| Originally posted by : bhavana |
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i have been living away from my husband for nearly 1 year since i was not interested in the marriage. i have alleged DV but not filed any case on him. this is my second marriage. my family has been frantically trying to bring my husband to MCD, but he is not accepting, so if i file DV can i make allegations of impotency on him ? we don't have kids from our 4 year old marriage. if i make allegations of impotency or allegations that he is unfit to father a child how can i prove them or my husband will be asked to prove himself ? |
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Your case extensively discussed here.
https://www.lawyersclubindia.com/forum/details.asp?mod_id=159574&offset=9
and I agree with the advices given already.
The concept of dissolution of marriage evolved to avoid the process of accusations and counter accusations in a divorce proceeding and to avoid unnecessary expenses involved in the process. In a divorce proceeding one party to the marriage must accuse the other of being at fault under one of the statutory grounds. Divorces based on no fault grounds are referred to as dissolution of marriage.
Dissolution of marriage by mutual consent
The only type of no fault divorce explicitly recognized under Indian Laws is the divorce by mutual consent. Here the spouses petition that they have not been able to live together for a period of one year or more and were living separately immediately preceding the presentation of the petition; consequently they have mutually agreed to dissolve the marriage. Before filing the petition, spouses agree on various important issues such ascustody of child, alimony to wife, return of dowry items or “Streedhan”, litigation expenses etc. Further, the terms of agreement are to be mentioned in the petition for divorce by mutual consent.
Spouses can file for dissolution of marriage by mutual consent under any of the following provisions: Section 13-B of The Hindu Marriage Act, 1955, Section 28 of the Special Marriage Act, 1954, Section 10-A of The Indian Divorce Act1869.
Grounds for dissolution of marriage by mutual consent
In the case of Sureshta Devi[1], the Supreme Court explains the grounds for the dissolution of marriage as follows:
“`living separately’ for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately’, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition.
The second requirement that they `have not been able to live together’ seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves.
The third requirement is that they have mutually agreed that the marriage should be dissolved.”
Procedure for dissolution of marriage by mutual consent
The process of dissolution is started by filling a petition for divorce by mutual consent. The petition is supported by affidavits from both parties which signify their consent. This is the first motion petition which is presented in the court of Civil Judge senior Division. The petition contains a joint statement by both the parties that they have not been able to live together thus should be granted divorce by the court. The parties are supposed to file a second motion petition after 6 months of filing the first petition where the presence of both parties is must. This is followed by the hearing of both the parties by the judge and on the satisfaction of the court the marriage is dissolved. The parties are supposed to present the 2nd motion petition after 6 months and before 18 months of filing the 1st motion petition giving them sufficient time to reconcile their differences. If the parties do not present the 2nd motion petition within 18 months then the marriage cannot be dissolved by the court.
Further if at the time of inquiry by the court one of the parties withdraws its consent to the divorce petition then the court has no jurisdiction to dissolve the marriage[2]; as it is only in the case of continued mutual consent of the parties that a decree dissolving the marriage can be passed by the court.
Irretrievable breakdown of Marriage as ground for dissolution of marriage
Apart from dissolution of marriage by mutual consent the other way to dissolve the marriage on “no-fault” ground is the concept of irretrievable breakdown of marriage.New Zealand was the first country to accept the concept of “irretrievable breakdown of marriage” in The Divorce and Matrimonial Causes Amendment Act,1920. Since then several countries have accepted it as a ground to seek divorce. In fact, in the United Kingdom, it is the only ground on which one can seek divorce.
Irretrievable breakdown of marriage is the situation where either or both the parties to the marriage are unwilling to live with each other such that they are unable to perform their spousal duties and their differences are beyond reconciliation.
The Supreme Court has flip-flopped on setting irretrievable breakdown of marriage as a ground of divorce. In a recent case of Vishnu Dutt Sharma v. Manju Sharma[3] the Supreme Court dismissed this concept saying that in a situation where a party files a petition for divorce on grounds of irretrievable breakdown and the other party who has suffered from the faults of the petitioner is opposing the same, in that case such a concept would not do justice. But the Marriage Laws Amendment Bill (2013) as passed by Rajya Sabha seeks to add section 13C to the Hindu Marriage Act which will dissolve marriage on the ground of irretrievable breakdown. It requires that the parties must have lived separately atleast for 3 years immediately preceding the presentation of the petition. Here living separately means not living in the same house.
In this case as opposed to the divorce by mutual consent the petition for dissolution of the marriage may be presented by either party to the marriage and the court may dissolve the marriage even if the other party objects it. However, the wife may object to the petition on the grounds of financial hardship.
How is dissolution of marriage different from a divorce?
Divorce and Dissolution of marriage are used to refer to two nearly identical concepts. These are the processes by which a husband and wife end their marriage. Procedures to end a marriage differ from state to state though most states do not differentiate between the two concepts. Divorce could be granted only on the accusation of faults by one spouse on the other. Thus dissolution of marriage came to be used to refer to “no fault” divorces. But the end result of the two processes remains the same i.e. the end of marriage.
Grounds for seeking Divorce
Indian laws in general and The Hindu Marriage Act, 1955 in particular under Section 13 of the Act recognizes the following fault grounds for divorce: Adultery, Cruelty, Desertion, Conversion, Unsoundness of mind, Schizophrenia, Virulent and incurable leprosy, Venereal disease in communicable form, entering new religious order, presumption of death on not being heard of as alive for a period of seven years or more, non-compliance with a decree of judicial separation, non-compliance with a decree of restitution of conjugal rights(fulfillment of one’s obligations as a husband or a wife). The aggrieved party has to take one of the above fault grounds and prove it in the court of appropriate jurisdiction against the other spouse, the divorce is granted on successfully proving the allegation.
Dissolution of marriage
On the other hand, the basis of the claim of dissolution of marriage on “no fault” ground is that at least one of the two parties claims that the marriage is no more viable and the differences are irreconcilable. Here the parties decide to dissolve their marriage by mutual consent rather than choosing the path of accusing each other of various faults. In case a party bases its petition on any fault ground then the dissolution of marriage cannot be claimed but only divorce by prolonged litigation.
For claiming dissolution of marriage the parties to the marriage have to agree on various issues such as custody of child, alimony to wife, property issues etc. whereas in case of divorce such issues are settled by the court itself.
The end result of the two processes (divorce and dissolution of marriage) being the same, the concept of dissolution of marriage evolved with time to save time and expense of the parties if both of them want the marriage to be dissolved or if the marriage has broken down beyond reconciliation.
[1] Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25
[2] Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25
[3] 2009 (3) SCALE 425
You are already divorced once. You don’t need tuition regarding all this. Why do you even seek divorce? Simply walk out and stay separate. You will be saved from court proceedings which wont get you divorce even if you prove that he is impotent as yours is second marriage. You must be already 35 or 40. Your children bearing age also would be over. You have left with adoption, surrogacy or ivf by oocyte donation or sperm donation. I feel sorry for you. Try to make life beautiful with what you have in hand right now. Protect it. Nurture it. You really don’t know meaning and value of life. Once divorced and again running for divorce? One should know oneself first. By now you must have understood marriage is not for you. If this was case, you should have opted for live in relations and not bothered to marry. You would be saved from painful process of divorces. You simply go for artificial reproductive techniques. Those are also 420s. no guarantee if they give baccha in your hand, and no guarantee that is your own baccha. No guarantee of refund if there is no success from procedures. You are telling husband impotent. What if problem lies in you? I doubt you will get divorce again through court.
