24 MANUSHI

What are the different types ofdivorce?

There are basically two kinds ofdivorce: contested or by mutualconsent. As the name suggests, in adivorce by mutual consent bothhusband and wife agree to end theirmarriage and they jointly decide onquestions regarding child custody,maintenance, etcetera.

In a contested divorce, either thehusband or the wife petitions thecourt to grant a divorce, based onany of a number of grounds, whichthe other party will “contest”. Thecourt grants a divorce only if it issatisfied that these grounds fordivorce exist. In a divorce by mutualconsent, the court allows divorce ifit is satisfied that both parties arefreely and voluntarily giving theirconsent.

Are there any legal alternatives todivorce?

In legal terms, there are twoalternatives to a divorce: judicialseparation and separation byagreement. A decree of judicialseparation does not dissolve amarriage, as does a divorce. Forinstance, a woman cannot remarrywhile she is judicially separated; ifher husband dies during the periodof separation, she has the right,

which she does not have if she isdivorced, to inherit his propertyalong with his other heirs. A womancan apply for judicial separation atany time during her marriage; whenfiling for a divorce, however, she hasto wait for at least a year. During theperiod of judicial separation, herconjugal rights, and those of herhusband, remain suspended. Hence,even though marital rape is notrecognised as a crime in India, forciblesexual intercourse during judicialseparation is a criminal offence.

A separation agreement is like acontract in which a woman and herhusband agree to live separately andrelease each other from theobligations that come with marriage.Their marriage will continue to exist,but they need to go to court tovalidate this agreement.

How soon after a marriage can awoman apply for a divorce?

A married couple ordinarilycannot apply for a divorce until oneyear after marriage. An exception ismade in cases where staying on inthe marriage will inflict exceptionalhardship on the petitioner – forexample, in cases of domesticviolence.

When and how can a married coupleopt for a divorce by mutualconsent?

A husband and wife can apply fora divorce by mutual consent onlyafter living separately for one year

and if both parties declare that theirmarriage has “irretrievably brokendown”. The first application fordivorce is known as the “firstmotion”. In order for the divorce tobe finalised, the couple must make ajoint “second motion” between 6 to18 months after the first motion.

Can a woman refuse her husband adivorce?

Yes. In the case of a divorce bymutual consent, either party canrefuse to consent to the divorce untilthe second motion is granted. If oneparty refuses to a divorce by mutualconsent, the other may, of course,petition for a divorce on a number ofgrounds.

What are the different grounds fordivorce?

There are a variety of groundsfor divorce in the case of a Hindumarriage. The grounds available tothe wife alone are given below:� Cruelty;� Voluntary sexual intercourse

outside the marriage;� Desertion for two years or more;� Insanity;� Conversion to another religion;� Leprosy or venereal disease;� Renouncing the world by entering

a religious order;� Not being heard of as being alive

for seven years or more;� No resumption of cohabitation

between the parties for a year ormore after a decree of jud ic ia lseparation has been passed;

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� No restitution of conjugal rightsfor a year or more after a decreefor restitution has been passed.

� The husband has been foundguilty of rape, sodomy, orbestiality before the age of 15 (aground only available until thewife is 18).The grounds upon which a

registered marriage may be dissolvedare slightly different: for instance,they include the imprisonment ofeither husband or wife for a period ofseven years or more.

Who initiates t he divorce?In a divorce by mutual consent,

both parties must apply for thedivorce jointly. In a contesteddivorce, the person seeking thedivorce must initiate proceedings andmust prove that the grounds fordivorce exist (for example, that one’sspouse has committed adultery). Theother party has to refute theallegations made.

Is going to court the only way ofobtaining a divorce?

No. The Hindu Marriage Actrecognises forms of divorce based onthe customs of a particularcommunity. For instance, thedissolution of marriage by apanchayat is a recognised customarypractice.

On what grounds can the courtrefuse to grant a divorce?

In a divorce by mutual consent,the court will refuse to grant a divorceif it feels that consent has beenobtained by force or fraud. In the caseof a contested divorce, the court mustbe satisfied that certain “bars tomatrimonial relief” are not present.These include:

Taking advantage of one’s ownwrong or disability: The personwho seeks divorce (i.e. thepetitioner) must satisfy the courtthat he or she has not been thecause of the ground of divorce,whether directly or indirectly. For

instance, if a woman contracted avenereal disease from her husband,he cannot divorce her on theground that she has a venerealdisease.

Being an accessory orconniving: This is usuallyapplicable to cases of adultery. Awoman cannot get a divorce on thegrounds of her spouse’s adultery ifshe has actively or passivelyencouraged it.

Condonation: If a woman filesfor divorce on the grounds ofcruelty or adultery, she must satisfythe court that she has not“condoned” or forgiven her spousefor the matrimonial “offence”.Condonation means not only thatshe has forgiven her spouse, butalso that he has been “reinstated”,i.e. that she and her spousecontinue to live together as theydid before the matrimonial offencewas conducted.

Delay: If there has been a longdelay between the commission ofthe matrimonial offence and thepetition for divorce, the petitionerwill have to give a satisfactoryexplanation for the delay. The courtshave generally been sensitive to arange of reasons for long delays infiling for divorce, especially forwomen in the Indian context.

What can a woman do if her husbandabandons her?

She has three options. She may:� File for a divorce if her husbandhas deserted her for two years ormore;� File a claim for maintenance. Underthe Hindu Adoptions andMaintenance Act, a woman is entitledto maintenance and separateresidence even without getting adivorce.� Petition the court for restitution ofconjugal rights. If the court issatisfied that her husband desertedher “without reasonable cause”,

it can order the husband to “cohabit”with her. If he does not do so, he canbe fined by the court. A woman canalso file for a divorce within one yearof the passing of the order if herhusband has not returned to her.

Men can also file for restitutionof conjugal rights. However, even ifthe court orders in favour of theperson who is seeking restitution,there is no compulsion on the otherpartner to cohabit with his or herspouse. If the person who has beendirected by the court to resumecohabitation with his or her spouserefuses or fails to do so, the onlyremedy available to the aggrievedspouse is to file for divorce. Failureto cohabit with a partner after arestitution order by the court is, byitself, sufficient ground for divorce.However, the law does not lay downany punishment for failure to cohabit.

What are a woman’s rights regardingconfidentiality and privacy in adivorce proceeding?

For both Hindu marriages and civilmarriages, divorce proceedings maybe held in camera, which means thatonly the parties, their lawyers and thejudge are present. Nobody is allowedto publish anything in relation tothese proceedings, except ajudgement of the High Court orSupreme Court.

A woman can also ask the courtto suppress her identity duringcourt proceedings and in all courtrecords.

What is meant by a “settlement”?

It is possible that, once a divorcecase is underway, the parties reachsome sort of compromise over thecase. For instance, if a woman wentto court to demand maintenance, herhusband may decide to give hermaintenance even before the courtorders him to do so, on condition thatshe withdraw her suit. This is knownas an “out-of-court settlement”. �