If you are being harassed in your marriage, then you can file for divorce on the grounds of cruelty. If you have been married under Hindu law then your divorce will also be governed by the same law. You can divorce your spouse only based on the reasons specified in the law. It is harder to seek a divorce simply only on the grounds that you no longer wish to remain married without it matching any reasons recognized by the law. However, it is possible to get a divorce if you and your spouse mutually consent to it. Divorce can take place if the husband or wife brings a petition to the Court based on the recognized reasons.
Though prenuptial agreements are not legally validated under religious Hindu marriage law, a prenuptial agreement can be legally enforceable as per contract law in India. A contractual prenuptial agreement should follow the legal rules of contracts given under the Indian Contract Act , 1872. To be valid, the contract should not be contrary to law or public policy, so if the marriage is governed by the Hindu Marriage Act, the contract cannot have provisions that violate that law.
The law allows for situations where one spouse is forced to withdraw from the company of the other. For instance, in a situation where your spouse is treating you with cruelty – either mentally or physically – it would be considered reasonable for you to leave them. Therefore, while considering your spouse’s petition for divorce will be decided upon after taking into consideration your reasons for leaving his company.
Yes, the law allows women to file for divorce against their husbands in the following instances:
- When the husband remarries before getting a divorce or in the lifetime of the first wife.
- Where after getting married, husband has been held guilty of rape, sodomy or bestiality.
- When husband and wife have been living apart for one year after the Court has instructed the husband to pay maintenance.
- When the woman is married off before she turns 15 years and she wants to end the marriage.
In order to grant a divorce, one of the first things that the Court checks is if they were in a marriage that was legally valid i.e. a subsisting marriage. The Court can only grant a divorce if the marriage legally existed. So, it checks if your marriage existed as per the law to go forward with divorce proceedings.
For example, Bhavana and Amit are in a live-in relationship. Bhavana cannot file a divorce against Amit as they are not in a “subsisting marriage” since they have not gone through the marital ceremonies or registered their marriage under the law.
A Marital relationship includes:
- Feelings of love and liking you have for your spouse
- Companionship and support you get from your spouse.
- Living in the same house as your spouse (Not mandatory)
- Sexual relations with your spouse.
- Having children with your spouse and their upbringing.
- Domestic responsibilities which you would be sharing with your spouse, such as finances of the house etc.
You have to file your case in the Family Court in your District. However, consult your lawyer before filing the case.
There may be situations where a particular District does not have a Family court. In these situations, the District Judge or a Civil Judge appointed by the State Government will perform the same functions as a Family Court judge.
Recently, many Courts have been using videoconferencing for matrimonial and divorce cases because it is hard for the parties to travel to another city just for the case. So, Courts have said that only after the husband and wife have discussed problems such as property, custody etc. and it has failed, that the case can proceed by the use of video conferencing. Further, both spouses have to consent to the use of video conferencing.
Under the law, the divorce proceedings in Court may be held ‘in camera’, i.e, cases that are those carried out in private, in the absence of the public and the press. The Family Court may direct the parties to use in camera proceedings or one of the parties can make a request for this, which will be considered by the Family Court.
For example, Seema has filed a case against Deb for divorce. During the case, because of the amount of sexual abuse faced by the wife, Seema, she may request the Court to conduct in-camera proceedings keeping in mind the sensitive nature of her case.
If your husband has converted to Islam, you can apply for divorce stating this reason. And since the marriage was performed as per Hindu law, the divorce will also be governed by Hindu law, even if your husband is not a Hindu anymore.