The divorce procedure in India begins with the filing of the divorce petition and ends with the final order of the divorce. The procedure of divorce is divided into six stages, which include filing of the petition, service of summons, response, trial, interim orders and final order.
A dissolution of marriage can be done through a petition in a court of law. When a court passes a divorce decree, it brings an end to the marriage. Along with the separation of husband and wife, it involves the division of property, assets, and custody of the child.
Types of divorce under Hindu law :-
Mutual divorce: Section 13-B is the part of the Hindu Marriage Act that governs mutual divorce. The name suggests that in mutual divorce, both of the parties are still married. The husband and wife express their consent for a peaceful separation. There are issues relating to alimony and child custody that have to be decided by the husband and wife. There are two prerequisites for filing a divorce with mutual consent One is mutual consent. The second is that they need to be living separately for at least one year.
Contested Divorce: A contested divorce is a divorce that is initiated by either spouse. Section 13 of the Hindu Marriage Act, 1955 provides the grounds for filing a divorce, some of which are cruel, unsound mind, communicable disease or a partner who has not had a common occurrence for over seven years.
Irretrievable breakdown of marriage :-
Irretrievable breakdown of marriage means that the spouses are unable to live happily together. It is called irretrievable breakdown of the marriage when the relationship reaches an extent where it is impossible to repair the marriage. There is no affection between the husband and the wife, the couple are living separately, there are frequent quarrels, or one of the spouses is having an extramarital affair, which leads to the breakdown of the marriage.
There is no codified law that provides for the irretrievable breakdown of marriage as a ground for divorce at the moment. It is different from mutual consent divorce as it does not depend on the will of the parties but is looked at by the court as to whether the marriage can be saved or not based on facts and evidence.
The grounds for obtaining a contested divorce
Section 13 of the Hindu Marriage Act explains what grounds can be used to get a divorce.
- Adultery- It is a criminal offense for either of the spouses to have sexual relations with someone outside the marriage.
- Cruelty- Willful acts can cause danger to the body, limb, life or to the mental health. Causing pain, abusing, torturing mentally or physically is what it can include.
- Desertion- Desertion is when a husband leaves his wife for another woman without any intentions of coming back. You shouldn’t have to wait more than two years before leaving your partner.
- Religion Conversion- It can be considered as a ground for divorce in a Hindu marriage if either of the spouses ceases to be a Hindu.
- Mental Disorder- Unsoundness of mind, mental illness or mental disorder which makes the person abnormally aggressive.
- Spouse not heard of- Either a husband or wife who doesn’t hear from his / her spouse for more than seven years can be considered as grounds for divorce.
There are 3 other grounds for divorce which are only available to the wife :
- Husband has been guilty of rape
- The wife was married in underage (before the age of 15)
- The wife and husband have not been living together for more than one year
