INDIAN DIVORCE ACT

&

FAMILY COURT ACT 1984

MADE BY: FAISAL HASSAN

CLASS: B.A.LLB (SELF- FINANCE)
ROLL NUMBER: 13
YEAR: 3RD YEAR
SEMESTER: 5TH SEMESTER

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INDEX

Serial Number Topic Page Number

1. Introduction 3

2. Jurisdiction 4

3. Powers Of Family Court 5

4. Different Theories Of 6
Divorce
5. Divorce Under Hindu 7
Marriage Act, 1955

6. Appeal In Family Court 8

7. Procedure To Be Followed 9
By Family Court

9. Grounds Of Divorce As Per 10

The Hindu Marriage Act

10 Challenges 18

11. Conclusion 20

INTRODUCTION

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In Ancient times, the concept of divorce was not known to anyone. They considered marriage
as a sacred concept. According to Manu, the husband and wife cannot be separated from each
other, their martial tie cannot be broken. Later the concept of divorce came in the picture and
established as a custom to put the marriage to an end.

According to the Arthashastra, marriage can end if dissolved by mutual consent and should
be unapproved marriage. But Manu does not believe in the concept of the dissolution.
According to Manu the only way to end the marriage is the death of one of the spouses.

The provision related to the concept of divorce was introduced by the Hindu Marriage Act,
1955. The Hindu Marriage Act defines divorce as a dissolution of the marriage. For the
interest of the society, the marriage or the marital relationship needs to be surrounded by
every safeguard for the cause specified by law. Divorce is permitted only for a grave reason
otherwise given other alternative. 

Marriage is an institution which is considered as sacred in India. But with the changing times
marriage has become a subject of great judicial scrutiny. Before 1984 all family matters were
seen by ordinary civil court judges who used to deal with matters like recovery of money or
property. In 1984 the Government of India after the recommendation of the Law Commission
in their 59th Report the family courts were created by a Gazette notification of the Central
Government. This Act was known as ‘The Family Courts Act, 1984’.

JURISDICTION

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 1. Civil Matters

The family courts exercise the entire jurisdiction which is exercised by any District Court or
any subordinate civil court in the following matters-

•          Matrimonial causes

•          Maintenance and alimony of spouses

•          Custody and guardianship of children

•          Settlement of spousal property

2. Criminal Matters

The judge is vested with the power exercisable by the Magistrate of First Class under Chapter
IX of Code of Criminal Procedure which is Order for maintenance of wives, children and
parents.

POWERS OF FAMILY COURT

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 1. The family court has the power to make their own procedure.

2. They are not required to record the oral statement of the witness at length.

3. The appeal from family courts lies directly to the High Court.

4. The Family Court can receive any document or statement even if it is not admissible

under Indian Evidence Act 1872.

DIFFERENT THEORIES OF DIVORCE

1. Fault Theory

Under this theory, marriage can be ended when one party to the marriage is responsible or
liable for the offence under matrimonial offences done against another spouse. Only the
innocent spouse can seek this remedy. The only drawback of this theory is when both the
spouse are at fault, then no one can seek these remedy of divorce.

2. Mutual Consent

Under this theory, the marriage can be dissolved by mutual consent. If both the spouse
mutually gives their consents to end the marriage, they can take the divorce. But many
philosophers criticise this theory as this concept is immoral and leads to hasty divorce.

3. Irretrievable Breakdown

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According to this theory, the dissolution of marriage happens due to failure of the
matrimonial relationship. The divorce can be taken by the spouse as a last resort i.e. when
both of them are not able to live together again.

DIVORCE UNDER HINDU MARRIAGE ACT, 1955

In the Hindu Marriage Act, there are some provisions given regarding a valid divorce, i.e.
when the spouse can get divorce or appeal for dissolution of marriage in the court of law. For
the interest of the society, the marriage or the marital relationship needs to be surrounded by
every safeguard for the cause specified by law. Divorce is permitted only for a grave reason
otherwise given other alternative.

The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved
spouses (Section 13(1)) can approach the court of law and seek the remedy of divorce.
Section 13(2) provides the grounds on which only the wife can approach the court of law and
seek the remedy of divorce.

APPEAL IN FAMILY COURT

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 1. Appeal from judgment or order of Family Court can be made to the High Court within
30 days of passing the order or the judgement.

2. The appeal can be on both question of law and question of fact.

3. The appeal should be heard by a High Court bench of two or more judges.

4. No appeal lies against an order which is passed with the consent of the parties.

PROCEDURE TO BE FOLLOWED BY FAMILY COURT

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 1. Section 9 provides that the family court should try to resolve the matter
through conciliation and settlement.

2. If there is possibility of settlement of dispute the court should adjourn the proceedings
until such settlement is arrived at.

3. The parties of the proceeding are not required to hire a legal practitioner; however
they are entitled to appoint an ‘amicus curie’ to assist the parties in the settlement
proceedings.

4. In camera proceedings can be ordered if the parties desire. (In camera proceedings
means that the public is not allowed to see the proceedings)

5. Judgment should be concise with the statement of the case, determination of the

decision and the reason for the decision.

6. Provisions of Code of Civil Procedure, 1908 are applied in the enforcement of the
order or the judgement.

7. The Court can take assistance of medical and welfare experts.

STEPS TO FOLLOW FOR REGISTERING A SUIT IN A FAMILY COURT

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 1. If a person wants to register a suit in the family court then he needs to describe all the
details clearly on a watermarked paper and submitted along with the court fees.

2. Along with the suit papers the petitioner should attach an affidavit that all the facts
stated in the plaint is true.

3. The papers are submitted to the registrar of the Family Court who verifies all the
relevant documents.

4. These files are presented to the Principal Judge of the Family Court. After verification
of each file and hearing the petitioners, the Principal Judge decides whether the suit is
fit for registration.

5. The applicant files the summons form and gets the next date for hearing.

GROUNDS OF DIVORCE AS PER THE HINDU MARRIAGE ACT

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1. Adultery

The concept of Adultery may not be considered as an offence in many countries. But as per
the Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of the
most important ground for seeking divorce. Adultery means the consensual and voluntary
intercourse between a married person with another person, married or unmarried, of the
opposite sex. Even the intercourse between the husband and his second wife i.e. if their
marriage is considered under bigamy, the person is liable for the Adultery.  

The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws
Amendment Act, 1976. 

In Swapna Ghose v. Sadanand Ghose

In this case, the wife found her husband with other girl lying on the same bed and the
neighbour also confirmed that the husband has committed an offence. Here the wife gets the
divorce.

In  Sachindranath Chatterjee vs Sm. Nilima Chatterjee

In this case, the petitioner and the defendant were married. After marriage, the husband
leaves the wife in his home town so that she can complete her studies and go to another city
for work. He visited twice or thrice a month to meet her. Later he found that his wife commits
the adultery i.e. to involve in sexual intercourse with his own nephew, watchman etc. The
plaintiff approaches the court to demand divorce on the ground of adultery and his petition
was accepted and the marriage gets dissolved. 

Essentials of adultery :

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 1. One of the spouses involved in the intercourse with another person, married or
unmarried, of the opposite sex.

2. Intercourse should be voluntary and consensual.

3. At the time of the act, the marriage was subsisting.

4. There must be sufficient circumstantial evidence to prove the liability of another

spouse.

2. Cruelty

The concept of cruelty includes mental as well as physical cruelty. The physical cruelty
means when one spouse beats or causes any bodily injury to the other spouse. But the concept
of mental cruelty was added as the spouse can also be mentally tortured by the other spouse.
Mental Cruelty is lack of kindness which adversely affects the health of the person. Well it is
easy to determine the nature of physical cruelty but difficult to say about mental cruelty

a) What is considered as Mental Cruelty against Husband by wife

b) Humiliating the husband in front of his family and friends.

c) Undertaking the termination of pregnancy without husband consent.

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 d) Making false allegation against him.

e) Denial for Martial Physical Relationship without a valid reason.

f) Wife having affair.

g) Wife living an immoral life.

h) The constant demand for money.

i) Aggressive and uncontrollable behaviour of Wife.

j) Ill-treatment to the husband parents and family.

In Balram Prajapati v. Susheela Bai

In this case, the petitioner filed the divorce petition against his wife on the ground of mental
cruelty. He proved that his wife that behaviour with him and his parents was Aggressive and
uncontrollable and many times she filed the false complaint against her husband. The court
accepts the petition and grants the divorce on the ground of cruelty.

What considered as Mental Cruelty against wife by Husband ?

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 a) False accusation of adultery.

b) The demand for dowry.

c) Impotency of Husband.

d) Force to abort the child.

e) The problem of drunkenness of husband.

f) Husband having affairs.

g) The husband lives an immoral life.

h) Aggressive and uncontrollable behaviour of the husband.

i) Humiliating the wife in front of family and friends

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3. Desertion

Desertion means the permanent abandonment of one spouse by the other spouse without any
reasonable justification and without his consent. In General, the rejection of the obligations of
marriage by one party.  

Essentials

1. Permanent abandonment of the other spouse.

2. Rejection of the obligation of marriage.
3. Without any reasonable justification.
4. No consent of another spouse.

In Bipin Chander Jaisinghbhai Shah vs Prabhawati

In this case, the respondent leaves the house with the intention to abandon his wife. Later the
wife approaches the court, but the defendant proved that even though he left the house with
the intention to desert, but he tried to come back and he was prevented from doing so by the
petitioner. Here, the defendant cannot be held liable for desertion.  

4. Conversion

If one of the spouses converts his religion to any other religion without the consent of the
other spouse, then the other spouse can approach the court and seek the remedy of divorce.

Illustration 

A, a Hindu has a wife B and two children. One day A went to church and converted to
Christianity without the consent of B, here B can approach the court and seek for divorce on
the ground of conversion.

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In Suresh Babu vs Leela

In this case, the husband converts himself into Muslim and marries another woman. Here the
wife Leela filed a case and demanded the divorce on the ground of conversion without her
consent and cruelty.

5. Insanity

Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the
following two requirements-

1. The respondent has been incurably of unsound mind.

2. The respondent 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.

In Vinita Saxena vs Pankaj Pandit

In this case, the petitioner filed a case to get the divorce from the respondent on the ground
that the respondent was suffering from Paranoid Schizophrenia which means mental disorder.
She came to know these after her marriage. Here, the court grants the divorce on the ground
of insanity of husband.

6. Leprosy

Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this
disease is transmitted from one person to another. Thus it is considered as the valid ground
for divorce.

In Swarajya Lakshmi vs G. G. Padma Rao

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In this case, the husband filed the case for granting the divorce on the ground of leprosy. He
claimed that his wife is suffering from incurable leprosy with the expert’s reports. Here he
succeeds in getting the divorce on the ground of leprosy.

7. Venereal Disease

Under this concept, if the disease is in communicable form and it can be transmitted to the
other spouse, then this can be considered as the valid ground for divorce.

Illustration 

A and B married on 9 September 2011. Later A suffered from a venereal disease and it is
incurable. There’s also a chance that B can also get infected by that disease if she lives with
A. Here, B can approach the court for dissolution of marriage   

8. Renunciation

It means when one of the spouses decide to renunciate the world and walk on the path of the
God, then the other spouse can approach the court and demand the divorce. In this concept
the party who renunciates the world is considered as civilly dead. It is a typical Hindu
practice and considered as a valid ground for divorce.

Illustration

A and B got married and lives a happy life. One day A decides to renunciate the world. Here,
B has a right to approach the court and seek the remedy of divorce. 

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9. Presumption of Death

In this case, the person is presumed to have died, if the family or the friends of that person
does not hear any news about the person alive or dead for seven years. It is considered as the
valid ground for divorce, but the burden of proof is on the person who demands the divorce.

Illustration

A was missing from the last seven years and his wife B does not get any news about him of
being alive or dead. Here B can approach the court and ask for the divorce. 

10. Concept of Divorce with Mutual Consent 

As per Section 13B, the person can file the petition for divorce by mutual consent of both the
parties. If the parties want to dissolve their marriage as a mutual consent are required to wait
for one year from date of marriage. They have to show that they are living separately for one
or more 9 year and not able to live with one another. 

11. No petition for Divorce within one year of Marriage

As per Section 14, no Court will entertain the petition of divorce within the one year of the
marriage. But can be entertained if the matter is related to bigamy, and where the consent of
the spouse was taken through misrepresentation, fraud, undue influence etc. 

12. Remarriage of Divorced Person

As per Section 15, after the marriage gets dissolved and no further petition was filed by any
of the spouses against the order of the court and the time for appeal has expired. At that time
it is assumed that both the spouse are satisfied. Then only the divorced person can marry
again.

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CHALLENGES

1. Inadequate Number Of Conciliators

In many Courts it has been observed that they don’t have counsellors or the counsellors are
inapt. A major problem is the counsellors keep changing frequently.

2. Attitude Of Family Court Judges

The judges appointed to the family court do not have any special expertise in dealing with
family matters, nor do they have any special expertise in settling disputes through
conciliation. The appointment of women judge in Family Court is still a dream to be
achieved.

3. Lack Of Uniformity In Rules And Procedures

The procedure established in different High Courts have laid down different rules of
procedure. This causes confusion during the proceedings. There are still many High Courts
who have not yet established Family Courts.

4. Permitting Lawyers

Though the act has provided that the proceedings should be conducted without a legal
practitioner, the system did not create any alternative system of simplified rules. The litigants
are at the mercy of court clerks and peons to advise them on the rules followed.

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 5. Poor State Of Infrastructure

The Family Court suffers from lack of basic infrastructure. In maximum Family courts there
is absence of drinking water, canteen, typist, notary.This lack of basic requirements creates
hardship. The working conditions are basically unhygienic and poor.

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CONCLUSION

So far in India 153 family courts have been established. Yet many of them lack basic
infrastructure and proper rules and procedure. There are many states that still don’t have
family courts like Haryana, Arunachal Pradesh, and Mizoram.

However, the court has proved to be one of the most efficient mechanisms for solving family
disputes. Many marriages have been saved, many women were given their basic rights and
many family disputes have been resolved.

Though the record of Family courts have been pretty much mixed, formulating of certain
remedies such as uniform procedure, stricter laws and improvement in the infrastructure can
improve the functioning of the court.

The Hindu Marriage Act, 1955 provides various provision regarding divorce. The Hindu
Marriage Act defines “Divorce as a Dissolution of Marriage”. The main three theories related
to divorce are Fault Theory, Mutual Consent Concept, and irretrievable theory. In India, the
Fault theory works in the matter of the divorce. Under this theory, marriage can be ended
when one of the spouses is responsible or liable for the offence under matrimonial offences.
The innocent spouse can seek the remedy of divorce. Under the Hindu Marriage Act, the
basic grounds on which the Hindu women can seek the remedy of divorce are Adultery,
Desertion, Conversion, Leprosy, Cruelty etc. But many philosophers criticise the concept of
Divorce. The Hindu married women can also apply for the maintenance under section 125 of
the Criminal procedure code. So the spouse who is innocent can approach the court and can
seek the remedy of divorce.

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