Marriages are said to be made in heaven, but marital bonds may not always prove to be heavenly. Bad relationship experience or several other reasons may lead to estrangement between couples, leaving no other way out but the termination of their marriage.
Through this article, we will discuss everything you need to know about getting a divorce when your wife or husband does not want to sign the divorce paper and you quickly want to sever your ties with them. The Hindu Marriage Act, which extends to Christians, Paris, Sikhs, and Jains in India, has laid the foundation for seeking a divorce.
Hindu Marriage Act, 1955
Divorce in India under the Hindu Marriage Act, 1955 can be sought in two situations:
- With mutual consent of both the parties and final settlement.
- Without mutual consent where one of the parties seeks a divorce.
Section 13 Of The Hindu Marriage Act
Section 13 of the Hindu Marriage Act explains the situations under which a person can seek contested divorce when the other party is not ready for a divorce with mutual consent.
1. Adultery: Having sexual intercourse outside marriage is termed as adultery and is a valid ground for divorce without mutual consent.
2. Cruelty: Any kind of physical or mental injury that causes fear or belief of fear of death, or health. It is important to note that the mental cruelty is also a valid ground for divorce normally judged as subsequent acts and not a single act. The case of Neelu Kohli vs. Naveen Kohli, AIR 2004 falls into this category. However, the court ruled out the divorce petition in the case of S Hanumanta Rao vs. Ramani, AIR 1999 as a single instance cannot be proven as mental cruelty.
3. Conversion: If one of the spouses converts to another religion, it forms a valid ground for contested divorce.
4. Desertion: If any of the spouses has deserted the other for a period of a minimum of two years, the victim can file for the divorce.
5. Mental disorder: If the spouse contesting for the divorce can prove insanity or mental disorder on the part of the other party, can form a ground for divorce. The case of B.N. Panduranga Shet vs. S.N. Vijayalaxmi, AIR 2003 is a testimony to this ground.
6. Leprosy: The virulent and incurable form of leprosy of the partner can form a valid ground for divorce.
7. Venereal diseases: A serious and sexually transmittable disease like aids which is categorized as venereal disease forms a ground for divorce without mutual consent.
8. Renunciation: If a partner is embracing a religious order by renouncing all the worldly affairs, the other partner can file for divorce.
9. Missing/Has not been heard from: If a partner has been absent from marriage for at least seven years, has not been heard from and there is no evidence of their being alive, the other partner can file for divorce.
10. No resumption of cohabitation: After filing for divorce when the court orders for the couples to continue living jointly if the couple fails to cohabitate, it becomes a ground for divorce.
Basis any of the above grounds, a partner can file for divorce without mutual consent in a family court with the help of a competent lawyer.
Section 13B, however, deals with divorces with mutual consent which, after competition of the compulsory reconciliation period of six months, take about six to seven months.
Section 13 (2) Of The Hindu Marriage Act
A wife has rights or specific grounds on the basis of which she can file for divorce without mutual consent as laid down by the Section 13 (2) of the Hindu Marriage Act.
1. If a husband is marrying another woman while the first wife is alive at the time of the second marriage and the second marriage is celebrated in the same fashion as that of the first marriage, which makes the second marriage void. The wife, in this case, can apply for divorce. This offense is also punishable under Section 494 of the Indian Penal Code.
2. If the husband is proven to be guilty of rape, sodomy or bestiality which means savagely cruel behaviour towards the wife, the wife can seek a divorce without mutual consent.
3. Section 5 of the Hindu Marriage Act also states that a wife can seek a divorce without mutual consent if the marriage was solemnised before her attaining the age of 15 which she abandoned before attaining the age of 18.
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