Divorce is not welcoming decision though sometime people has to take decision to end the marriage by divorce. My answer is for divorce procedure between Hindu Couple.
There are two type of divorce specified under Hindu Marriage Act
A) One sided divorce : Where either husband or wife approaches court for divorce. In short only one partner wishes to end the marriage on certain ground. For such divorce party has to file litigation for divorce decree (Decree means order ) under section 13 of Hindu Marriage Act under following conditions
if one of partner has performed sexual intercourse with any person other than his/her partner after marriage.
If treats his/her partner with cruelty (which also includes to treat parents of husband with cruelty)
has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition
has ceased to be a Hindu by conversion to another religion
has been incurably of unsound mind, or has 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.
has been suffering from a virulent and incurable form of leprosy
has been suffering from veneral disease in a communicable form
has renounced the world by entering any religious order; or
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
in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the 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:
that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
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.
In short, most of the one sided divorce petitions are filed on the basic of point no 01 and 02 i.e. sexual intercourse voluntarily with person other than his / her partner and treating partner with cruelty.
But Court of Law gives verdicts / decision on the basis of proved evidence, Unless you do not have strong proof, one sided divorce application filled under section 13 will take too much time. Minimum 1.5 year to Maximum 10 years.
So it is never advisable to file one sided divorce application. It will only take valuable years of your life and money.
B) Divorce with mutual consent : Where both parties i.e. husband and wife mutually agrees to end their marriage.
As basic principle, marriage can only work if both partners wants to live together. In case one of partner is not ready to live together, it should be sorted out mutually rather than filling one sided divorce application and mutual decision should be taken either to live or end the marriage.
False litigations of dowry / domestic violence may too take too much time i.e. minimum 1.5 year to maximum upto 10 years and it can only create troublesome situation for both of the parties and put restriction on chances of second marriage.
So the basic thing we should keep on mind that if marriage is not working lets apart happily / respectfully. After all, in this modern age we generally marry at the age of 26 to 29 so we have just another 30 years to live on earth. In case we are destroying those another thirty years in court battle for divorce, it will ruin our entire life so better to apart happily.
Better end marriage mutual consent by filling mutual divorce petition, this mutual divorce petition contain simple representation that we solemnized marriage on So and so that, but after marriage we found that we cannot live together, we try our best to save marriage but all the efforts go in vain. So we mutually decide to end marriage. And details about permanent alimony that one partner is going to pay to another partner.
There are main two procedure to end the marriage with mutual consent
Following procedures/ Condition of Section 13 (B) of Hindu Marriage Act
Mutual Divorce application can only be filed after one year of marriage. In short no divorce application can be filled within a one year of marriage. In short person has to wait till he/ she completes one year of his / her marriage ( As per the provision of Section 14 of this act)
One year separation period : before presenting mutual divorce application under section 13 B of Hindu Marriage Act, couple has to live one year separately.
Once you complete above condition, you may approach court and file mutual consent divorce application and court will ask couple to come after six months. Judge will again ask both the parties whether they are firm on their decision to end their marriage, in case both parties agrees court will pass order and marriage will come to end.
In other word, this entire process under Section 13 B may take time upto 2.5 year from date of marriage. i.e. 01 year marriage period + 1 year separation period + 6 month period after presenting application in court.
2. Customary Divorce : As provided in section 29 (2) of Hindu Marriage Act
Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after the commencement of this Act
Definition of custom is provided in Section 3 A of The Act
the expression "custom" and "usage" signify any rule which, having been continuously and uniformally observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
In short many cast / families has custom to end the marriage with mutual consent by sorting out issues within their families / cast without approaching court.
Thus, families / couple may simple make divorce deed with mutual consent and may mutually fix the amount of permanent alimony and write down the same on stamp paper and sign that document and declare their marriage as ended. Divorce deed must contain that their family / cast is having reasonable custom to end marriage with mutual consent and custom prevailing is same as defined under section 3 (A) of The Hindu Marriage Act and this divorce deed has provided impunity under Section 29 (2) of Hindu Marriage Act.
In short condition of Section 13 B is not applicable to customary divorce. Hence couple does not require to wait till 2.5 Year.
Disclaimer : This post is for informal help purpose only and does not intend to represent any legal stand and does not take any kind of responsibility. Please take advice of authorized legal practitioner. kaalecoatwale.com is not responsible in anyway.
SOURCE: INTERNET
