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In India Christians are governed by two different laws for Marriage & Divorce. The Christian Marriage Act, 1872 governs the marriage between two individuals of whom at least one is a Christian, and also between two Christians. The Divorce Act, 1869 earlier it was known as The Indian Divorce Act, 1869 provides for the dissolution of marriage where both are followers of Christianity as well as where any one of the parties is a Christian. The Divorce Act, 1869 is a divorce supplement to the Christian Marriage Act, 1872, it does not refer to any particular form of marriage. Another condition the Act provides is that unless the parties to the marriage are domiciled in India at the time when the petition is presented, the Courts have no jurisdiction under the Act to dissolve the marriage. The Act enforced in 1869 has gone through a few amendments, most importantly amendments in the year 2001 to make it more compatible with the changing societal needs.
‘Dissolution of marriage’ or ‘Divorce’ is a legal way of separating spouses in a way other than through the death of one of the spouses so that the parties are free to remarry immediately or after a certain period. A Wedlock can be broken either by contested or mutual consent divorce. A contested divorce requires filing a petition based on reason which compels the party to seek relief.
Section 10 of the Act provides that either wife or husband can approach the District Court (which includes the Family Court) under the jurisdiction with a petition seeking dissolution of marriage against the respondent on certain grounds. The one who is filing the petition is called a Petitioner and the other spouse is the Respondent. The grounds on which matrimonial remedy can be sought are as follows:
Since the solemnization of the marriage, the respondent has committed adultery. In matrimonial laws, adultery is defined as voluntary sexual intercourse by a married person with anyone who is not his or her spouse.
In the case of Jacob Mathew v Maya Philip @ Annamma and Anr AIR 1999 Ker 192, it was observed that ‘where there is an appeal is pending in the Eparchial Tribunal against the decree for separation granted by the Ecclesiastical Court on the ground of incompatibility of marriage and a party remarries another person, the second marriage is null and void. There is no relationship between the parties to the second marriage are not spouses of each other. Their cohabitation is, therefore, living in adultery.’
The Divorce Act is one of the personal laws; religion is in general the base of personal laws. Hence conversion to another religion is the grounds for divorce under personal laws. If a spouse has converted to another religion, the other spouse can file a divorce petition based on this ground. The spouse who got converted cannot seek matrimonial relief against the other spouse citing the conversion of himself/ herself. However, marriage is not dissolved automatically on account of conversion.
There are two conditions if one is claiming unsoundness of mind as the grounds for seeking a divorce. One, the unsoundness of the mind is incurable with medical reports as an evidence to prove it. Two, it must be at least for two years immediately before filing the petition. Both these conditions run together.
Under this ground also two conditions must co-exist. One, the disease is in a communicable form. The respondent has been suffering from this disease for at least two years immediately before the petition is presented. It is not required that the disease is communicated to the petitioner.
A person may present a petition to have the marriage dissolved on the ground that the other party to the marriage has not been heard of as being alive for seven years or more by those persons who would naturally have heard of him or her that another party has been alive.
This provision goes with Section 108 of the Indian Evidence Act, 1872 which says that when a person is not heard from for seven years, the presumption that arises is that he is dead at the time when the question is raised. When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who claims so.
The word consummation connotes completion or perfection. The consummation of a marriage takes place when there is sexual intercourse between the husband and wife. When there is refusal by the respondent deliberately to consummate the marriage and because of that reason the marriage remains unconsummated, matrimonial relief can be sought. Wilful refusal to consummate marriage is a kind of mental cruelty, it removes the essence of marriage. But in cases where non-consummation is not on purpose, it may be said that there is no mens rea on the part of the respondent. therefore, there is no reason to seek divorce against him or her.
RCR means Restitution of Conjugal Rights is a matrimonial remedy that can be used by the spouse who has been abandoned by the other spouse without any genuine reason. If the court decrees RCR in favor of the petitioner, the respondent has to return to the company of the petitioner and resume cohabitation. Suppose he or she refuses to abide by the court’s decision and remains away from the society of the decree-holder for more than two years. In that case, it implies that he or she is not interested in keeping the marital relationship alive. The other party here gains the right to obtain a divorce on this ground.
One must note that under this provision, the judgment debtor cannot file a divorce petition, unlike Hindu Marriage Act, 1955 (Sec 13(1A)(ii)) and the Special Marriage Act, 1954 (Sec 27(2)(ii)) where either of the parties to the decree may seek divorce on the ground of non-restitution of conjugal rights after the passing othe f decree. The period after which a divorce petition may be filed is also one year as against two years under the Divorce Act.
*Judgment Debtor – the party against whom the court order or decree is passed. The party is called the decree-holder.
Also Read: – Hindu Divorce Lawyers in Bangalore
Desertion is the deliberate withdrawal from cohabitation and abandonment of one spouse by the other without the other’s consent. For the act of desertion, there must be the factum of separation and animus desired. The factum of separation is the physical separation, whereas animus desired is an intention on the part of the guilty spouse to forsake the aggrieved spouse. These two elements (i.e. facto separation and animus deserendi) need not commence at the same time, one can follow the other and the two elements must subsist during the whole of the statutory duration.
Halsbury’s Laws of England, Vol 12 (3rd Ed pp 453-454) defines desertion; “In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and reasonable cause. It is a total repudiation of the obligations of marriage… Desertion is not the withdrawal from a place but from a state of things. The person who actually withdraws from cohabitation is not necessarily the deserting party.’
Thus leaving the matrimonial home for business or work purposes, safe confinement, medical treatment, studies, festivities, or ceremonies, with the spouse’s consent, due to cruelty perpetrated by the spouse or in-laws, forced to leave by the spouse or inlaws does not constitute desertion.
‘Cruelty is the conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application to the social status of the persons involved and the economic conditions and matters.’ as observed as early as 1936 in the case of Mary Browne v A N Browne AIR 1937 Oudh 52. This definition still has relevance to this day.
In the case of Mrs. Flora Bose v Suproti Bose, AIR 2011 Del 5, we further learn that ‘In fact, there cannot be any straight jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. It is not required that physical violence, as well as mental torture, should be essential to constitute cruelty. Even conduct inflicting miserable mental agony and torture under given circumstances may constitute ‘cruelty’’.
Thus the court considers cruelty of such nature that the parties cannot reasonably be expected to live together as a valid ground for granting divorce after examining the facts and circumstances of the case.
As provided in the Hindu Marriage Act, 1955 & Special Marriage Act, 1954, The Divorce Act also provides for exclusive grounds for a wife to file divorce against her husband who has been guilty of rape, sodomy, or bestiality since the solemnization of marriage. This ground cannot be based on a mere accusation, conviction by the Criminal Court can be used. Otherwise, the burden of proving such acts are done by the husband lies on the wife. If the wife is a consenting party, she is not entitled to matrimonial relief.
The offense of rape committed by the husband is regarded as a matrimonial offense. For, it impairs the sanctity and harmony of the marital relationship and mutual trust and respect.
The existence of a valid and legal marriage under the Christian Marriage Act, of 1872 which is duly solemnized by the state-appointed Marriage Registrar or through the Minister/ Priest in a Church. The certificate issued by either of them is a valid proof of marriage to seek matrimonial relief under the Divorce Act, of 1869.
Being a country of many religions and citizens falling under different laws when it comes to marriage, divorce, child custody, succession, and other matters, it may find it grueling to understand the provisions of the law. Your divorce lawyer has knowledge and understanding of the law to guide you on this.
You must choose an experienced and skillful advocate who is acclimatized to the courts in the local area of jurisdiction and is well-versed in the local language and practices.
Fixing an appointment is your next step. Note down your doubts and questions that you may have regarding intended divorce, as a preparation. Also, note down the anecdote of the events that have occurred between you and your spouse that have made you to contemplate on parting ways. You are free to express all your concerns without any inhibition. The advocate are also your counselors who will guide you in case divorce is not necessary after listening to your narrative, if she/he finds so.
If you have made up your mind that divorce is an option, documents such as Address Proof (any Government document), Marriage Certificate, Marriage Invitation Card, Marriage Photograph, Child’s Birth Certificate if any, the opposite party’s address, and any other document that may be necessary for the facts that will be mentioned in the petition required to be given to us.
A petition will be prepared by your lawyer detailing the facts as provided by you. After careful read-through of the petition by you and making corrections if any, with your signatures and the supporting documents the same will be filed in the court. The party filing the petition is the Petitioner and the opposite party is the Respondent. Once the file is accepted, the case number is generated and that initiates the legal proceedings. You will be informed of the next date and stage and also whether your presence is required for the same.
Summons also called Notices are issued to the opposite party at the address provided in the petition. Once notice is received by the opposite party, acknowledgment of the same is filed in the court by the court staff. In case the opposite party refuses to receive the notice, the court follows appropriate measures to serve the notice as per the legal procedure. The intimation of date to appear before the court will also be part of the notice.
When both parties present in the court in person along with their counsel (lawyer), the matter is referred to mediation. If the mediation fails, the case file is referred back to the court by the mediator. The court proceedings including evidence, examination in chief, cross-examination, arguments for the main petition, and any other interlocutory applications of both parties occur one after the other. Throughout these steps, your lawyer contacts you to inform you about the dates and if any further documents are required.
Mediation is a process where a neutral third person mediates the talks between the spouses who intend to divorce each other. The mediator sees if there is any chance of reconciliation while talking to the parties individually as well as together. You can ask for the presence of your lawyer if you are not able to convey your demands and express your concerns freely. If there is no chance of reconciliation, the next discussion will be on the sharing of assets & liabilities, child custody & support, alimony & maintenance, and any other issues that are of importance. Common ground is sought through a series of discussions, which may take more than one sitting, at the end of which a settlement agreement will be drawn and forwarded to the court only upon reaching a consensus. Thereafter the proceedings follow as per the mutual consent divorce.
If these discussions do not yield any compromise between the parties the mediation is said to be failed and the parties are referred back to the court where court proceedings will continue as mentioned in step 6.
What happens if one changes their mind after filing for divorce?
Both or any one of the parties can request the court for mediation if there is any chance of reconciliation or settlement of the divorce proceedings with consensus any time before the final judgment is passed. Similarly, the divorce case can be withdrawn by the parties anytime before the final judgment is given.
After the final arguments on both sides, the court gives its decision based on the facts presented, answering the prayer and counterclaims made by both parties. A date will be set on which the final decision will be announced. If the divorce is granted divorce decree will be given. If the court finds no reason to grant divorce, the case will be dismissed.
The aggrieved party to the court decision of the contested divorce can appeal to the higher court within 3 months. However, if the Divorce Decree was granted through a settlement agreement through the mediation process there is no option for appeal. Only in case of any issue related to child custody or property division that was not addressed earlier or any conflict arises further regarding maintenance or alimony, there can be a fresh suit.
When can I Remarry? This is the most commonly asked question by persons who are seeking a divorce. One can marry again immediately after obtaining the divorce decree through mutual consent divorce or settlement in mediation. However for the contested divorce decree, one has to wait for the appeal period of 3 months. If no appeal is made by the opposite party within 3 months, one can go ahead with marrying again.
Section 10A which was added after the Indian Divorce (Amendment) Act, 2001 provides for the Divorce by mutual consent. Before this amendment, divorce by mutual consent was not permitted to Christians. As the Court observed “Many a battle had to be fought socially and legally before the concept of divorce by mutual consent was accepted by the polity and approved by the Legislature.’’
In mutual consent divorce, both spouses have agreed to part ways and also to the terms and conditions related to sharing the assets & liabilities, payment of alimony & maintenance, child support, custody, visitation rights, and such other matters that are required to be sorted out before the separation. The consensus of both parties is an essential element.
a) Existence of a legal marriage as per the law.
b) Both the parties lived together as husband and wife. Couldn’t continue to live together, hence they separated.
c) Under section 10A of the Divorce Act, 1869 the lapse 2 years was mandated for Christians, however, the High Court of Karnataka has reduced it to 1 year as decided in Shiv Kumar v Union of India on 3 Feb 2014, AIR 2014 Karnataka 73, 2014 to make this provision in parity with other laws.
Separation of spouses implies either they are residing separately or residing under one roof but do not share a common household, are financially independent and responsibilities are not interdependent.
These conditions can be illustrated with an example;
Mr. X & Mrs. Y got married on 01.01.2020, lived together as husband and wife for a few days and on 10.01.2020 started to live separately. The date on divorce can be filed is 11.01.2021 or later.
a) If both parties have consented to the fact that reconciliation and cohabitation are not possible.
b) An Asix-month waiting period after filing the joint petition is provided in the law, which is also called a cooling off period to enable parties to get back to each other in cases of a hasty decision taken in the heat of the moment. However, the court has discretionary powers to waive off the cooling period in genuine cases.
Being a country of many religions and citizens falling under different laws when it comes to marriage, divorce, child custody, succession and such other matters, it may be grueling to understand the provisions of the law. Your divorce lawyer has knowledge and understanding of the law to guide you on this.
You must choose an experienced and skillful advocate who is acclimatized to the courts in the local area of jurisdiction and is well-versed in the local language and practices.
Fixing an appointment with the best divorce lawyers is just a click away. Note down your doubts and questions that you may have regarding intended divorce, as a preparation. You and your spouse can choose one advocate or 2 separate advocates to represent you both in the court. When it comes to mutual consent divorce all the terms and conditions of separation must be spoken, discussed, and agreed upon by both spouses. Guidance on arriving at a consensus can be sought from your divorce lawyer.
Documents such as Address Proof of both parties, Marriage Certificate, Marriage Invitation Card, Marriage Photograph, Child’s Birth Certificate if any, and any other document that may be necessary for the facts mentioned in the petition.
A joint petition is prepared by the advocate mentioning the details provided by you. You and your spouse will be asked to inscribe your signatures after reading through the petition and accompanying affidavit/s. The duly signed petition is then filed in the court of jurisdiction by the advocates along with the necessary documents.
Once the case is filed for mutual consent divorce, the court following the provisions of law gives a date after six months for the next motion. This period is called as waiting period or cooling off period and it is given to the parties to see if any reconciliation is possible between them. However, the court has the power to waive off this period if there are reasons to believe that the marriage is broken down irretrievably. An effective argument on your behalf by your counsel (advocate/ lawyer) may help in getting this period waived.
On the scheduled date either after 6 months or in case the waiting period is waived off the earlier date which will be informed to you by your lawyer, both the spouses must be present in the court. Before this, all the issues related to the division or transfer of property and other assets, responsibility assigned for liabilities, child custody & support, amount of maintenance and alimony and any other issue that the parties are concerned about have to be decided and settled amicably by the parties. A mediator talks to both parties to confirm that there is no chance of reconciliation. With the mediator’s report, your file moves back to the court. The Judge may ask a few questions based on the facts mentioned in the petition and in the mediation report, to which parties have to answer. Your lawyer will guide you through the entire process and be present with you.
After the final hearing on the same day or the day after, the Judge issues the divorce decree, an order that ends your marriage lawfully. Parties’ presence is required for this stage also. Later your lawyer and the team complete the necessary paperwork and inform you where the copy of the final judgment is available, which can be collected from our office.
There is no option for appeal in case of mutual consent divorce. Only in case of any issue related to child custody or property division that was not addressed earlier or any conflict arises further regarding maintenance or alimony, there can be a fresh suit. To avoid this, it is advised to take the professional services of the best divorce lawyers in Bangalore.
Do I have to get a divorce decree from the Court, when marriage is annulled in the Church Court?
Yes, it is necessary to get a divorce decree from the Court of Law even if you have got an annulment from the Church court. The law of the land i.e. Divorce Act, 1869 overrides the Canon Law, which is a personal law for Christians. The Apex Court in the case of Molly Joseph v George Sebastian, AIR 1997 SUPREME COURT 109 stated that “Canon Law (or personal law of Christians) can have theological or ecclesiastical implications to the parties. But after the Divorce Act came into force a dissolution or annulment granted under such personal law cannot have any legal impact as the statute has provided a different procedure and a different code for divorce or annulment.”
The same was reiterated while dismissing a PIL WP (CIVIL) No. 57 of 2013 in the year 2017 Clarence Pais v Union of India, the Chief Justice D Y Chandrachud stated “….unless the Divorce Act recognizes the jurisdiction, authority or power of Ecclesiastical Tribunal (sometimes known as Church Court) any order or decree passed by such Ecclesiastical Tribunal cannot be binding on the courts which have been recognized under the provisions of the Divorce Act to exercise power in respect of granting divorce and adjudicating in respect of matrimonial matters. It is well settled that when the legislature enacts a law even in respect of the personal law of a group of persons following a particular religion, then such statutory provision shall prevail and override any personal law, usage, or custom prevailing before coming into force of such Act.”
Law firm based in Bangalore simplifies the process of divorce for persons professing Christian religion in India. Thorough understanding of the legal requirements and pre-conditions to seek divorce through the Courts of Law is an essential factor. The knowledge of the jurisdiction of the courts and the procedure followed in the local courts are necessary to have a hassle free experience.
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