Regarding Grounds for Divorce?
Querist :
Anonymous
(Querist) 03 May 2010
This query is : Resolved
Dear Experts, Is it always necessary to add cruelty as ground along with Desertion of more than 2 years, as I in my case their is a desertion of more then six years by my wife but 3-4 advocates whom i approached insisted for grounds of cruelty when Law clearly says that Desertion alone is a ground why these Guys insists for another ground i,e.cruelty?
R.R. KRISHNAA
(Expert) 03 May 2010
May be for a reason of additional support/ground for the case your advocates might have advised you to add the ground of cruelty. If there had been instances which amount to cruelty there is no harm in taking the additional ground of cruelty along with the main ground(desertion).
Ashok Yadav
(Expert) 03 May 2010
"You should support your suit with all the materials which are available."
Thats why the advocates are of the opinion that cruelty should be taken as a ground in your divorce petition.
Guest
(Expert) 03 May 2010
NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI)ADVOCATE
MOBILE.9271971251
e.mail.adv.nbsawant@yahoo.co.in
e.mail.nandkumarbs@sify.com
REGARDING THE GROUNDS OF DIVORCE KINDLY NOTE THAT
1.YOU MAY REFER HINDU MARRIAGE ACT PROVISIONS OF SECTION 13 FOR DIVORCE AND ALL YOUR DOUBTS WILL BE CLEARED.
2.YOU NEED NOT WORRY MUCH IN CASE BOTH THE PARTIES AND IN FAVOUR OF DIVORCE THEN BOTH HAVE TO MENTION THE GROUNDS AND FACTS SINCE THE DATE OF MARRIAGE.
COURT WILL HEAR BOTH THE PARTIES AND WILL ORDER ACCOURDINGLY
YOU MAY WRITE OR CALL FOR ANY FURTHER HELP.
THANKS
Krishnamurthy Ramdas Iyer
(Expert) 03 May 2010
Divorce.= Grounda
(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the
1. Subs. by Act 68 of 1976, s. 6, for" or fraud".
2. Subs. by s. 6, ibid., for" the grounds for a decree".
husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) 1[ has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) 1[ has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.- In this clause,-
(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 require or is susceptible to medical treatment; or]
(iv) has 2[ been suffering from a virulent and incurable from of leprosy; or
(v) has 2[ been suffering from venereal disease in a communicable from; or
(vi) has renounced the world by entering any religious order; or
(vii) 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 it, had that party been alive.
1. Subs. by Act 68 of 1976, s. 7. for the former cl.
2. Certain words omitted by s. 7, ibid
1[ Explanation.- In this sub- section, the expression" desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 3[
(1A) 4[ Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 5[ one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 5[ one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 6[ bestiality; or]
(iii) 7[ that in suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 , (78 of 1956 .) or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 .) (or under the
1. Ins. by Act 68 of 1976, s. 7.
2. The word" or" at the end of cl. (vii) omitted by Act 44 of 1964, s.
3. Cls. (viii) and (ix) omitted by s. 2, ibid.
4. Ins. by s. 2, ibid.
5. Subs. by Act 68 of 1976, s. 7, for" two years".
6. Subs. by s. 7, ibid., for" bestiality".
7. " Ins. by s. 7, ibid.
corresponding section 488 of the Code of Criminal Procedure, 1898 ), (5 of 1898 .) a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
(iv) that her marriage (whether consummated or not) was Solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation.- This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 .] (68 of 1976 .)
13A. 1[ Alternate relief in divorce proceedings. In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub- section
(1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
13B. Divorce by mutual consent.
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, 1976 , (68 of 1976 .) 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 thy have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]
1. Ins. by Act 68 of 1976 s. 8.
