Almost every nation and religion’s legal system has enacted significant regulations controlling the sphere of marriage. Meanwhile, every legislation governing marriage includes certain norms and reasons for divorce, since it provides a safety net for spouses in non-functional marriages. Surely you are in a bad marriage and want to get rid of it. This article might help you know how to get a divorce in Dehradun.
What Are The Different Ways Of Getting Divorce In Dehradun?
Though divorce is viewed as a societal evil in many areas and communities throughout the world, the law allows spouses to divorce in almost the same way and for the same reasons. Earlier, divorce was quite a big stigma, and most of the time, one or the other parties used to resist. But as time progresses, you can see spouses parting their ways amicably.
In India, some grounds exist on which any married individual can initiate a divorce on his or her own, even without the approval of the other spouse. This kind of divorce is called a contested divorce.
Contested divorce refers to a type of divorce in which one party to the marriage uses legal means to divorce even while the other spouse is opposed to the divorce. It also covers cases in which both couples agree to divorce but disagree on any subject related to the divorce, such as child custody, alimony, property distribution, and so on. A contested divorce is purely based on the reasons available to the parties of a marriage, and they must prove at least one of these grounds in court. These grounds are basically the conditions that must be completed in their whole.
The grounds for a contested divorce are mostly the same in all marriage and divorce laws of various religions and individuals, such as the Hindu Marriage Act of 1955, the Dissolution of Muslim Marriage Act of 1939, the Indian Divorce Act of 1869, the Parsi Marriage and Divorce Act of 1936, and the Special Marriage Act of 1954.
Grounds of Contested Divorce
A spouse can obtain a divorce in Dehradun on the following grounds:
i. Adultery:
If one of the spouses engages in consensual sexual intercourse with another married or unmarried individual, this acts as a ground for divorce. This is the faithful spouse’s right, and he or she may file for divorce only at his or her choice. This is a recognised reason for divorce in all of the laws that regulate marriage and divorce in many religions. When one spouse files for divorce, the claimed adultery did not have to be in effect. The basic concept for contesting divorce on this issue is that the spouse alleging the affair must establish the affair.
In the case of Rajeev. Baburao, the Madras High Court concluded that the burden of proof will be on the person accusing the adultery, after assessing the claims of adultery made against the wife and evidence given by the husband. Furthermore, it was decided that the level of proof given did not have to be perfect certainty, but rather a high level of likelihood. Because the claims were severe, simple blathers or conjectures were not accepted, and divorce was denied.
In another important case, Imrata Devi v. Deep Chand & Anr, the husband was not in contact to his wife for 325 days, yet she still delivered twins. In this case, the husband fought divorce on the basis of adultery, proving that they had not consummated even before 325 days and that the delivery of children was not delayed. The Rajasthan High Court granted the divorce after accepting the averments and proof.
ii. Cruelty:
Cruelty is recognised as a divorce reason in all of the aforementioned statutes. Cruelty was not included as a reason for divorce in the framework of the Hindu Marriage Act of 1955, but this changed once the Act was amended in 1976. However, no legal system has precisely defined the term “cruelty,” and it is understood differently depending on the situation, such as physical or mental, subjective or relative, deliberate or unintentional, direct or indirect.
In the case of Russell v. Russell, ([1897] AC 395), Justice Lopes attempted to provide an abstract definition of ‘cruelty’ as action that has the potential to endanger one’s life, limb, mental or bodily health, as well as the fear of such risk.
In the Indian context, the Supreme Court contextualised ‘cruelty’ in the case of Narayan Dastane v. Sucheta Dastane in 1975, stating that courts must essentially consider whether the petitioner spouse was treated in such a cruel manner by the alleged spouse that their co-habitation will be harmful or injurious to the petitioner spouse’s life.
In A: husband v. B: Wife, it had been held that law cannot recognise different varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty or secular cruelty to justify a decree for divorce and matrimonial cruelty must have a uniform definition or conceptualisation to justify the founding of a decree for divorce. Further, under S.10(1)(x) of the Divorce Act, the cruelty must be such as to cause reasonable apprehension in the mind of the petitioner, spouse that it would be harmful or injurious for the petitioner to live with the respondent.
iii. Desertion:
Desertion is another common reason for divorce that is accepted by all divorce laws in the country. It primarily refers to the desertion or forsaking of one spouse for no apparent reason or against the will of the other spouse. Desertion consists of two components:
a. factum detachment;
b. Animus deserendi.
Furthermore, Section 13(1)(ib) of the Hindu Marriage Act, 1955 states that such desertion must occur without any legitimate cause or with the permission of the spouse applying for divorce, and must last for a continuous period of two years.
In dealing with these elements, the court held in the case of A.V. Subba Rao v. A. Surya Kumari, where the wife and husband agreed to live separately with remittance of Rs. 150 as maintenance. Thereby, one of the spouses cannot file for divorce on the grounds of desertion because there is consent involved in the separation.
Furthermore, there may be actual desertion, in which one spouse physically abandons the other without providing any information about them, as well as constructive desertion, in which one spouse refuses to fulfil marital commitments although living under the same roof.
When dealing with the concept of constructive desertion, the Calcutta High Court liberally interpreted in the case of Jyotish Chandra v. Meera that if the petitioner can prove that there is nothing left in the relationship with the other spouse except living in the same house or being physically present, the divorce can be granted. The explanation of the aforementioned rule in Hindu law contains the phrase “wilful neglect” which is meant to widen the scope of this foundation.
In the case of Lachman Uttamchand Kriplani v. Meena, the phrase “wilful neglect” was defined as a spouse’s conscious unacceptable behaviour in performing marital responsibilities or abstaining from such obligations.
iv. Conversion:
Conversion of one spouse to a different faith is a valid reason for divorce. Although it is not recognised as a reason under the Dissolution of Muslim Marriage Act of 1939 and the Special Marriage Act of 1954, it is accepted in other divorce laws. Section 13(1)(ii) of the Hindu Marriage Act of 1955 covers conversion as a divorce reason in Hindus. When construing this issue, care must be taken to ensure that approval for such conversion does not constitute a defence in obtaining a divorce.
In the case of Suresh Babu v. V.P. Leela, the court stated that permission of one spouse for the conversion of another spouse does not preclude the consenting spouse from filing for divorce on the grounds of conversion. Furthermore, if the convert is the one who converted to another faith, the reason for conversion cannot be used as a divorce mechanism.
In the case of Md. Zulfiqar Ali v. Anuradha Reddy, the husband filed a divorce petition claiming that he had converted to Islam from Hinduism and so no longer qualified as the husband of his Hindu wife. The Court denied the petition, ruling that the spouse could not apply for divorce on the grounds of conversion because this right does not exist for the converted individual.
v. Incurable Mental Disorder(s):
All the marriage laws in India make mental disorders a ground for divorce. However, the illness or unsoundness must be severe and incurable in nature. Initially, court decisions based on this reason were relied on the discretion of judges case by case, but later on, rulings of the English Courts lay forth proper standards for examining the effect of this ground.
In the case of Bani Devi v. A.K. Benerjee, the term “mental disease” was defined in the Indian context as a person’s inability to manage himself or his condition of affairs, any marital or other duties.
Furthermore, in order to use this ground, the spouse must essentially demonstrate that it is not feasible to live with such a mentally impaired spouse.
In the case of Joginder Kaur v. Surjit Singh, the court decided that Schizophrenia must be manifested in such a way that the petitioner cannot reasonably live together with such a spouse in order for the divorce to be granted. Because the ill spouse, in this case, was recuperating slowly and was not suffering from a chronic mental disease, the court did not award the husband a divorce.
vi. Communicable Venereal Disease(s):
Venereal infections are those that may be transmitted by sexual contact between two persons, one of whom is already infected with the disease. Even this basis is recognized as a divorce ground in all five of the aforementioned Acts. Section 13(1)(V) of the Hindu Marriage Act, 1955, deals with this reason, and previous to 1976, it stipulated a three-year term for such sickness to exist immediately before submitting the petition. However, the lawmakers believed that imposing the time limit would merely infringe the rights of the other spouse, perhaps exposing them to the contagious sickness.
As a result, the 1976 amendment introduced a fresh approach to this basis of divorce. This foundation is a common reason for seeking a divorce. However, because the goal of this ground is to keep the other spouse from becoming infected with such an illness, it also works as a deterrent even before the marriage. The right of an infected individual to marry can be revoked.
In the case of Mr. X v. Hospital Z, the court affirmed that such suspension can be extended until the venereal illness is treated, and that the court cannot impose the right to marry while such a person is infected with such disease.
vii. Grounds available to wife:
a. The Special Marriage Act of 1954 specifies just two grounds for divorce for the woman. Specifically, rape, sodomy, or bestiality, as well as the failure to resume cohabitation following a maintenance order.
b. Section 13(1)(b) of the Hindu Marriage Act, 1955, provide for certain additional grounds over which the wife can claim a divorce. these grounds are:
• If the husband marries another woman while his original wife is still alive, the wife might use this as a legal cause for divorce. The sole need in such a scenario is that the first wife be alive at the time of the divorce petition. Direct proof is not required to demonstrate that the first wife was alive at the time of marriage.
• If the husband is guilty of rape, sodomy, or bestiality and the wife is the victim, she can utilize this as a legal cause for divorce. It is sufficient to establish by evidence that there was penetration for sexual intercourse in order to prove. Other types of sex that become criminal offences include sodomy and bestiality.
• If the marriage was solemnised before the female reached the age of fifteen. This ground does not examine whether or not the marriage has been consummated. However, the woman must use this reason for repudiation before reaching the age of eighteen years.
Difference Between Mutual Divorce And Contested Divorce:
Divorce, as a means of escaping a dysfunctional marriage relationship, may be both pleasing and disagreeable in character. A disputed divorce is a non-agreeable divorce in which the parties to a marriage struggle to substantiate their divorce claims. It can either support or oppose divorce in general, or it can support or oppose the problems associated with divorce, such as child custody, property split, maintenance, and so on.
A ‘pleasant’ divorce, on the other hand, is also known as a mutual divorce, in which both the husband and wife determine that their marital partnership is no longer viable and opt to end their relationship. It is also known as an uncontested divorce since both spouses agree on all problems and formalities involved in a divorce.
In a mutual divorce, both the husband and wife file a joint divorce petition, whereas in a contentious divorce, one of the parties files a one-sided divorce petition and the other party files a reply and/or a counter-petition. The parties can initiate a divorce petition in the manner of a contentious divorce, but owing to specific criteria, they can also file for a mutual divorce by meeting the mutual divorce requirements. The regulations surrounding mutual divorce set out below will clearly distinguish between a contentious divorce and a mutual divorce.
Section 13B of the Hindu Marriage Act, 1955, which was included by the 1976 modification, governs mutual divorce. According to this rule, both parties must file a petition in court after proving that they have lived apart for a minimum of one year prior to filing the petition. Later, after six months but before eighteen months of submitting the petition, they must file a motion for divorce so that the court can conduct the necessary inquiries and approve the divorce. If a legitimate petition is made by the parties in which the spouses attempted but failed to live together, the court will be obligated to give divorce rather than at its discretion.
Certain requirements must be met in order to get a divorce with mutual consent. The first need is that both parties submit the petition. The component of ‘consent’ is crucial in these petitions. As they file separate petitions, it will be abundantly evident that consent is provided in their respective positions. Furthermore, the permission thus granted can be rescinded during the time frame specified for filing the motion. This is predicated on the detected view that one or both of the parties to the divorce petition may reconsider their marital connection. In the case of Sureshta Devi versus Om Prakash, it was found that the consent can be revoked by one or both of the spouses filing for divorce since it is not irreversible. The second need for obtaining a divorce is that they reside apart for one year or more immediately prior to filing a petition.
Separate does not necessarily imply that they reside in different areas, but emphasis must be placed on the notion of not living together in their respective roles, i.e. husband and wife, even if they live under the same roof. This notion was upheld in a number of cases, including Kiritbhai v. Prafulaben, in which the lower court denied the divorce petition because they were living in the same place, but the High Court overturned the lower court’s decision and granted a divorce because they had agreed to give up their respective marital roles.
The other requirement is to demonstrate that they are unable to cohabit despite both sides’ best efforts. Regarding the interpretation of living apart and being unable to live together, the Bombay High Court stated in the case of Leela Joshi v. Mahadeo that they must be read together and that courts must consider whether cohabitation has ended or not.
In terms of mutual divorce among Muslims, this mechanism is divided into two types: Khula and Mubarat. Khula is a type of divorce in which the wife grants her husband consideration or relieves him of paying Mahr. Mubarat, on the other hand, is a divorce in which both parties are opposed to the continuation of their married connection, and one spouse offers to revoke marriage, and the other accepts. An iddat time is established, after which the divorce shall take effect. In both cases, the woman is required to renounce the dower money or specified property in order to be released from the married relationship.
What Can You Do If A Divorce Case Is Filed Against You In Dehradun?
In a situation whereby a divorce case is filed against you by your spouse in Dehradun, you have two options:
i. Contest the divorce; or
ii. File a counter claim petition.
Contesting a divorce case would imply that you do not want a divorce and deny the allegations levelled against you or the grounds of the divorce taken up by your spouse and the court will examine the evidence and will grant the divorce or not grant the divorce to your spouse.
However, if you also want a divorce but on the grounds mentioned under the law, you can file a counterclaim petition in the same divorce proceeding and ask for divorce to be granted in your favour. This would imply that your spouse is guilty of a marital offence and not you.
Under the law, three modes of setting up counter-claim in a civil suit have been provided.
a. Firstly, the counter-claim can be set up in the written statement. Such counter-claim would be a counter-claim in the light of Order 8 Rule 1 read with Rule 6-A of the Code.
b. Secondly, a counter-claim may be preferred by way of amendment in a written statement already filed.
c. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9 of the Code.
In the latter two cases, the counter-claim, though referable to Order 8 Rule 6-A of the Code, cannot be brought on record as of right but shall be governed by the discretion vesting in the court, either under Order 6 Rule 17 or Order 8 Rule 9 of the Code, as the case may be.
A substantive right has been conferred on the respondent, facing the divorce petition, to make a counter-claim for any relief under the Act on the grounds of adultery, cruelty or desertion and if he/she is able to prove those grounds, the court may give him/her any relief under the Act to which he/she would have been entitled by presenting a petition seeking such relief on that ground. The provision of Section 23-A of the Act does not prescribe any procedure or the stage at which such counter-claim can be filed. For that procedure, we have to follow the general rules for filing counter-claim, as prescribed under the Code. Section 21 of the Act clearly provides that “Subject to the other provisions contained in the Act and to such rules as the High Court may make in this behalf, all proceedings under the Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.” If any contrary provision has been provided under the Act or the Rules framed by the High Court in this behalf, then those provisions/Rules are to be followed, but in absence of any such provision or Rule, the general procedure provided under the Code is to be applied in the proceedings under the Act.
Power Under Or. 18 R. 17 CPC Cannot Be Invoked to Fill Up Omission in the Evidence Already Led by a Witness:
The Hon’ble High Court of Himachal Pardesh in Dr. Honey Johar v. Ramnik Singh Johar stated that the husband wanted to show factum with regard to threats made to him and his family members by the wife’s father, which fact was very much in his awareness at the time of filing repetition. A careful analysis of the cross-examination of the wife witnesses demonstrates that no hint, if any, was ever made to the wife regarding the existence of an audio CD or tape of the conversation relating to the Shimla encounter. It was further observed that wife in his examination-in-chief or cross-examination has admitted the factum with regard to a meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to the wife that during a meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels the Court to agree that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna.
The Court held “since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.”
Are Recordings of Private Conversation between Husband and Wife permissible as evidence under S. 13 of HMA, 1955?
The Hon’ble High Court of Punjab and Haryana in the case of Neha v. Vibhor Garg, CR No. 1616 of 2020, dealt with the above-mentioned question. The petitioner’s spouse filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955, alleging that his wife had been cruel to him. To accelerate the proceedings, the respondent-husband filed an application asking permission to submit his additional affidavit via examination-in-chief, together with a CD and transcriptions of conversations recorded on the individual mobile phones’ memory cards/chips. The Family Court allowed the application, observing that the husband was permitted to prove the CD pertaining to the conversations between him and his wife subject to the condition of correctness and those strict principles of evidence are not applicable to proceedings before the Family Court under Sections 14 and 20 of the Family Court Act.
The petitioner contended that the evidence sought to be led by the husband was completely beyond pleadings, and thus absolutely impermissible, because the said CD’s were a clear infringement and outright invasion of her privacy, and thus a violation of Article 21 of the Constitution, because the conversations had been recorded without her knowledge or consent.
The petitioner contended that the Family Court had effectively ignored Section 65 of the Evidence Act of 1882 because, if the recording was made using a mobile phone, CDs of the tape and transcripts thereof could not be admitted as evidence.
Furthermore, Section 65-B of the Act of 1882 was not followed.
Considering the facts of the case, the Court concluded that it could not be claimed that the Family Court is not bound by rigorous standards of evidence and is free to admit the CD in evidence, which is a blatant violation of the wife’s right to privacy.
As a result, the Family Court’s admission of the CD was deemed unreasonable, and the contested order was reversed. The respondent-motion husband’s to present the abovementioned CD was denied, and the instant revision petition was granted. The Family Court was ordered to take action to expedite the disposition of the petition filed under Section 13 of the Act, preferably within six months.
This article is written by Anjali Bisht. The author can be contacted via email at anjali@bnblegal.com.
