The term Divorce as defined under The Hindu Marriage Act,1955, means dissolution of the marriage. Marriage according to Hindu Law is considered to be a sacrament and therefore divorce is granted only for a grave reason otherwise the married couple are given other alternatives to resolve disputes between them. Section 13 of the Hindu Marriage Act, 1955 defines Divorce.
EMOTIONAL BAGGAGE BEHIND DIVORCE
Divorce can be one of the most emotionally draining process in one’s life. The legal steps in order to take a divorce is mentioned everywhere but the real question is what are the emotional traumas faced by the party/parties while the Divorce is still under process.
Several questions arise in the mind of the parties before seeking a divorce. The emotional trauma in itself is such an arduous bridge to cross and then follows the hectic procedure. This need not be mentioned that after going through all these steps, it becomes very burdensome to carry on other important life activities and one is unable to focus on his/her career, lifestyle, health etc.
Theory of Three C’s
The three C’s that leads to a peaceful divorce are:
COUNSELLING: Counselling is an alternative dispute resolution process which helps the parties seeking divorce, to address their problems and a Counsellor is appointed to solve the problems. The counsellor tries their level best to make an amicable settlement between the parties or to try and make things work between them. If they fail to do so, after applying all the hooks and crooks, the parties are then sent to the court to file for Divorce as the alternative couldn’t help.
CO-OPERATION: The parties to Divorce must co-operate with each other in order to seek Divorce peacefully and without much of the mental stress. In real life cases, Divorces usually end up becoming a competition of throwing dirt on each other, which ends up becoming toxic for both the parties. Therefore, Co-operation is one important ingredient towards a peaceful divorce. Just mutual consent between both the parties could make the whole process quite decent and short-lasting.
COMMUNICATION: Communication is the key they say, very well said. Talking the problems through can be very helpful in resolving the problems of marriage. One has to be open about their thoughts with their partners at least. More than half of the problems can be resolved by communication alone.
Though the three C’s have been mentioned to lessen the emotional trauma faced by the parties. But one should never opt for these remedies when the grounds of divorce is clear cut wrong. There is a famous saying “Offender alone is not the culprit but one who remains silent after being victimized is the culprit too”. Therefore, if a person is seeking divorce because the other person has committed a heinous crime/cruelty or something that shouldn’t be forgiven, then the remedies provided by law should be the only choice.
Section 13(1) mentions the grounds under which Divorce of the couple, married under The Hindu Marriage Act, 1955 is permitted.
GROUNDS OF DIVORCE
- That, after the solemnization of marriage, either the husband or wife has performed sexual intercourse with any person other than their own spouse.
- That any of the party has treated their spouse with cruelty.
- That either the husband or the wife has converted to some other religion.
- That the petitioner has been deserted by his/her spouse for a continuous period of not less than 2 years.
- That either of the party has been incurably of unsound mind or is suffering from any mental disorder.
- That his/her spouse has renounced the world by entering any religious order.
- That either of the party has not been heard of being alive for a period of 7 years or more by those who would have naturally heard of him/her for example: any close family member or friend.
Judicial Separation is an alternative relief to Divorce. In Hindu Law, marriage is considered to be a sacrament which, in simple terms, mean a sacred bond. An example of a sacred marriage is a Hindu male and a Hindu female taking 7 circles around the holy fire, it is said that the couple has been sacredly tied together by an intangible bond called Marriage. The Indian Judiciary, considering the old age custom of the Hindus, has adopted the rule of marriage and has contemplated it to be sacred.
Hence, Divorce in India is a time taking process. The couple therefore has to go through a 1 long year separation process. During the separation process the couple cannot live together under the same roof or get sexually involved. This separation in legal language is known as Judicial Separation which is defined under section 13A of Hindu Marriage Act,1955. It cannot be granted in ground number 2, 6 or 7 of Section 13 of The Hindu Marriage Act,1955 i.e. the grounds of Divorce.
GROUNDS FOR DISMISSAL OF DIVORCE PETITION
- Premature filing of Divorce petition. Which means that the date of solemnization of marriage hasn’t completed a year.
- The grounds of dissolution of marriage has not been fulfilled.
- No grave reason behind the filing of divorce petition.
- The husband and wife have filed the divorce petition in collusion with each other.
- The petitioner is taking advantage of his/her own wrong or disability.
- The petitioner himself/herself is an accessory to or connived to or condoned to the acts of cruelty of his/her spouse.
- The consent in divorce by mutual consent has been obtained by fraud, force or undue influence.
- There has been unnecessary delay in instituting the proceeding.
- There is other legal ground why relief shouldn’t be granted.
STEPS INVOLVED IN CONTESTED DIVORCE
Contested divorce is filed by one party as the other party doesn’t consent to it. The steps involved in contested divorce are:
- Filing of divorce petition by husband or wife.
- After that the court issues summon and expects a reply from the party other than the aggrieved party.
- As the court considers marriage to be Sacrament under the Hindu law, it may suggest reconciliation to both the parties.
- Pleadings are completed from both the sides and any other application may be moved/filed.
- After the issuance of summons the witnesses and evidences are examined and cross-examined.
- Final arguments are presented by counsels of both the parties.
- The court passes the decree of divorce if the reasoning is grave otherwise alternatives are suggested for resolving the dispute between the parties.
Click To Know all about the process of Mutual Divorce,
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