(ib) of the Hindu Marriage Act, 1955:

The term 'desertion' means a total repudiation of one party of all the marital obligations. In other words, desertion means the permanent abandonment of one spouse by the other without any just cause or without the consent of the deserted spouse. The act of desertion can be a ground for obtaining divorce when a reasonable cause is present in the case and the act must have taken place without the voluntary consent of the other party.

The documents required for filing a divorce on the grounds of desertion are laid down as under:

• Separation of factum deserendi. (Deserdendi is the intent to desert one spouse)

• The reason to desert, also known as animus deserendi.

• Marriage Certificate of the parties

• Evidence showing that there is a total withdrawal of one spouse from the society of another for a period of two years. Proof must indicate that he/she was not carrying out his or her marital obligations for a total period of two years.

• Proof of address of the husband.

• .Proof of address of the wife

• Evidence to prove that there has been either constructive or actual desertion, as the case may be.

• Four passport size photographs of the marriage of the divorcing spouses.

• Evidence to prove that the desertion took place without the consent of the deserted spouse.

• Evidence indicating that the desertion happened without any reasonable and just cause.

Documents required to file a divorce on the grounds of "Conversion" under Section 13(1)(ii) of the Hindu Marriage Act, 1955:

Conversion simply means when the other party has voluntarily ceased to be a Hindu by converting himself/herself to any other religion such as Islam, Christianity, Zoroastrianism, etc. A divorce petition on the grounds of conversion can be presented before the court by the aggrieved party.

The documents required for filing a divorce on the grounds of conversion are laid down as under:

• Address proof of the husband

• Address proof of the wife

• Marriage Certificate of the spouses along with four passport size pictures showing the marriage between the husband and wife

• Evidence to prove that the other party has undergone a formal ceremonial conversion to another religion

• Testimony of witnesses or pictures if any, to prove the conversion of the other spouse

• Certificate of conversion

• Evidence showing that the conversion has taken place without any undue influence on the other party to get converted to another religion. It must be a voluntary conversion.

• Evidentiary knowledge that the conversion was done without any intent to get married to another person and the converted person has full faith in the religion in which he converted himself/herself.

Documents required to file a divorce on the grounds of "Unsoundness of Mind" under Section 13(1)(iii) of the Hindu Marriage Act, 1955 :

The expression "unsoundness of mind", also known as "mental disorder" means mental illness or partial development of mind. It can be a psychopathic disorder which means a continued disorder of the brain This type of mental abnormality results in aggressive or irresponsible behaviour of the other party which makes it impossible for the aggrieved party to live with his/her spouse.

The documents required for filing a divorce on the grounds of Unsoundness of Mind are laid down as under:

• Proof of address of the husband

• Proof of address of the wife

• Marriage Certificate showing the marriage between the two spouses along with four Passport size photographs indicating the performance of marriage between them

• Medical Certificate for proving the disorder of the mind

• Evidence to prove that two years have passed since the marriage between the parties

• Statement to prove that the petitioner married the spouse without knowing of the mental disorder at the time of marriage

• Proof to show that the other spouse has been continuously or intermittently suffering from such a mental disorder

• Evidence for proving the impossibility of the petitioner to live in a marital life with the other spouse (respondent).

The documents that are necessary for filing a divorce case in India on the grounds of "Venereal Disease" under Section 13(1) (v) of the Hindu Marriage Act, 1955:

As per the dictionary meaning, a venereal disease is a Sexually Transmitted Disease (STD) which is typically contracted by the sexual intercourse with an already infected person.

The documents that a legal professional requires while filing divorce cases on the ground of Venereal Disease in a communicable form are as follows:

• Proof of address of the husband

• Proof of address of the wife

• Marriage Certificate of the spouses to prove that they have married before three years and the disease is not yet cured.

• Four Passport size photographs of marriage between the two spouses.

• Medical Certificate of the other party for proving that he/she has been suffering from a venereal disease in a communicable form which can be transmitted to the other spouse (complainant) or their child.

• The Medical Certificate of the petitioner at the time of marriage to indicate that he/she did not carry the disease. This is required in order to prevent any fraudulent allegation against the other party.

The documents that are necessary for not complying with the decree of restitution of conjugal rights passed under Sec 13(1A)(ii) of the Hindu Marriage Act, 1955:

A guilty party is ordered by a decree of the court to live with the aggrieved party. This decree is known as the decree for restitution of conjugal rights. In case, if a party fails to comply with the decree for restitution of conjugal rights under the Hindu Marriage Act, then the following documents can be placed before the court. These are:

• Proof of address of the husband.

• Proof of address of the wife.

• .Four passport size photographs of the marriage between the husband and wife.

• The proof pertaining to the failure of either of the parties to comply with the decree passed under Section 13(1A)(ii) of the Act for restitution of conjugal rights.

• The proof relating to the ill-treatment, if any towards the innocent spouse by the guilty spouse that prevented them from abiding the court's decree.

The documents required for filing a divorce on the special grounds available only to a wife under Section 13(2) of the Hindu Marriage Act, 1955:

Apart from the above-noted grounds, there are certain other special grounds on which a wife alone can seek a decree of divorce under Section 13(2) of the Hindu Marriage Act, 1955. These special grounds available only to a wife are mentioned below:

1. Bigamy,

2. Rape, Sodomy and Bestiality,

3. Marriage solemnised before the attainment of the age of 15 years but she has repudiated the marriage before attaining the age of 18 years.

These grounds are discussed in detail below:

  • If the husband has remarried during the continuance of the first marriage without dissolving the marital ties with his first wife and if at the time of the solemnization of the second marriage, his first wife was alive, then the first wife can seek divorce on the grounds of bigamy. Hindu law prohibits bigamy and polygamy in a marriage as marriage is considered a sacrament
  • If the husband subjects the wife to any non-consensual and unnatural sexual intercourse, then the wife can seek a divorce on the grounds of rape, sodomy and bestiality.
  • If the marriage of the wife was concluded when she was a child below the age of 15 years and she has not accepted the marriage before the attainment of the age of 18 years, then she can file a divorce under this Act.

Mutual Divorce under Section 13(B) of the Hindu Marriage Act, 1955:

Another theory of divorce i.e., Mutual Consent Theory stipulates that the marriage can be dissolved by mutual consent if both the spouses mutually agree to end their marriage and givetheir consent for divorce. Section 13B of the Hindu Marriage Act, 1955 lays down the provision for divorce by mutual consent. Section 13B reads as under:

"Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, 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 following listed documents are required in the case of obtaining a mutual consent decree of divorce:

• Proof of address of the husband

• Proof of address of the wife

• Marriage Certificate of the divorcing spouses along with four passport size photographs of their marriage

• Details of their profession and present salary

• The statements of Income tax for the preceding 2 to 3 years

• Detailed information relating to family background of the petitioner

• Evidence showing that the spouses are living separately for above a time period of 1 year.

• Evidence to prove the failed attempts taken for reconciliation between the spouses.

• Details of properties and other assets owned by the petitioner.

The photocopies of the above-listed documents are to be submitted after the divorce petition is filed before the appropriate court. However, it is best to keep handy the original copy secured with the parties.

CONCLUSION

Irrespective of the different grounds on which a divorce can be filed, there are some documents that are absolutely necessary while filing a divorce petition on any of the grounds mentioned in this article. However, in order to prove certain actions or offences by the other party, certain documents are considered essential for filing a divorce on those particular grounds. Though the importance of documentary evidence cannot be neglected, it is not a fixed rule that without documents, a divorce petition cannot be presented before the court. The documents may vary sometimes depending upon each case. Documentary evidence is required to be produced to satisfy the facts and circumstances of each case, if it so requires


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