Amay Vinay Mishra | Advocate | High Court & Family Court Lucknow | Phone. 0522 2050077 | Mobile. +91 9935 176411 | +91 9455 555111

Family & Matrimonial Law

Divorce

Marriage is a sacred institution which ideally needs to be preserved. Mutual love, respect, trust and understanding is necessary for a healthy marriage. Divorce is an end of commitment and involves pain, insecurity and unpleasantness. In ancient days, it was a utopian society where divorce was an alien concept, however due to the changing scenario of modern society; it is observed that the divorce rates are unfortunately increasing due to a number of reasons. More and more young couples are approaching the court of law. The conflict needs to be handled in a positive way. The common source of conflict in a relationship is finance. In India, marriages are governed by personal laws based on custom and religion. Laws are also made for inter-caste marriages, under special marriage act. Earlier these matters were handled by the city civil court, however due to increase in number of cases, Family courts were established.


Divorce on mutual consent

This is the best option for divorcee where both the parties agree for divorce and mutually distribute their properties and take decision about child custody, maintenance etc. Along with all the points petition has to been filed before the District Judge of the concerned District or Principal Judge of the Family Court. For Divorce on Mutual consent the minimum time period is six months from the date of filing. For filing divorce on mutual consent the following documents are required:-

  • Copy of Marriage Certificate or Wedding Card.
  • Marriage photograph.
  • Passport size photograph of both parties (4- copy each person ).
  • Copy of Identity proof and Address proof.
  • Birth Certificate of Child (if any ).

  • Divorce on Contest

    Where the parties cannot come to any amicable decision for divorce, the intending party shall have no other alternative but to file suit for divorce on the grounds for which he is not interested in continuing with the marital tie. No specific time frame can be assigned in this case and it depends on several factors.


    Grounds for Divorce

    The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.
    Divorce on the ground of Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
    Divorce on the ground of Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act and such are included under cruelty.
    Divorce on the ground of Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
    Divorce on the ground of Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
    Divorce on the ground of Unsoundness of mind or Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.
    Divorce on the ground of Virulent and Incurable form of leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
    Divorce on the ground of Venereal disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
    Divorce on the ground of Renounce the World – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
    Divorce on the ground of Not heard for a period of seven years or more - If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in re-marriage.
    No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.


    The following are the grounds for divorce in India on which a petition can be filed only by the wife.

  • If the husband has indulged in rape, bestiality and sodomy.
  • If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife      being alive, the first wife can seek for a divorce.
  • A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen      years of age.
  • If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife      can contest for a divorce.

  • Judicial Separation

  • Judicial Separation is generally a step towards divorce. Section 10 of the Hindu Marriage Act provides grounds for judicial separation. It is      akin to grounds for divorce.
  • Grounds, process and procedure for Judicial Separation is same as in case of contested divorce
  • On successfully proving case for judicial separation by party initiating the process, Court passes decree of judicial separation. It implies that      party may live separately.
  • Standard of proof in case of judicial separation is lesser in degree as compared to contested divorce.
  • Judicial Separation provides ground for divorce in the event of no cohabitation between spouses in a period of one year after the passing of      decree of judicial separation.
  • It is also permitted subject to the approval of the Court that at appropriate stage, on application by the party filing case of judicial separation      to convert to divorce. Timing of such application is a vital factor.

  • Restitution of Conjugal Rights

    It is another important remedy provided by law to the spouses. In cases, where one party leave the company and society of the other spouse, then a case for restitution of conjugal rights can be filed in the Court. The Court directs the defaulting spouse to join the company of the other spouse unless there is a strong reason justifying such withdrawal. This remedy is often used strategically in fighting matrimonial cases.


    Maintainance

    This is an integral part of all matrimonial proceedings. Application for maintenance can be moved by either of the spouse who does not have the sufficient means to maintain him/her self. Maintenance can also be classified in to two parts:
    Interim Maintenance: Such maintenance is provided during the pendency of the case in the court. The underlying idea behind giving such maintenance is that one party should not loose and stand on a weaker footing at the time of contesting case. Quantum of such maintenance is dependant on variety of factor but most important aspect is the status of the parties prior to the filing of the case and the income/salary of the spouse against whom such maintenance is claimed. Court always tries to bring both the party at equal platform and footing.
    Permanent Maintenance: It is awarded at the time when whole case is finally decided. It could be periodical or monthly depends upon the facts and circumstances of the case.


    DOMESTIC VIOLENCE

    Protection of Women from Domestic Violence Act, 2005, popularly called as Domestic Violence Law or DV provides variety of rights to women victim of Domestic Violence.
    Such rights include claim of monetary relief, rights to residence, compensation for domestic violence, protection order, and child custody amongst other reliefs.
    Domestic violence Act has come into force with objective of expeditious disposal of the claim of women who are victim of domestic violence. Domestic violence complaint is filed in the Court of Magistrate who is empowered to pass expert orders. Domestic violence has come in to force with objective of providing economic justice and independence to women victim of domestic violence.
    Another important feature of Domestic violence law is that relief can be claimed not only against husband but also against in laws.
    Scope of law is further widened wherein it is clarified that not only wife but any other female living in domestic relationship can seek remedy. Thus, sister or mother can claim relief against son or father and/or brother for the relief.
    Domestic violence law for the first time recognizes existence of legal rights to female who are not married to claim monetary relief, residence, compensation etc from her partner. In other words, women living as “live in relationship” has given benefits, protection, right and claim under domestic violence law.


    Based on the Dissolution of Muslim Marriage act, 1939, a Muslim woman can seek divorce on the following grounds for divorce in India.

  • The husband’s whereabouts are unknown for a period of four years.
  • The husband has failed to provide maintenance to the wife for at least two years.
  • The husband has been under imprisonment for seven or more years.
  • The husband is unable to meet the marital obligations.
  • If the girl is married before fifteen and decides to end the relationship before she turns eighteen.
  • The husband indulges in acts of cruelty.

  • CRIMINAL CASES

    Criminal Cases : Bail, Trial, Murder, Attempt to murder, Dowry Death, Kidnapping, Theft, Extortion, Robbery, Cheating Cases, Sexual Harassment Cases, Criminal Breach of Trust, Rape Cases, Dowry Cases, Criminal Appeal, Criminal Writ Petition, Anti Corruption cases, Quashing of FIR, Section – 304-B, 306, 307,493 to 498-A, of IPC etc