1. LAW AND PROCEDURE OF DIVORCE
IN HINDU LAW
Rohit Naagpal M.Com, LL.B
M/s Kaizen Lex Advisors, LL.P
2. HINDU MARRIAGE ACT , 1955 IS THE
ACT THAT GOVERNS ALL HINDUS AROUND THE
WORLD
Section 1 of the act make it applicable to all of India expect
state of Jammu & Kashmir and applies to all Hindu
domiciled in the territories to which the act outside India
It is, thus, clear that a condition of a domicile in India, as contemplated in
Section 1(2) of H.M.Act, is necessary ingredient to maintain a petition seeking
reliefs under the H.M.Act. In other words, a wife, who is domiciled and
residing in India when she presents a petition, seeking reliefs under H.M.Act,
her petition would be maintainable in the territories of India and in the Court
within the local limits of whose ordinary civil jurisdiction she resides.”Therefore, the Act will apply to Hindu outside the territory of India only if such
a Hindu is domiciled in the territory of India
3. Voidable
Marriage
( Sec.
12)
Divorce
(Sec. 13 )
SECTION 11, 12 & 13 HINDU MARRIAGE ACT, 1955
Null &Void
Marriage
( Sec. 11)
Marriage
solemnized
under
H.M.
Act, can only
be declared
Null
& Void
Voidable
Marriage;
or
Dissolved
Decree
Divorce
by
of
4. DIFFERENCE BETWEEN NULL & VOID AND
VOIDABLE MARRIAGE
Voidable
Null & Void
Section 11
Any marriage shall be null and void
and may, on a petition presented by
either party thereto, against the other
party be so declared by a decree of
nullity if it contravenes any one of the
conditions as envisaged in Sec.5
(i) either of the party has a spouse
living at the time of the marriage;
iv) the parties are not within the
degrees of prohibited relationship;
v) the parties are not sapindas of
each other,
unless the custom or usage
governing each of them permits of a
marriage between the two
Section 12
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:(a) that the marriage has not been
consummated owing to the impotency of
the respondent; or
(b) that the marriage is in contravention of
the condition specified in clause (ii) of
Section 5; or
(c) that the consent of the petitioner, the
consent of such guardian was obtained
by force or by fraud as to the nature of
the ceremony or as to any material fact
or
circumstance
concerning
the
respondent; or
(d) that the respondent was at the time of
the marriage pregnant by some person
other than the petitioner.
9. DIVORCE BY MUTUAL CONSENT
SEC 13-B H.M.ACT
Divorce by Mutual Consent is as the name suggests is when
both parties i.e. the husband and wife come to a mutual
understanding that the marriage be dissolved amicably:-
Only requirment for a mutual consent divorce is that both
parties
should give a statement that due to their
irreconcilable differences, they can no longer stay together
as husband and wife and should be granted a divorce and
Husband and wife have been living separately for a period of
one year or more.
10. HOW DOES IT WORK
First
Motion
• A joint petition signed by both parties is filed in local district
court;
• In the first motion statement of both parties are recorded and
then signed on paper before the Hon'ble Court.
• A mandatory period of 6 months extendable to 18 months is
given for reconciliation as a chance to reconsider a decision;
Second
Motion
• After the expiry of period for reconcilement, if both parties
still don't agree to live together. Then the parties may appear
for the second motion or the final hearing and a Divorce
decree may be granted by Hon'ble Court if deem fit.
11. WHERE THE DIVORCE PETITION BE PRESENTED
PETITION
SHALL
BE
LIMITS
WHOSE
ORDINARY
OF
PRESENTED
TO
ORIGINAL
THE
CIVIL
DISTRICT
COURT WITHIN THE LOCAL
JURISDICTION: SECTION 19 H.M ACT
12. PROCEDURE
SEC. 21 B
Every trail
under the act
has to be
completed
• Within
6
months
Appeal to be
heard
• within 3
months
13. DIVORCED PERSONS WHEN MAY MARRY AGAIN
SEC. 15 OF H.M. ACT
When a marriage has been dissolved by a decree
of divorce and either there is no right of appeal
against the decree or, if there is such a right of
appeal, the time for appealing has expired ( 90
days)without an appeal having been presented, or
an appeal has been presented but has been
dismissed, it shall be lawful for either party to the
marriage to marry again.