In India, a divorce cannot be granted before the completion of at least one year from the date of marriage, until and unless it is proved without any doubt that the marriage is a case of exceptional hardship to either of the parties.
A divorce can only be granted if there has been a ‘valid marriage’ i.e. between a Hindu man and a Hindu woman, after performing all the ceremonies in accordance with custom.
A few factors that generally lead a couple to a Family court are-
This is a no- fault ground to obtain a divorce, where neither of the spouses make any allegation against another, instead they just claim that the marriage is broken beyond repairs.
The word has been thrown around everywhere these days. It’s in fact become a tool to threaten. Domestic violence is a behavior involving violence or other abuse by one person against another in a “domestic” setting, such as in marriage or cohabitation. To deal with this issue in a marriage, the Domestic Violence Act, 2005 was instituted.
While domestic violence and cruelty may go hand in hand, cruelty may be physical and/or mental. Under Section 498 A of the Indian Penal Code, Cruelty by Husband Or Husband’s relative is considered to be an offence punishable with imprisonment of upto 3 years and also be liable to fine.
Extra-martial affair? A Cheating spouse? It’s called Adultery!
In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with the criminal offence of adultery. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery and file a divorce petition against the wife.
MENTAL DISORDER:If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought.DOWRY CLAIMS:Mishra ji’s IITian son received a “gift” of Rs. 5 Crores from his in-laws. Gift? No sir. Not legally at least. Legally it’s Dowry!Dowry is property or valuable security given or agreed to be given either directly or indirectly by one Party to the other over the promise of marriage; Dowry is made illegal under the Dowry Prohibition Act and is a criminal activity.DESERTION:
One spouse deserting the other without reasonable cause (cruelty, for example) is reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per the laws, desertion should have lasted at least two continuous years.
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RIGHTS OF WOMEN:
1. Right to Streedhan –
“Streedhan” as the word suggests is essentially the gift (wealth, in any form) that the wife receives at the wedding, from her family. By law, a women is the sole owner of her streedhan. The ownership rights to streedhan belong to the wife, even if it is placed in the custody of her husband or her in-laws.
2. Right to residence –
“Matrimonial home” belongs to the wife as much as it does to the husband. A wife has the right to reside in the matrimonial household where her husband resides, irrespective of whether it is an ancestral house, a joint family house, a self-acquired house or a rented house.
3. Right to a Monogamous Relationship –
A Hindu husband cannot marry another girl unless he is legally divorced. A husband can be charged of adultery if he is in a relationship with another married woman. His wife also has the right to file for divorce on the grounds of his extra-marital relationship.
4. Right to maintenance by husband –
Alimony, Maintenance, support or allowance is the undeniable right of the financially weaker spouse. The spouse is entitled to claim decent living standards & basic comforts of life from the spouse as per their living standards.
5. Right to child maintenance –
Husband and wife must provide for their minor child. If the wife is incapable of earning a living, the husband must provide financial support. If both the parents are financially incapable, then they can seek help from the grandparents to maintain the child. A minor child also has the right to seek partition in ancestral property.
RIGHTS OF MEN:
Men per say have not been given specific rights under legal provisions, as the laws meant for divorce were focussed on protecting women. However various Supreme Court judgments through judicial pronouncements have laid down various grounds on which men can take a divorce and have improved the position of a man in a divorce.
Under law, the only right given to men is ‘Restitution of Conjugal Rights’, laid down under Section 9 of the Hindu Marriage Act, 1955, where if a wife deserts a husband without any reasonable excuse, the husband can file an application in the court to make her stay with him.
Men are also entitled to claim maintenance from their ex- wives, if it is proved that he has insufficient resources to sustain himself and the wife is in a financially better position than him. However, this is not an absolute right.
Here we have compiled a list of some common allegations levelled by real husband/ wife against each other:
Extra marital and illicit relations namely, infidelity
Refusal of the wife to live with in-laws
Insufficient income of the husband to sustain family
Inability to have sexual intercourse namely, impotency
Constant verbal spats amounting to cruelty
Ignorant and indifferent attitude towards family
Inability of the wife to bear children
Refusal to consummate marriage
Harassment for dowry by the husband and in-laws
Physical violence against the spouse
Verbal and physical violence against children
History of substance abuse and criminal tendencies
Marrying another person namely, bigamy
Unsoundness of mind/ mental disorder
No interest in carrying out mental obligations
Suffering from a sexually transmitted disease
Life of spouse in danger due to cruelty by other spouse
Damaging their self- image by constantly hurling insults and abuses in public
Lack of emotional support
This is not an exhaustive list since apart from the grounds for divorce given in the statute, there can be other instances which depend on circumstances surrounding each case where the court may be compelled to grant a decree for divorce.
There is a major stigma attached to divorce, as is with contacting a lawyer. When you’re involved in a divorce, calling a lawyer can just feel like another tough obstacle to confront. This is where MyAdvo.in swoops in to help you!
We understand that hiring a lawyer is not only necessary, it is also a leap of faith our Clients take. We understand that seeking professional help can actually give you some clarity about the whole situation and make the process go more quickly. We’re here to help you get it done the right way so that you can get back to doing what you enjoy in life.
All you need to do is, drop in your query and contact details in our chat, call us at 0124 4060860 or drop us an email @ [email protected]
The answer to, “Do you need a lawyer to get a divorce?” depends primarily on your situation when you begin to seek the divorce. However, considering the fact that emotions run high during a divorce proceeding, it is highly advised to consult a lawyer in order to avoid any wrong decisions, emotional avalanches, regrets that may occur later.
We recommend you engage a trusted & efficient lawyer