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Hindu Divorce Lawyers in Bangalore

DivorcebyLaw: Hindu Divorce Lawyers in Bangalore

Marriage is a relation in which the public is deeply interested. This compels the state to have proper regulation and control over this subject. While regulating marriages, the state through its public policy attempts to foster, protect, make it a permanent and public institution and to prevent separation. The laws made by the state upholds the sanctity of marriage and prevents the sundering of the marriage ties for trivial causes. Meanwhile the legal infrastructure also provides for ways to dissolve the marriage when certain reasons crop up that make the living in a marital relationship impossible for both or either of the spouses. When a relation of marriage is established, various obligations and liabilities arise. Hence it becomes essential to institute a mechanism to segregate these responsibilities while untwining the marital ties.

Hindus in India governed by Hindu Marriage Act, 1955

Under the old Hindu law marriage was a union of male and female for performance of religious rites. Hence Hindu marriage has been considered to be a sacrament or sanskara and not a contract. Over the years the statutes have brought in few elements of contract in the Hindu marriages, retaining the core value of the sanctity of the union. The custom and usage still has its way in some aspects.

 

Divorce under Hindu Marriage Act, 1955 is not a matter of vested or guaranteed right rather it is a matter of grace. There is no natural right to divorce created by way of marriage, instead it is accorded only by reason of statute. The State through its courts has the right to determine who is entitled to use this option and upon what conditions they may do so. Divorce is neither punishment nor a favour to either party. 

Kinds of Divorce

In recent years there has been an increasing recognition of the fact that the harm that may result is much more than the gains that one makes in continuation of a marriage which is irretrievably broken down. Hence the law does not discourage divorce where legitimate objects of the matrimony have been utterly destroyed between husband and wife. A divorce under Hindu Marriage Act may be secured only in a Court having jurisdiction, upon a ground prescribed by the same statute, or by mutual consent and upon compliance with statutory modes and procedures. Depending on whether one of the spouses or both in consensus initiating the divorce proceedings leads to two kinds of divorce;

Mutual and Contested.

          Mutual Consent Divorce u/s 13B of Hindu Marriage Act, 1955

In other words “No fault divorce” where there is consensus from both the parties to get divorced amicably after settling and sorting out all the responsibilities. Both the spouses have agreed to part ways and have agreed to settle their financial liabilities, divide their assets, child custody and support is agreed upon and payment of maintenance/ alimony is planned out.

There are no grounds required to file for divorce by mutual consent. However there are pre-conditions that need to be satisfied

a)  Existence of a legal marriage under Hindu Marriage Act, 1955.

b)  Both the parties lived together as husband and wife. Couldn’t continue to live together, hence they separated.

c)   Lapse of 1 year from the date of marriage is mandatory under Section 14 of Hindu Marriage Act, 1955. 

d)  Separation of the spouses for a minimum period of 1 year is necessary to file the application. Section 13B of the Hindu Marriage Act, 1955 mandates this condition.

Separation of spouses imply either they are residing separately or residing under one roof but do not share common household, 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 few days and on 10.01.2020 started to live separately. The date on divorce can be filed is 11.01.2021 or later.

  1. If both the parties have consented to the fact that reconciliation and cohabitation is not possible.
  2. Six months of waiting period after filing the joint petition is provided in the law, which is also called as cooling off period to enable parties to get back to each other in cases of a hasty decision taken at the heat of the moment. However the court has discretionary powers to waive off the cooling period in genuine cases.

The Supreme Court in the case of Amardeep Singh v Harveen Kaur AIR 2017 SUPREME COURT 4417, 2017 (8) referring to the option of divorce by mutual consent stated that “The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.”

–       Contested Divorce under Hindu Marriage Act, 1955

When the concept of Divorce evolved in the history of mankind, it was mainly due to fault of one of the spouses. Hence the matrimonial offenses such as adultery, bigamy, desertion and so on considered to be the basis of the grounds for seeking divorce by the aggrieved party. Contested divorce is a “Fault Divorce”, where one of the spouses files a petition seeking dissolution of marriage stating the grounds for her/his prayer before the court. 

One of the spouses initiates the divorce proceeding, by filing a petition and the other spouse’s consent is not required at that time. On the other hand as the proceedings progress, there may be a consensus reached to agree upon certain terms and conditions in order to settle the issues between them.

Pre-conditions:

a)  Existence of a legal marriage under The Hindu Marriage Act, 1955.

b)  Both the parties lived together as husband and wife. Couldn’t live together, hence started living separately. Expression living separately connotes not living like husband and wife, without referring to the physical place of living.

c)  Lapse of 1 year from the date of marriage is mandated by Section 14 of Hindu Marriage Act, 1955.

Illustration:

Mr. A & Mrs. B got married on 01.01.2020, started living separately from 10.01.2021. The date on which divorce can be filed is 02.01.2021 or later.

Grounds for Contested Divorce

As stated by Dennings L J in Moor v Moor, ‘It is important that the Court should emphasize the sanctity of marriage’, keeping this in mind when a petition for divorce is filed before it, the court reasons out the need for divorce. This reasoning is based on set grounds in the statute of Hindu Marriage Act, 1955. The spouse (either husband or wife) initiating the process files a complaint  giving reasons seeking divorce in accordance with the law while the other party on receiving the summons may contest such a case either opposing stated grounds or opposing the divorce or also may seek divorce stating some other grounds.

a)     Adultery [S 13 (1)(i)]

A consensual sexual intercourse between two persons who are not married to each other but of whom one at least is married to another person is adultery. It is one of the principal grounds for matrimonial relief. One act of adultery is enough to constitute a matrimonial offense, hence ground to seek divorce. The act of voluntary sexual intercourse must have occurred after marriage; any act of sexual intercourse whether voluntary or involuntary, before marriage, is irrelevant under this section. Even though an act of adultery is decriminalized in the Criminal Law, it still remains as a ground to pray for dissolution of marriage by the spouse of the adulterer.

b)     Cruelty [S 13 (1)(ia)]

Supreme Court judgment on Savitri Pandey v Premchandra Pandey (2002) AIR 2002 SUPREME COURT 591,2002(2), SCC 73,2002 states ‘Cruelty’ consists of acts which are dangerous to life, limb or health.  Cruelty for the purpose of the Act means one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty” therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. 

Thus cruelty can be physical or mental; its effects varies from individual to individual, also depends upon physical and mental condition, social and economic status and position in life of the parties. The conduct complained of must be of serious nature and higher than the ordinary wear and tear of married life. Our experience in the field of handling matrimonial matters makes us a compassionate counselor to pay attention to the details and work towards getting a most suitable relief when you are facing cruelty by your spouse.

c)       Desertion [S 13 (1)(ib)]

Desertion is the intentional and permanent forsaking abandonment of one spouse by the other without that spouses express or implied consent and without reasonable cause. It is taken as a total repudiation of the obligations of marriage. It is not just withdrawal from a place but from a state of things and is a total repudiation of the obligations of marriage. The deserted spouse is the one who initiates the divorce proceedings. To apply this criteria i) the fact of separation for at least 2 years and ii) the intention to bring cohabitation permanently to an end by the deserter is considered. The offence of desertion was said to commence when factum of separation and the animus deserendi co-existed, it being not necessary that they should commence at the same time. From the point of view of the deserted spouse i) the absence of consent for withdrawal from the company and ii) absence of conduct giving reasonable cause to the spouse leaving matrimonial home, are to be substantiated while seeking the divorce.

d)     Conversion to other religion [S 13 (1)(ii)]

Conversion means that the person has voluntarily relinquished his or her religion and adopted another religion after going through some formal ceremony. In case of the inability to prove the conduct of formal ceremony to convert, all that is necessary to establish that the person has adopted the rules of the said faith to embrace that religion. The Hindu Marriage Act 1955 covers Hindu, Budhist, Jain and Sikh religions. Hence conversion among these religious faiths cannot be regarded as a conversion to other religion. Conversion to Christianity/ Islam by a Hindu spouse, by acknowledging or formally recognizing it as an object of his faith or belief is considered as conversion in the context of matrimonial law.

e)      Incurable Unsoundness of  Mind [S 13 (1)(iii)]

To claim matrimonial relief under this ground, the two requirements are 

i) unsoundness of mind must be incurable

ii) mental disorder, whether continuous or intermittent, must be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Under matrimonial statutes ‘unsoundness of mind’ refers to a degree of mental disturbance so menacing and so disabling that the person may be considered from legal point of view to be immune from certain responsibilities and may disallow him/her certain privileges that may require a degree of competence. A strict standard of proof is required from the spouse claiming matrimonial relief on the ground of unsoundness of mind of the other spouse. A medical examination report which has diagnosed the party with the said disorder acts as a proof of the claim.

As observed in the case of Pramatha Kumar Maity v Ashima Maity AIR 1991 Cal 123,  ‘The legislature has not provided in S 13(1)(iii) that mental disorder or unsoundness of mind by itself would amount to a matrimonial fault unless such unsoundness is incurable or the extent of disorder exceeds the tolerable limit of the matrimonial partner to lead a conjugal life.’

Provision of law under S 13 (1) iii has an explanation to understand it further (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub—normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; 

f)       Venereal Diseases [S 13 (1)(v)]

In case one of the spouses is suffering from Venereal Diseases (VD) means the disease that can be transmitted through sexual intercourse which are also referred as Sexually Transmitted Infections (STI) or Sexually Transmitted Diseases (STD), in its communicable form, the other spouse can seek divorce on that ground. The petitioner need not prove any minimum period during which the other party has been suffering from such disease. 

g)      Renunciation of the world [S 13(1)(vi)]

In cases where one of the spouses choose to renounce the world following any religious order, allows the other spouse to seek matrimonial relief.

As decided in Satyanarayan v H R E Board, Madras AIR 1957 AP 824, ‘When a Hindu enters into an order of Sanyas or Vanaprastha, it is popularly considered to be a civil death. Of course mere assumption of the title ‘Sanyasi’ is not enough, proper theological admission into Sanyas order is necessary.’    

h)      Disappearance [S 13(1)(vii)]

Not heard to be alive or disappearance is a different ground than the desertion where deserted spouse may know that the other spouse is living while in the case of disappearance the aggrieved spouse does not know the whereabouts or whether the other spouse is alive or dead as he or she has not been heard of for a long time. To consider ‘Disappearance’ as a ground for divorce, ‘Long time’ is specified as 7 years in the Hindu Marriage Act, 1955.

Before the court gives any relief under this ground, it satisfies itself that sufficient enquiries have been made to obtain whereabouts of the respondent and that all such reasonable attempts ended in disappointment. For, when a decree has been made on this ground, the marital relationship cannot be restored by the return of the missing spouse. 

i)        No cohabitation post RCR or Judicial Separation order [S 13(1-A) (i) & (ii)]

Restitution of Conjugal Rights or RCR is such remedy, which can be sought by either of the spouses, who is abandoned by the other. It is a remedy available against the spouse who has left the company of the aggrieved party without any reasonable ground and refusing to cohabit. After obtaining this order, if the cohabitation could not be established by the spouses for a period 1 year or more, this can be used as a ground against the party unwilling to cohabit. Similarly if there was a decree for judicial separation and post that for 1 year or longer cohabitation is not resumed, that can be used as a ground for seeking matrimonial relief. 

j) Exclusive grounds of divorce for women [S 13 (2) (i to iv)]

When the husband is guilty of Bigamy, Rape, Sodomy or Bestiality, wife can seek matrimonial relief. It is immaterial whether the husband was at all prosecuted or not or was convicted or not. For, the wife has to establish the charge afresh in the matrimonial action. 

Another ground available exclusively for wife is that after the order of maintenance under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under section 125 of the Code of Criminal Procedure, 1973, no resumption of cohabitation for one year or longer, is also a ground to seek divorce by the wife. 

k)        Irretrievable breakdown of marriage

Irretrievable breakdown of marriage even though is not a ground mentioned under Hindu Marriage Act, 1955 for divorce; through judicial decisions this ground has become a valid reason for the spouses to seek remedy. This ground has been considered either as no fault ground or as an extension of mental cruelty.

Procedure for divorce in India

The dissolution of lawful wedlock requires legal steps to be adhered to. These requirements call for a divorce lawyer’s professional service to make sure that one goes through the procedure as per law and ease the burden at the difficult time.

Jurisdiction of the Court (Where can one file a Divorce case?) [S 19]

The divorce petition is to be presented to the district court, which includes Family Court within the local limits of whose ordinary original civil jurisdiction,

i)  The marriage was solemnized, or

ii) The respondent at the time of the presentation of the petition, resides, or

iii) The parties to the marriage last resided together; or

iv) In case petitioner is wife, where she resides at the time of presentation of the suit; or

v) The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

This intricate step of understanding the jurisdiction where your case required to be filed can be rest on your divorce lawyer. Consult our best divorce lawyers if you are in limbo.

Mutual Consent Divorce Procedure

STEP 1: Choosing the lawyer

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 law. Your divorce lawyer has knowledge and understanding of the law to guide you on this.

It is essential that you choose an experienced and skillful advocate who is acclimatized to the courts in the local area of jurisdiction and are well versed with the local language and practices.

STEP 2: Consultation with the lawyer

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 the spouses. Guidance on arriving at consensus can be sought from your divorce lawyer.

STEP 3: Documents

Documents such as Address Proof of both the 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.

STEP 4: Joint 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. 

STEP 5: Waiting period

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 possible between them. However 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 off.

STEP 6: Hearing & Mediation

On the scheduled date either after 6 months or in case 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. Prior to this all the issues related to 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 has to be decided and settled amicably by the parties. A mediator talks to both the 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 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 through the entire process and be present with you.

STEP 7: Divorce Decree

After the final hearing on the same day or the day after, 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 paper works and informs you when the copy of the final judgment is available, which can be collected from our office.

STEP 8: After the judgment

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 which 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 professional services of best divorce lawyers in Bangalore. 

Contested Divorce Procedure

STEP 1: Choosing the lawyer

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 find it grueling to understand the provisions of law. Your divorce lawyer has knowledge and understanding of the law to guide you on this.

It is essential that you choose an experienced and skillful advocate who is acclimatized to the courts in the local area of jurisdiction and are well versed with the local language and practices.

STEP 2: Consultation with the lawyer

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. Note down the anecdote of the events that have occurred between your spouse and you that have made you to take a step towards parting ways. You are free to express all your concerns without any inhibition. We advocates also are your counselors who will guide you in case divorce is not necessary after listening to your narrative, if we find so.

STEP 3: Documents

If you have made up your mind that divorce is the option, documents such as Address Proof (any Government issued document), Marriage Certificate, Marriage Invitation Card, Marriage Photograph, Child’s Birth Certificate if any, 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.

STEP 4: Petition

A petition prepared 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 shall 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, case number 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.

STEP 5: Summons

Summons also called as Notice is 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 date to appear before the court also be part of the notice.

STEP 6: Court Proceedings

When both the parties present in the court in person along with their counsel (lawyer), 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 the parties occur one after the other. Throughout these steps your lawyer contacts you to inform about the dates and if any further documents are required.

STEP 7: Mediation

Mediation is a process where a third person who is neutral mediates the talks between the spouses who are intending to divorce each other. 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 sharing of assets & liabilities, child custody & support, alimony & maintenance and any other issues that are of importance. A common ground is sought through series of discussions, which may take more than one sitting, end of which settlement agreement will be drawn and forwarded to the court only upon reaching 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 the 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.

STEP 8: Decree & Judgment

After the final arguments on both the sides, the court gives its decision based on the facts presented, answering the prayer and counter claims made by both the parties. A date will be set on which the final decision will be announced. If the divorce is granted divorce decree will be given.

STEP 9: Appeal

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 settlement agreement through mediation process there is no option for appeal. Only in case of any issue related to child custody or property division which 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 professional services of best divorce lawyers in Bangalore. 

WHEN CAN I REMARRY? Is the most commonly asked question by the persons who are seeking divorce. One can marry again immediately after obtaining the divorce decree through mutual consent divorce or through settlement in the 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.

Before obtaining the divorce decree one’s status shall remain as ‘married’ even if the divorce proceedings are underway. Hence one cannot marry during this period.

Why DivorcebyLaw?

Expertise in the  Matrimonial Law

At DivorcebyLaw, we approach the legal divorce process under the applicable laws  with a profound sense of responsibility. Due to our reputation of providing the best legal assistance and positive results, we have earned a pride of place as being the best divorce lawyers in Bangalore.  Strong Legal Team for Mutual & Contested Divorces

The team of DivorcebyLaw specializes in helping couples navigate the process of mutual consent divorce in smoothly. We ensure that all legal formalities are fulfilled. Our goal is to provide adept legal assistance and offer a guiding hand during what can be a challenging period. With Divorcebylaw by your side, you get the expertise of the best divorce lawyers in Bangalore with fees that match your budget without burning a hole in your pocket. Our seasoned mutual divorce lawyers appreciate the intricacies entailed within this juridical avenue and stand prepared to navigate its complexities on your behalf. 

We blend legal proficiency and genuine concern, to bring the best possible solution, ensuring that your rights are upheld, and your journey through the legal process is frictionless. Get a diverse set of legal services and meet your divorce challenges head-on with DivorcebyLaw!