CHANAKYA NATIONAL LAW UNIVERSITY

HINDU WOMEN AND RIGHT TO DIVORCE

Submitted to Dr. Sehwal Satyarthi
Faculty Of Family law

Shubham Mishra
Roll- 1649
2016-2021
3rd Semester
1
ACKNOWLEDGMENT
I am feeling highly elated to work on under the guidance of my Contracts law II faculty. I
am very grateful to him for the exemplary guidance. I would like to enlighten my readers
regarding this topic and I hope I have tried my best to bring more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project was not
possible. Apart from all these, I want to give special thanks to the librarian of my university
who made every relevant materials regarding to my topic available to me at the time of my
busy research work and gave me assistance.
RESEARCH METHODOLOGY
The method used for research is the doctrinal method and involves research in the library and on
the internet.

Areas of limitations- data of the research study will have it’s limitations due to the lack of
sufficient financial resources and limited time allotted for the research

Sources of data- this will include sources like books on world history, websites, encyclopedias
etc.

AIMS AND OBJECTIVES

• To study the concept of divorce.

• To study the provisions for divorce under Hindu Law.
• To study the grounds for divorce under Hindu Marriage act, 1955.

HYPOTHESIS

The general rule to be gathered from these is that a Hindu wife cannot be absolutely abandoned
by her husband. If she is living a unchaste life, he is bound to keep her in the house under
restraint and provide her with food and raiment just sufficient to support life; she is not entitled
to any other rights. If however she repents, and performs the expiratory rites, she becomes
entitled to all conjugal and social rights.
Table of Contents
INTRODUCTION .......................................................................................................................... 5
SOCIO-PSYCHOLOGICAL PROBLEMS OF DIVORCED WOMEN AND ADVICE FOR
WOMEN GETTING DIVORCE. ................................................................................................... 8
DIVORCE IN ANCIENT INDIA ................................................................................................. 12
Marriage as a Sacrament. .......................................................................................................... 12
Woman, The Temptress and the Goddess................................................................................. 13
LEGAL BACKGROUND ............................................................................................................ 15
1. DIVORCE WITH MUTUAL CONSENT ............................................................................ 15
2. CONTESTED DIVORCE .................................................................................................... 17
3. VOID MARRIAGES ............................................................................................................ 21
CONCLUSION ............................................................................................................................. 22
BIBLIOGRAPHY ......................................................................................................................... 23
INTRODUCTION

Divorce is the final and legal termination of marriage. It is often seen as one kind of mechanism
for dealing with the pressures caused by marriage. Divorce is often resorted when it is found that
continuing an unhappy and unsatisfactory marriage is not only imposing heavy costs on the
entangled spouse but also on their children.

This project would at first deal with the social problems faced by a woman as a result of divorce,
this according to the researcher is important for the subject in discussion as it would help him in
putting forward his argument that there must much more flexibility in providing for the right of
separate residence of a Hindu woman.

The researcher after this would discuss the legal background and would discuss Section 18(2) of
The Hindu Adoption and Maintenance Act, 1956 in details. This lays down the conditions under
which a wife may be awarded a separate residence. He would also discuss certain article of the
Hindu Marriage Act, 1955 in order to explain these conditions in details. The researcher would
also present a comparative case study while discussing each of these articles.

But due to the limited knowledge of the researcher, he is unable to provide newer grounds on
which further discussion may be possible, but he would rather into view the issues that were put
forward in other cases in this regard. The researcher hypotheses that the present provision for
providing separate residence during marriage is still insufficient and much is required from the to
improve this position.1

"The general rule to be gathered from these is that a Hindu wife cannot be absolutely abandoned
by her husband. If she is living a unchaste life, he is bound to keep her in the house under restraint
and provide her with food and raiment just sufficient to support life; she is not entitled to any other
rights. If however she repents, and performs the expiratory rites, she becomes entitled to all
conjugal and social rights. But she always claim over a bare maintenance and residence."

India is a country with a diversified culture and a web of a number of religions. Each of these
religions has their own personal laws, and these diversifications sometimes gives rise to conflicts.
A Hindu is someone who can be put under the ambit of the following point:

1. All those persons who are Hindus, Muslims, Sikhs, Jains and Buddhist by religion, which
also include the converts and the reconverts.
2. All those persons who are not Muslims, Christians, Parsis or Jews who have domiciled in
India and to whom no other law is applicable.

1
http://www.legalserviceindia.com/articles/fam.htm
According to the Oxford Dictionary ‘residence’ means, to dwell permanently or for a considerable
period of time, to have one’s settled abode, to lie in, or at a particular place. In the case of Kumud
v. Jatindranath the court construed the meaning of a residence as, a place where a person eats,
drinks, and sleeps or where a family eats drinks and sleeps. Physical presence and intention in a
place for a sufficient period of time are essentials of a place to be termed as a residence. Another
aspect that must also be look into while deciding a place to be a residence must be the duration of
stay.

Domicile as a concept can be traced out of certain social needs. Law imputes domicile to every
person and an adult has the independence of choosing his own domicile, or the domicile of choice.
No person would be allowed to live without a domicile but also cannot have more than a place of
domicile; this is called lex domicili or law of domicile. Section 3, of the Domicile and Matrimonial
Proceedings Act, 1973; in England no person who is under the age of 16 cannot marry but if he is
married lawfully under that age then he is entitled to a separate domicile. One has also to take into
contention the idea that until a person acquires a separate and new domicile there is no way that
he ca forfeit his domicile of origin.

In English Law, a woman who is married acquires the domicile that is shared by her husband and
retained it throughout the covertures and whatever be the circumstances she was not able to acquire
for a separate domicile. Thus in cases of mutual separation by agreement or even separated through
a decree of judicial separation she had to continue be in the domicile of her husband. Even in cases
of desertion, though the husband was allowed to attain a new domicile the wife had no remedy as
such and had to continue in her husband’s domicile. Lord Denning, while giving a judgment in the
case of Gray v. Formosa, said it, the last barbarous relic in wife’s servitude. But this position has
been changed by the Domicile and Matrimonial Act, 1973, whereby a married woman may retain
or acquire a new domicile like any other person.2

But the sad part of the whole story is that Indian Law still follows the theories that were followed
by the old English Law and thus underlies the principle that the wife would have the same place
of domicile as the husband during marriage. Though in the Indian Succession Act, 1925, provides
for two instances through which a woman can acquire a separate domicile such as that under decree
of separation.

Divorce has been seen to exist in the Indian society from the very early ages in different forms.
But the question that arises is that does the divorce decree automatically end a marital relationship.
Years of emotional and physical closeness, mutual dependencies and ingrained habits of living
together, these mutual bonds cannot be broken in a single stroke of a divorce. And the woman
generally faces the entire social and mental trauma. Not only is she affected by the repercussions
of the divorce but the incidents leading to the divorce also affect her greatly. It is during this time

2
• Kumud Desai, Textbook on Indian Law of Marriage and Divorce (2016 ed.)
that she should be allowed to have a separate residence. Even during the cases of separation and
desertion the wife must be awarded the right to a separate residence. Section 18(2) of the Hindu
Adoption and Maintenance Act, 1956 puts down the grounds on which a wife may be awarded the
right to a separate residence. This section confers a statutory right on a Hindu wife to live
separately without forfeiting her claim for maintenance during the lifetime of her husband. She
has to fulfill any one of the seven grounds provided under the section and must not cease to be a
chaste Hindu.

With regard to the present scenario this project would put forward a comparative analysis of the
reasons for which a Hindu woman must be awarded rights of a separate residence. The researcher
though would not discuss the three cases separately, as he had planned to do during the rough draft,
but would do so under the chapter of Legal Framework. He would also not discuss the topics of
Judicial Separation and Restitution of Conjugal Rights in details as he found out during the course
of further research that their separate mention would in no way serve the purpose of putting
forward to the readers the concept of Separate Residence. Rather he would be concentrating on the
Social-psychological problems of the divorced woman and then discuss the grounds on which such
a claim can be made separately.3

3
https://en.wikipedia.org/wiki/Women_in_Hinduism
SOCIO-PSYCHOLOGICAL PROBLEMS OF DIVORCED
WOMEN AND ADVICE FOR WOMEN GETTING DIVORCE.

In the world famous movie Apur Sansar the director had very beautifully portrayed he social
position that a single woman has to face. To save Aparna from that ridicule Apu had to marry her.

Those couples whose lives are torn by family tensions maintain their formal and legal solidarity
for reasons of religious faith, prestige, family pressures, children etc. But when the rift in the family
becomes unbearable and the marital bond is irretrievably broken, there is the desire to escape the
burden and responsibility of marriage ties.4

Divorce is always a tragic end to a marital relationship. Divorce can be conceptualized in terms of
multiple losses- loss of a valued social role, loss of an intimate relationship, loss of an adult
household member, loss of a source of income, loss of familiar residence and regular contact with
the children.
The problem generally arises of the women who have to lead a single-parent family or even as a
single individual. One has to keep in mind the several years of emotional and sexual closeness,
mutual dependence and the habits of a marital life cannot be struck off by a mere decree of the
court. On the part of a woman it is very difficult to forget these dilemmas. She has to re-adjust to
the new life which on part of her is no less than a challenge. Emotional consequence of the divorced
women manifested in such behavioral symptoms as depression, loneliness, tendency to cry easily
etc. Though there may be many cases where the woman has escaped from mental and physical
cruelty that she was suffering from, but after the separation they always felt lonely due to the fact
that they felt abandoned by the society. Women in India are dependant on their husbands for a
emotional intimacy, which is broken by this divorce leaving a scar on the minds of the wife.

Most of the divorced women have a grief as real as though they have been widowed. The extent
of mental and emotional trauma that can be created by divorce is immense, especially as the
women are not prepared to deal with it. They find that the problems they thought were grave
immediately after divorce were found to be less severe with time as other problems took in its
place.

Apart from the personal mental trauma that they have to face due as a result of this separation but
have to face certain amount of ridicule from the society itself. In many cases they even not accepted
by her own parents. Divorced women are considered to be a burden on the parents as they think
that a girl is a property of her in-laws after they have married her off, and even given a dowry.

4
http://www.livestrong.com/article/103381-psychological-effects-divorce-women/ -article by Ashlea Campbell
These women are continuously reminded of the fact that they are a financial burden to the family,
and if she is living with her brothers, then she is subjected much more humiliation.

The communities also don’t receive these women very cordially. The divorced parties not only
bring about shame to themselves but also to their families. It is a public confession of failure in a
private, highly personal and highly intimate relationship.

A divorced woman even is treated to be without morals and thus her neighbours and friends also
start to abstain from her as they think that mixing up with her would bring a bad name to them.
These women are the topic of the gossips within the communities.

These divorced woman thus generally don’t socialize or owing to the ridicule fear to do so. They
avoid the social functions as they feel that going there alone would be making a fool of themselves
among all the married couples. Thus it becomes important on part of the court to provide her with
a separate to give her a sense of independence and allow her to forget her stigma and shock that
she may have faced.

Understanding the psychological effects of divorce can help one move forward after the end
of a marriage. Many of the feelings after a divorce are perfectly natural as one may experience
confusion and uncertainty about the future. Similarly, learning how these feelings may affect one's
ability to connect with other family members, such as children, is important, as well.

Feeling Guilty
The psychological effects of divorce on women are far-reaching, but one of the most basic
emotions is guilt. This can be true if the woman initiated the divorce or not. Women in both
situations may feel at fault for not working hard enough to make the marriage work, explains life
coach Cindy Holbrook on her website for divorced women. If the woman initiated divorce, she
may feel a sense of guilt for the demise of the marriage. This is especially true if there are children
involved as women may feel as though they are responsible for breaking up a family and causing
emotional trauma.

Experiencing Depression
The end of a marriage is devastating to both parties. Women, especially, may feel saddened by the
sudden loss of their marriage. Their dreams for the future may be wrapped up in their marriage,
and now that hope for the future appears to be gone. Increased responsibility combined with the
realization that the life they envisioned no longer exists correlates with the fact that women are
more likely to suffer from depression three years after a divorce, suggests Rocky Mountain Family
Council.

Feeling Anxious
After a divorce, one may experience a great deal of anxiety. The future is uncertain and therefore,
so is one's security. Women may experience more stress as they may have solely or mostly relied
on their husbands for financial support. Trying to figure out how to support themselves, and often
times a family, may prove to be difficult. Despite this, there are many things one can do to lessen
anxiety including eating healthy, meditating and exercising.

Positive Effects
Some of the effects of divorce can affect women's lives positively. There are many factors that
influence this, but many women report feeling a sense of relief especially if the relationship was
particularly stressful towards the end. Mediator Kathleen O'Connell Corcoran explains that women
may have a greater support system than men. Because of this, when they experience setbacks, they
are likely to turn to them for comfort and guidance and move through the issues. Finally, women
may be more likely to expand their personal and professional roles, suggests Corcoran. In the past,
they may have limited themselves by focusing solely on their duties as wives and mothers. Now,
they may seek out new careers, volunteer opportunities and social networking that will increase
their esteem.5

Being a woman, emotions are primary to you. But dealing with divorce means putting aside
emotions and thinking logically, step-by-step, about what it will cost you, financially, socially and
legally.

1. Get Yourself Acquainted – Most women, especially in India, consider marriages to last
forever. Believing this, they often leave the financial matters completely and solely in their
husband’s hand. This leads to women getting divorced financially insecure. So, get your
facts about finances right like income of your husband, tax-payments, loan installments,
FD, credit balance and disposition, bank accounts and monthly bills.

2. Apart From Income – It is a grave mistake to ignore marital properties, assets like
jewellery, car, and insurance policies. They add up in providing financial support when
deciding for alimony and child support. Keep track of your husband’s investments in stocks
and mutual funds. However, women in India are hardly aware of their rights and are often
taken for a ride by their husbands. Indian women should keep tab on all resources, and not
feel guilty of spying.

3. Ask for Maintenance – While you are preparing for divorce, filing and hiring a lawyer,
your funds will burn quicker than you realize. Though you may have support of your
family, it is good to ask for maintenance from the court. In India, more than depending on
the need of women getting divorced it depends on other factors like how much your
husband is willing to co-operate. Indian law however provides for Indian women to be
maintained while waiting for divorce.

4. Value Your Contribution – It so happens with women that, they often invest not only
emotionally in the making of a home but also financially, which goes down the drain once
your marriage is on the divorce track. Under the Hindu law, women are entitled to keep all
articles, moveable or immoveable, to her after marriage.

5
Right To Separate Residence of Hindu Woman -by Shaswata Dutta
 5. Document Your Communication – It is crucial to jot down the communication of any
kind, letters, phone calls, however they enrage you. They can be important to strengthen
your case against your husband and especially if it documents any kind of threat or abuse.
Indian women have deep-seated respect for their husband and exploiting family name in
court is looked down upon by in-laws and society. What Indian women need to keep in
mind is that they should worry about themselves rather than a family who won’t be theirs
anymore.

6. Being Independent – Most women in India are not working when they are married, either
they have never worked or they give up their career for the sake of husband or society or
family needs. This is the time for them to re-consider their options of working. Brush up
your talents and skills that you think can earn you your bread. Working not only gives
financial independence, though it is a major benefit, but also opens up many doors like not
worrying about where to live. If your family is supporting you for a while, don’t hesitate
to accept but do not become dependent on your father or your brother.

Often women are so blinded by emotions that they neglect the upcoming divorce, even if they
sense it, leaving them unprepared and ultimately ruined; financially and emotionally. Your life
will be turned upside-down by your divorce, so at least ensure that you are left with enough support
to deal with aftermath of divorce.6

6
http://www.legalserviceindia.com/articles/fam.htm
DIVORCE IN ANCIENT INDIA

Marriage as a Sacrament.
If we have to understand the problems and issues concerning Hindu marriages and divorce, we
have to understand the concepts and the beliefs that are attached to them. Traditionally speaking,
in Hinduism there is no concept of divorce. Especially, women cannot seek separation from their
husbands. Marriage is a sacrament, sanctified in the presence of gods. During marriage a couple
vow to stay together for ever and uphold traditional family values in accordance with Dharma. The
bride is given to the bridegroom as a gift from the gods, whom he can never abandon, without
incurring the sin of violating the marriage vows. Marriage is a sacred relationship between two
people, which is predestined because of their deep connection and joint karma in their previous
lives. It is a commitment that extends beyond this life, up to several generations. A couple marry
not because they have chosen to, but because they are destined to. Hence any notion of separation
is a sacrilege, with terrible consequences awaiting both the parties in their future lives. Whatever
difficulties the couple may have, society and the scriptures expect them to take them in their stride,
as a part of their karma, and continue their journey together. In exceptional cases, they may live
separately, but cannot throw away their marriage relationship without incurring negative karmic
consequences for themselves and their children. Hindu scriptures do not recognize a woman's right
to leave her husband under any circumstances. Her duty is to serve her husband and remain loyal
to him for the rest of her life. But men have been provided with a choice under some special
circumstances. The scriptures allow a married man to leave his wife or marry another on the
grounds of infidelity, childlessness, an incurable disease such as leprosy or insanity, or ever mere
suspicion of adultery or infidelity. Divorce is a modern practice introduced into Hindu society
through civil laws to protect the rights of both men and women that are guaranteed in the Indian
constitution.

In ancient times, women in Hindu society had limited freedom. Women were bought and sold,
abducted, forcibly married and forced into slavery or prostitution. There was nothing like the
modern concept of a divorce or a legal separation in Hindu society. Once a woman left her parent's
home, she was completely at the mercy of her husband or his parents and if he found her
incompatible or unattractive and abandoned her, there was little that she could do. She had no right
to divorce, no right to remarry and no right to leave the house and approach any one without her
husband's permission. Part of the problem was that Manu1, the famous law maker, viewed women
with suspicion and would not trust them with freedom. He believed that they needed to be kept
under the protection and watch of men all the time, so that they would not have the opportunity to
cause the confusion of castes.

In case of men the situation was different. Men had many rights and privileges, which went with
their status as upholders of Dharma, and which they exercised in the name of religion, family or
expediency. The suffering of Sita in the epic Ramayana, after she was abandoned by her husband
in the name of dharma, is a case point. Lord Rama, a paragon of virtue, duty and sense of morality,
abandoned his wife, whom he loved so dearly, on the mere allegations of possible infidelity on her
part. He had no proof, but as an upholder of Dharma, he reacted promptly and banished her into
the forests, ignoring the fact that she was pregnant and innocent.

The plight of Sita amply reflects the attitude of ancient Hindu society towards women. Men had
the right in ancient India to abandon their women on mere suspicion of infidelity or adultery. There
were no courts that would argue the cases for women or legalize their separation. There was no
concept as gender equality. According to the Hindu law books women were born to serve. Women
were born to tempt men into vice. Women were born to be kept under control. The action of Rama
is widely debated by scholars of today in the context of the moral and marriage standards of present
day Hindu society. However few centuries ago, it was hardly a debatable issue, because apart from
its moral, social and symbolic implications, Rama's action was neither unusual nor strange, but in
conformity with the Hindu law books and the practices of those times. If we rationalize his action
today, it is by ignoring the wider social context in which it happened and the fact that Rama as the
king and upholder of Dharma was duty bound and had no choice, unless he wanted to present
himself as a person with double standards.

Even the great Buddha, founder of Buddhism, who is known for his compassion and wisdom, felt
women were inferior to men and a spiritual hazard. When his disciple Ananda approached him
with a request to admit them in to the Buddhist Sangha, he said to have remarked, "Just as when
the disease called crimson falls upon a field of sugarcane, that field will not last long, even so
Ananda in that doctrine and discipline in which women receive the going forth from a house to
houseless life, the religious life will not last long." Eventually, when he relented and admitted
Buddhist nuns into his Sangha, it was by introducing a strict code of conduct. Buddha's approach
was not much different from that of the vedic scholars and his words amply reflect the condition
of women and the attitude of even enlightened men towards them.7

Woman, The Temptress and the Goddess

However it would be erroneous on our part to draw any hasty conclusions about the plight of
women in ancient India, based purely on incidents such as the above and the stand taken by the
Hindu law books. The information is inconclusive and contradictory. This was true, especially, in
case of the Hindu Dharmashastras, whose influence and authority remained mostly confined to
certain pockets of Hindu society, among people, who had access to them, knew them and for whom
dharma or religion, as laid down in the scriptures, mattered. It is is difficult to estimate how
strongly they were enforced in a society in which atheists, materialists and skeptics lived without
fear, voicing their beliefs against the caster system and excessive ritualism of vedic religion.

The attitude of ancient Hindus towards women was rather ambiguous. On the one hand, we have
the Hindu law books which proclaim women to be untrustworthy and subservient to men, having

7
http://www.hinduwebsite.com/hinduism/h_divorce.asp
no claim to liberty and independence. They declare a woman to be a possession, owned by her
father before marriage, her husband after marriage and her children after her husband's death. They
do advise men to treat women honorably and keep them happy in order to beget progeny and
continue their lineage, but the emphasis is not on conjugal love but promulgation of Dharma. They
warn the consequences that befall unchaste women, who neglect their families and their duties.

On the other hand, the scriptures equate women with Mother Goddess and call upon men to treat
them with respect and dignity. They warn that a house in which women are unhappy would never
prosper. A housewife is a goddess in her own right. She is Lakshmi of the house. Without her, her
husband is incomplete. She brings her part of the karma to the marriage and by assisting him in
his duties fulfills his destiny. She shares his joys and sorrows and his duties. She is his companion
in the observation of dharma. Her presence is important in the performance of rituals and the
samskaras, because she is a partner, a soul mate, not only for this life but for several. The duties
and responsibilities of varnasharama dharma, performance of sacrifices and samskaras were not
prescribed for women, but they were expected to assist their husbands in performing them.

Although they were not enjoined to pursue studies or take up responsibilities in public life, we
have evidence to believe that in ancient India women played an important role in Hindu polity and
society. Women were employed in the army, in the administration and in the royal court as soldiers,
body guards, courtesans, servants, cooks, doctors, dancers and spies.They participated in religious
debates and composed verses.. The Kunti, Draupadi, Hidimbi, Subhadra and Gandhari of the
Mahabharat were not helpless and passive women, but women with a mind of their own, who
married whom they wanted to marry, shared the ambition and vision of their husbands, gave them
counsel, questioned their wisdom and were heard. No one would believe that Yashoda, the foster
mother of Lord Krishna was a subservient member of her family. She was perhaps a more vocal
member of the family than her husband and exercised greater influence upon Lord Krishna when
he was a child. Thus declares Manusmriti:

The teacher (acharya) is ten times more venerable than a sub-teacher (upadhyaya), the father a
hundred times more than the teacher, but the mother a thousand times more than the father .So
while we are not sure how Hindu women were treated exactly in the past or how the marriage laws
worked for them, based on the fact that Hindu society has always been a pluralistic society that
cannot be characterized into a particular stereotype, which some elite sections however tend to
portray for its shock value, we have to assume with some caution that the social and religious laws
that governed the behavior of men and women and the beliefs and practices governing the
institutions of marriage and family life and the status of women in ancient India should have varied
from place to place, time to time, caste to caste and religion to religion.8

8
• Paras Diwan, Law of Marriage and Divorce
LEGAL BACKGROUND
Divorce is the legal dissolution of marriage. A divorce is among the most traumatic misfortunes
for any couple. The entire process of divorce that starts from coping up with emotional ups and
downs to contesting for the long awaited divorce decree for several months is definitely a tough
affair to get through. Before opting for a divorce one should be aware of the fact that a divorce
procedure in India extents for almost a year and in some special cases of disputes the procedure
may continue for years.

Since India is a land of varied religious communities having their own marriage laws, the divorce
procedure too varies, according to the community of the couple seeking divorce. All Hindus as
well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955. The
Muslim, Christian and Parsi communities, on the other hand, have their own laws governing
marriage and divorce. Spouses belonging to different communities and castes can seek divorce
under the Special Marriage Act, 1956. There is also the Foreign Marriage Act 1969, governing
divorce laws in marriages where either partner belongs to another nationality.

With the advancement of time and social awareness, several acts have been passed by the
government to make the present day divorce procedure in India more progressive with respect to
gender affairs and related sensitive issues.9

DIVORCE LAWS IN INDIA ARE BROADLY CATERGORIZED INTO:-

Divorce by Mutual Consent

Contested Divorce

Void Marriages

here is a detailed overview about each of them.

1. DIVORCE WITH MUTUAL CONSENT

Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual
consent by filing a petition before the court. Mutual consent means that both the parties agree for
peaceful separation. Mutual Consent Divorce is a simple way of coming out of the marriage and
dissolve it legally. Important requirement is the mutual consent of the husband & wife. There are
two aspects on which Husband & Wife have to reach to consensus. One is the alimony or
maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could
be any figure or no figure. Next important consideration is the Child Custody. This can also be

9
Hindu Marriage Act, 1955
worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be
shared or joint or exclusive depending upon the understanding of the spouses.

Certain common questions about divorce with mutual consent have been answered below:

When can the divorce by mutual consent be filed?

The parties intending to dissolve marriage are required to wait for at least one year from the date
of marriage.

They have to show that they have been living separately for a period of one year or more before
the presentation of the petition for divorce and that during this period of separation they have not
been able to live together as husband and wife.

Where to file the divorce petition?

In the family court of the city / district where both the partners lived together for the last time,
which was their matrimonial home.

How to file divorce petition by mutual consent? What happens in the court?

The divorce petition is in the form of affidavit, which is to be submitted to the family court. After
the filing of the petition and recording the statement of both the parties, the court generally
adjourns the matter for a period of 6 months.

After six months the parties have to present themselves again in the court for making a second
motion confirming the mutual consent filed earlier. It is only after this second motion that a decree
of the divorce is granted by the court.

Can any one party withdraw the mutual consent petition after filing in the court? What will
happen by that?

During this period of 6 months when the petition is pending in the court, any of the partner is fully
entitled to withdraw the mutual consent by filing an application before the court stating that he/she
does not wish to seek divorce by mutual consent.

In such circumstances, the court grants no divorce decree.

What can the other partner do under such circumstances?

There is no option available to the other party to such circumstances except to file a normal petition
for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950.

In such a situation divorce can be granted only on certain specified grounds like cruelty; desertion;
voluntary sexual inter-course with another person; the other spouse being of unsound mind;
conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced
the world or being missing for a period of more than 7 years.

If either of the spouses is not heard for a long time, should the divorce be applied?

If there is proof of the absence of spouse without any information to the other spouse about his
whereabouts for a continuous seven years period, a petition should be filed in this regard in the
court.

When the divorced persons can remarry?

Depending on the nature of decree, after the expiry of three months from the date of decree if no
notice of appeal is received by the person remarrying from the other person.

What are the costs involved in getting divorce by mutual consent?

If you hire an advocate, it will be somewhere from Rs25, 000 to Rs75, 000.

But if you get the documentation done by us and file on your own without a lawyer, the cost will
be very very low. You will not have any problem in filing your petition with our guidance, and
you will save a lot of money.

How much time does the whole process take from filing the mutual consent petition in the court
till the passing of the decree (judgment) by the court?

It takes from six months to one year from the date of filing of the petition. It varies from case to
case & place to place.

2. CONTESTED DIVORCE
In case of a contested divorce, there are specific grounds on which the petition can be made. It
isn’t as if a husband or wife can simply ask for a divorce without stating a reason. The reasons for
divorce are as follows, though some are not applicable to all religions.

Cruelty

Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one
spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be
injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the
spouse.

Adultery

In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage)
can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy.
If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence,
though the husband can seek prosecution of the adulterer male for adultery.

Desertion

One spouse deserting the other without reasonable cause (cruelty, for example) is reason for
divorce. However, the spouse who abandons the other should intend to desert and there should be
proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years.
Christians, however, will not be able to file a divorce petition solely for this reason.

Conversion

Divorce can be sought by a spouse if the other spouse converts to another religion. This reason
does not require any time to have passed before divorce can be filed.

Mental Disorder

If the spouse is incapable of performing the normal duties required in a marriage on account of
mental illness, divorce can be sought. If the mental illness is to such an extent that the normal
duties of married life cannot be performed.

Communicable Disease

If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a
virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party
can obtain a divorce.

Renunciation of the World

if the spouse renounces his/her married life and opts for sanyasa, the aggrieved spouse may obtain
a divorce.

Presumption of Death

If the spouse has not been heard of as being alive for a period of at least seven years, by such
individuals who would have heard about such spouse, if he or she were alive, then the spouse who
is alive can obtain a judicial decree of divorce.

A few common questions about divorce without mutual consent have been answered:

What are the various steps involved in seeking a contested divorce?

With a contested divorce, spouses will have to go through numerous steps before the divorce is
finalized, including:
 1. prepare, file and serve (deliver) the divorce petition (legal paperwork asking for the divorce
and stating the grounds for the breakdown of the marriage)
2. respond to the petition
3. interview and hire an attorney
4. engage in “divorce discovery” – the information gathering process, which involves various
legal procedures to get information from your spouse and third-party witnesses (e.g.,
written questions, subpoenas, and depositions)
5. pre-trial legal motions and hearings
6. settlement proposals and negotiations between attorneys
7. if settlement fails, prepare for trial
8. complete a court trial
9. Appeal, if you dispute the trial judge’s decision(s).

During the settlement phase, spouses are often unable to resolve issues. Although the divorce judge
may encourage spouses to work things out, when that doesn’t happen the next step is divorce court.

During trial, both spouses present witnesses, and their lawyers cross-examine the witnesses and
present closing arguments. After trial is over, the court will issue a final order memorializing all
of the judge’s decisions, and finalize the divorce.

What are the various documents required to file petition for a contested divorce?

1. Address proof of husband

2. Address proof of wife

3. Marriage certificate

4. Four passport size photographs of marriage of husband and wife

5. Evidence proving spouses are living separately since more than a year

6. Evidence relating to the failed attempts of reconciliation

7. Income tax statements for the last 2-3 years

8. Details of profession and present remuneration

9. Information relating to family background

10. Details of properties and other assets owned by the petitioner.10

10
Hindu Marriage Act, 1955
What is the cost involved in getting a contested divorce?

Lawyers tend to charge fees for appearing in court and doing any other work. Depending on how
intensely it is fought, therefore, a divorce may cost anywhere from the low ten thousands to lakhs
of rupees.

What are different constraints regarding the alimony?

The right of maintenance extends to any person economically dependent on the marriage. This will
include, therefore, either spouse, dependent children or even indigent parents.

The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends
on the husband having sufficient means. When deciding how much alimony is to be paid, the courts
will take into account the earning potential of the husband, his ability to regenerate his fortune (in
case, say, the property is given to the wife) and his liabilities. In case either spouse is unable to
pay for the divorce, these expenses would also be paid by the spouse that does have an income.

Various constraints determining the alimony are:

The age of the person entitled to receive the alimony.The earnings and current financial status of
the spouse entitled to pay the alimony.

The failing health or a medical condition of one of the spouses who is going to receive the alimony
may act in favor of him or her. They can claim a larger alimony on the basis of their failing health.

The spouse that retains custody of the child would be entitled to either pay lesser alimony or be
entitled to a greater amount while the child is a minor.

What are the provisions relating to child custody?

Courts usually agree to the decision of the parents in a mutual consent divorce, the courts are
expected to see to the best interest of the child. In a contested divorce, the courts will examine the
ability of the mother or father to be a parent to the child, for example. Money is not usually a
matter that is considered. Non-working mothers are regularly given custody of their children, but
fathers are expected to provide financial support.11

11
https://www.lawctopus.com/academike/divorce-under-hindu-law/
3. VOID MARRIAGES
Following are the grounds which shall render a marriage void or the court shall deem it to be illegal
are:

Bigamy:- None of the parties to the marriage shall have a spouse living in the time of their
marriage. If either of them has a spouse alive from an earlier marriage, their subsequent marriage
is no marriage in the eyes of law. It is void ab initio and non-existent.Persons falling within degrees
of prohibited relationships.Lineal ascendants are to be seen from both sides, i.e. from the father’s
side as well as from the mother’s side. So both the father and mother are lineal ascendants fall in
degrees of prohibited relationships.

Sapinda relations :-Sapinda relations can be illustrated as under:

Suppose A is a boy. Now if he is considered as one generation, relatives falling in four more
generations upwards from him from the side of his father shall be his Sapinda relations. Therefore,
A’s father, A’s grand-father, A’s great grand-father and the father of A’s great grand-father shall
all be A’s Sapinda relations. But on the mother’s side, this chain is to extend to only three
generations which include A. Therefore, A’s mother and A’s maternal grand-mother only shall be
A’s Sapinda relations from the mother’ side, A himself being one generation. Marriages made up
of such relationships are void.

A few common questions about void marriages have been answered below:

What are the provisions relating to maintenance of the wife?

Another significant question that now arises is whether the wife whose marriage is void under
section 11 of the Act can claim maintenance from her husband of that void marriage. The Supreme
Court has held that where a marriage is void, wife cannot claim maintenance under sec. 488
.However it is a generally accepted rule that even in such cases, the wife is entitled to maintenance
under sec. 18 of the Hindu Adoptions and Maintenance Act and also under section 24 of the Hindu
Marriage Act.

Are the children born from void marriages legitimate?

Hindu Marriage Act 1955 confers legitimacy upon the children born out of void marriages. It
provides as under:

Hence the clear effect of section 16 is that if a child is born out of a wedlock which is subsequently
declared to be null and void, that child will not be considered illegitimate but he shall be considered
legitimate despite the marriage being illegal from its inception. The section provides a cushion to
the children of void marriages and prevents them from being penalized.
CONCLUSION
Law zealously safeguards the right of maintenance of a wife. Every effort has been made to ensure
that the wife does not lose her right to maintenance for petty reasons. She already loses the best of
her life when the husband stops the flow of his natural love and affections towards the wife but if
she loses the right to maintenance also, she will have nothing but frustration for which she will
curse the society and the law.

The Legislature has laid down certain situations in clauses (a) to (f) of the sub-section 2 of Section
18 of the Act under which the wife will have the right to live apart from her husband and still claim
maintenance in order to protect the rights of this single woman.

It becomes difficult on the part of a single woman to cope up with the social and economic
pressures as a result of this divorce. She is constantly looked down upon and results into her
alienation from the society.

Though the Hindu law provides for a separate residence for the wife under such grounds but such
a provision has not been recognized by the Muslim Law. The point that one would surely realize
that both these women have to experience the same type of ridicule after a marriage is dissolved
and maybe the Muslim Women would have to face much more so, but they are not given this
claim. Here one can see that there arises for a Uniform Civil Code which would provide for such
a claim to women of all religions without making divisions, as the religions that a woman belongs
to may differ, but this break of the holy union always leads to a lot of social and psychological
sufferings.

Hindus consider marriage to be a sacred bond. Prior to the Hindu Marriage Act of 1955, there was
no provision for divorce. The concept of getting divorced was too radical for the Indian society
then. The wives were the silent victims of such a rigid system. However, time has changed;
situations have changed; social ladder has turned. Now the law provides for a way to get out of an
unpleasant marriage by seeking divorce in a court of law. The actual benefactors of such a
provision are women who no longer have to silently endure the harassment or injustice caused to
them by their husbands. But the manner in which the judiciary is dealing with the subject of
irretrievable break down of marriage, it is feared that it will completely pause the system of
marriages. Every theory has its negative and positive traits. There applicability differs from
situation to situation. Therefore it is very essential that the lawmakers of our country should deal
with the subject in a very cautious manner after considering in detail its future implications.
BIBLIOGRAPHY
BOOKS

• Hindu Marriage Act, 1955

• Kumud Desai, Textbook on Indian Law of Marriage and Divorce (2016 ed.)
• Paras Diwan, Law of Marriage and Divorce

WEBSITES

• https://indiankanoon.org/
• https://www.netlawman.co.in
• https://www.lawcommissionofindia.nic.in
• https://www. comtax.up.nic.in
• https://www.law.cornell.edu/
• https://www.newagepublishers.com
• https://www.lawhandbook.org