Theme: Divorce

Under Hindu Divorce law you cannot easily file for divorce simply because you unilaterally believe that your marriage is not working out. The Courts have recognized that “Irretrievable Breakdown of Marriage” is a situation where either one or both spouses are no longer able or willing to live with each other, thereby ending their marital relationship with no hope for its revival. The law does not specifically recognise this as a reason for divorce, but some courts have accepted it to be a valid ground. However, it would be hard to successfully get a divorce simply on this ground.

While your divorce case is being decided, along with it, you can apply for the custody of your children. Depending on the facts and circumstances of each case, the issue of custody will be decided keeping the best interest of the child.

Yes, an application for maintenance, whether temporary or permanent, can be made by either husband or wife.

Just because your spouse did not intend to hurt you or harass you, does not mean that it is not an act of cruelty. The intention of your spouse does not matter. Unintentional acts also amount to cruelty. For example, if your husband has a habit of beating you under the influence of alcohol, the excuse of him not “intending” to beat you, will not matter – it would still be an act of physical cruelty and you can go to the Court to file for a divorce.

Courts look at all acts of cruel behaviour that happen during the marriage and after filing the divorce. Some of the common cases of cruelty which go to Courts are:

• Demands of money or dowry leading to harassment and continuous ill-treatment which may happen before or after your marriage.
• A spouse registering various criminal cases or filing frivolous/multiple cases against you, leading to harassment.
• Getting advertisements and news published to hurt your reputation.
• When a spouse does not have sexual relations with you for a long time.
• Allegations of extramarital relationships.
• Ill-treatment by in-laws.

Cruelty is not a singular or isolated act done by one of the spouses. It has to be of such a nature that it is recurring or continuing over a period of time. However, there may be cases where a single conduct is bad enough or is an illegal act such as domestic violence. In such cases, Courts may consider such acts as acts of cruelty and grant the divorce.

Yes, Hindus have a separate law for divorce. The Hindu Marriage Act, 1955 is the law which governs Hindu marriages and divorce. Therefore, a couple married as per the Hindu Marriage Act must also get divorced under the same law.

In a situation where the spouse who filed for divorce dies, the divorce proceeding would be discontinued and therefore you would be a widow, not a divorcee. A divorcee is a divorced person.

In a situation where you have filed for divorce and your husband dies, the divorce proceedings may not necessarily be discontinued because certain legal obligations continue after his death. Therefore, your case for divorce can continue and you may claim maintenance from the legal heirs of your husband. Depending on the decision of the court, you will not only be a widow but also a divorcee.

Yes, the Court can order you to pay her temporary maintenance. It does not matter if she has earning capacity or not or whether she is qualified or not. If she does not have any source of income during the course of the proceedings, she can make an application for temporary maintenance and the Court can grant her the same.

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