The objective of any Family and Divorce Lawyer in the country is to adjudge the scope of settlement and cohabitation between husband and wife. Where the couple under no circumstances wishes or attempts to work on the marriage, the courts dissolve such marriages.India being a secular country where all religions are respected equally are freely practiced. The major religions practiced include Hinduism, Islam and Christianity.
People solemnize marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws.
Family and Divorce law in India, includes laws on marriage, divorce and other issues, which are essentially governed by the personal laws of the parties depending on their religion. Laws governing the matrimonial issues are:
- Hindu: Hindu Marriage Act 1955.
- Muslim: Muslim marriage is a contract under Muslim law.
- Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869.
- Paris: Paris Marriage and Divorce Act 1936.
In inclusion, the Special Marriage Act 1954 applies to person of all religions, caste or community can select to marry under it. A matter of divorce would then be governed by the Special Marriage Act 1954.
The Indian courts under the Family and Divorce Law are competent and have valid jurisdiction to adjudicate and grant divorce only under the Indian statutes. The Indian courts are not authorized to pass orders on cases which require the applicability of foreign law. However, if a foreign national, who resides in India, marries under the Special Marriage Act, then such person would not be treated any differently than an Indian national when seeking divorce. Family and Divorce law in India lay down provisions relating to:
Restitution of Conjugal Rights
When either party to marriage wants to quit the society of other without any reasonable cause, the aggrieved party has the right file a petition for Restitution of conjugal rights.
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party (wife or husband) may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
While granting a decree of restitution of conjugal rights, it is mandatory upon the Court to be satisfied that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief under the Family and Divorce Law.
Maintenance pendent lite and expenses of proceedings being reliefs of an ancillary nature, would apply to proceedings for restitution of conjugal rights.
Nullity of Marriage
A decree of nullity of marriage can be obtained from a court when the marriage is void and voidable. The non-fulfilment of any of the following conditions would render the marriage void.
- neither party has a spouse living at the time of marriage
- the parties are not within the degrees of prohibited relationship
- the parties are not sapindas of each other unless the custom of usage governing each of them permits of a marriage between the two
A marriage which is void from the very inception does not alter or affect the status and position of the parties. Such marriage confers no matrimonial obligation on them, which normally arise from a valid marriage, except such rights as are expressly recognized under the Family and Divorce Law. Provisions relating to maintenance, expenses of proceedings and permanent alimony shall apply to such void marriages, and the Court is competent to pass any such order in a proceeding for a declaration of nullity of marriage under this section.
It is important to understand that only the wife and/or husband can present a petition against each other for a decree of nullity. The first wife cannot seek nullity of a marriage if the subsequent marriage is void due to non-fulfilment of any of the three conditions.
Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
- that the marriage has not been consummated owing to the impotence of the respondent; or
- the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner
- that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
A voidable marriage under the family and divorce law remains effective and operates as valid and binding on the parties to the marriage unless the instance of the aggrieved spouse a decree of nullity is obtained.
Judicial Separation is generally a step further towards divorce. The Hindu Marriage Act under section 10 prescribes the grounds for judicial separation. It is equivalent to grounds for divorce.Judicial separation means severance of connection temporarily among the spouses by order of the Court. It does not mean divorce. Judicial separation thus is a step midway between subsistence of marriage and complete dissolution of marriage affected by divorce.
Contested Divorce suggests party wishes for divorce approach the family Court/Civil Court for the dissolution of their marriage. Spouse seeking divorce has to take one of the grounds mentioned under the Family and Divorce Lawof contested divorce. The grounds on which divorce can be granted under the Act are:
- Voluntary sexual intercourse with any person other than his or her spouse after solemnization of the marriage.
- Cruelty after solemnization of marriage.
- Desertion by the other spouse for a continuous period of not less than two years immediately preceding the presentation of the petition.
- Conversion to another religion.
- Mental Disorder
The Supreme Court has emphasized that the degree of severity or acuteness of a mental disorder, should be proved to be such that the petitioner cannot reasonably be expected to live with the respondent. Mere existence of a mental disorder is not enough for the grant of a divorce. Divorce on the ground of Adultery, cruelty, desertion, conversion, unsoundness, virulent and incurable form of leprosy, venerable disease, renunciation and presumption of death.
In divorce proceedings, the most complex and emotionally issue is of child custody. Both parents are emotionally connected to their child’s and want to take custody of them.Mutual Divorce
Mutual Consent Divorce was brought by the India Parliament vide Amendment in the year 1976 in the Hindu Marriage Act. The objective of Divorce by Mutual Consent is for the parties to understand the vanity of long drawn litigation and thereby proceed towards mutual consent divorce. A petition for dissolution of marriage by a decree of divorce may be presented to court by the parties to a marriage together, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. The provision under theFamily and Divorce lawenables the parties to a marriage to seek dissolution by mutual consent.
Maintenance and alimony
Maintenance is a sum of money payable by the husband to his wife who is unable to maintain herself. Various laws laid down the provisions of the maintenance to the wife and the dependents of the male. Section 24 of the Hindu Marriage Act, 1955 provides for maintenance pendente lite and expenses for proceedings under the Act. It states as under: Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expensed of the proceedings, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable.
Permanent alimony and maintenance
Permanent alimony under the family and divorce law refers to payment of the allowance to one spouse by the other.The payment is availablewhether in case of judicial separation, divorce, or annulment of marriage.
The application for maintenance can be filed at the time of institution of proceedings such as restitution of conjugal rights, judicial separation, divorce or nullity of void and voidable marriages.
Domestic violence is defined as abuse in matrimonial house on wife by her husband or the relatives of the husbands in marriage or cohabitation. Domestic violence also involves violence against children, parents, or the elderly people in a family. It may be a physical abuse, verbal abuse, emotional and sexual abuse. It may include choking, beating, and acid throwing which results into disfigurement or death of the wife. Concept of dowry death is also included in domestic violence as the mostly figured out reason of domestic violence is dowry harassment.
In this area of practice which is Family and Divorce law; we provide assistance in resolving their matrimonial issue. Our matrimonial lawyers have the unbeaten energy and focus to come with the best possible strategy to ensure the best possible outcome for our clients. The firm provides reliable strategy and effective execution of the issues. Matrimonial lawyers here offer our specialized services and represent the client before the Court. We attempt to provide complete and regular update to client about the development of the divorce, annulment, child custody cases. An experienced family attorney guides you through all your rights and suggest to make a claim a per the matter at hand.
Non-Resident Indians (NRI), Indian settled abroad who are involved in matrimonial crossroads often go through situation of divorce, annulment and child custody and similar legal proceedings. Our law firms advise our foreign and domestic clients on all facets of matrimonial and family laws applicable in India. We handle Family and Divorce law matters concerning non-residents. Our firm offer comprehensive matrimonial & family law services all over India. The team has the expertise in Matrimonial Laws and Family Laws in India. Hiring or availing the services of an experienced matrimonial lawyer is the best way you get peace of mind when dealing with matrimonial cases related to child custody, alimony, and mutual divorce or contested divorce proceedings and other matrimonial issues.
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Some landmark judgements under the Family and Divorce Law in matrimonial laws
FIR Instituted against Family Members the requirements of alleging specific role for each of the members becomes necessary, for which the indispensable aspects that all should stay together
FIR instituted by the complainant wife under sections 498-A, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860, read with section 3 and section 7 of the Dowry Prohibition Act.In all ten persons-all family members were shown as accused in the First Information Report. The Gujrat High Court noted that the tendency to rope in all the family members in the FIR speaks for themselves and in such circumstances, the requirements of alleging specific role for each of the members becomes necessary, for which the indispensable aspects that all should stay together.
The Court stated that a complaint relating to matrimonial dispute where all the members are roped into irrespective of role, becomes liable to be quashed.
Respite for Hindu couples: The six Month waiting period for Divorce not mandatory
The Apex Court stated that the 180 days period as prescribed under Section- 13B(2) is not mandatory but discretionary, thereby, giving directions for lower courts to speed up divorce if both husband and wife agree to settle their differences including alimony, custody of child or any other pending issues between the couple. The Supreme Court stated, “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.” The purpose of having a cooling-off period is to safeguard a hurried decision taken by the parties and they consider all the chances of reconciliation.
The Supreme Court has held thatTriple Talaq violates the fundamental rights of Muslim women as it irrevocably ends a marriage without any hope of restoration and thus, ruling it unconstitutional.
Divorce in Christians
The Supreme court held that the divorce granted by the ecclesiastical tribunal under Christian personal law is not valid. A Christian couple will have seek divorce by way of a decree from a civil court.
False Criminal Complaint amounts Cruelty
The Bombay High Court refused to interfere with the Family Court’s order in allowing the Petition for divorce of the husband on the ground of ‘cruelty’.In view of the aforesaid, the Court noted that if the Criminal Complaint filed by the appellant wife against her husband was false and was filed only to bring back her husband and consequent to which he was arrested and was in jail for about 7 days, it would constitute a clear case of cruelty by the wife against her husband.
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