This is an extensive section on different kinds of law. You might find navigating through this difficult at times as we’ve tried to include as much detail as we could about all the relevant laws.
Collecting evidence is of utmost importance if you’re bringing a case against your abuser and if you need proof of mistreatment for divorce/child custody. Here is an excellent guide on how you can collect and present evidence to build your own case without a lawyer!
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LIST OF CONTENTS:
- Divorce Laws summary
- The Process for Getting a Divorce
- Divorce Under Hindu Marriage Act
- Divorce Under Muslim Marriage Act
- The Muslim Women Act
- Indian Christian Divorce Act
- Special Marriage Act
- Zoroastrian + Parsi Divorce Act
- Non-Resident Indian (NRI) Divorce
- Domestic Violence Laws
- Child Custody Laws
- Rape Laws
- Dowry and Honour Killing Laws
LEGAL RIGHTS OF WOMEN
For a full detailed list of Legal Rights of Women in India
Every woman has the right to lead her married life with dignity and freedom, care and support from her spouse without abuse, violence (emotional, mental or physical) , neglect, fear or humiliation of any kind.
DIVORCE LAWS IN INDIA
There are different laws on divorce for different religions:
- Hindus (which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.
- Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872.
- Muslims are governed by Personal Laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986.
- Parsis are governed by The Parsi Marriage & Divorce Act-1936, with amendments in 1988.
- And there is also a secular law called Special Marriage Act,1954 and NRI Marriage Act.
A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it broadly clear that the Divorce can be obtained by two ways: (1) Divorce by Mutual Consent, and (2) Contested Divorce
1. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach a consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses. Duration of Divorce in Mutual Consent varies from one month to six months or more from States to States and as per the High Court directions.
2. Contested Divorce
As the name suggests, you will have to contest it. Indian laws in general recognize cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years), Unsoundness of mind (of Incurable form), Impotency, renouncing the world, etc. Aggrieved party has to take one of the above grounds of divorce and will have to file the case in the Court of appropriate jurisdiction. The party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly.
ANNULMENT OF MARRIAGE
Marriage in India can also be dissolved by means of Annulment. Procedure for annulment is same as that of Divorce except that the grounds for annulment are different than that of divorce.
Grounds for annulment are:
- pregnancy of wife by person other than the husband
- impotency prior to the marriage and
- impotency subsisting even at the time of filing the case.
Once annulment is granted by the Indian Court, status of the parties remains as it was prior to the marriage.
There are certain forms of marriages which are null and void despite the marriage being performed legally. Marriage is void under following circumstances:
- a) if either party has a spouse living at the time of the marriage
- b) the parties are not within the degrees of prohibited relationship (e.g brother and sister), unless the custom or usage governing each of them permits a marriage between the two;
- c) the parties are not sapindas of each other, unless the custom or usage governing each of them permits a marriage between the two.
How Long Will It Take?
Time duration for obtaining divorce varies from case to case & place to place. Generally speaking, contested divorce proceedings take approximately 18 to 24 months. Mutual Consent Divorce varies from 4 weeks to 7 months and more. In Delhi, Mutual Consent Divorce is possible within two to four weeks.
Generally speaking the procedure for obtaining Divorce in all forms of law (based on religion) is the same with only a bit of variation.
THE PROCESS OF GETTING A DIVORCE
Hiring a Lawyer
The very first step in getting a divorce is to hire a lawyer who would be acting as your legal advisor throughout the long process of divorce. While appointing a lawyer, you must make sure that he/she is experienced enough to handle your divorce case tactfully and efficiently. Your lawyer should take interest in your case and he/she must devote a substantial time to execute all the legal proceedings of your divorce. It is always advisable that you enter into an agreement regarding the fee structure at the very first day of your meeting with the lawyer.
The Procedure of Filing a Divorce
According to the Indian divorce laws there are mainly two ways to obtain your divorce, the mutual divorce and the contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to a settlement and get a “no-fault divorce”. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage act that you are entitled to. There are separate divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing for divorce in India. Laws are even laid down for Inter-caste marriages under the Special Marriage Act, 1956.
The following are the grounds on which divorces are commonly filed.
- Involvement of the spouse of the petitioner in adultery or indulging in sexual relationships outside his/her marriage.
- Willfully deserting or abandoning the petitioner for a continuous period of two years prior to the filing for divorce in India.
- Inflicting physical and mental abuses that may cause danger to life and health.
- Sexually impotent or inability to involve in sexual intercourse.
- Suffering from incurable diseases and insanity
Your lawyer will draft a divorce petition based on the grounds for filing a divorce in India as mentioned in the Indian divorce laws. You will be expected to provide your lawyer every necessary detail and documents that would enable him/her to file the case in the relevant court.
For filing for divorce in India, you are required to hand over the following photocopies of documents to your lawyer, if these apply to you.
- Income Tax statements for the past 2 or 3 years
- Details of your profession and your present remuneration
- Your birth and family related information
- Details of properties and assets possessed by you
Along with the above mentioned documents you need to provide your lawyer with a detailed account of your marriage that includes how and when you got married and what went wrong that led to the break-up of the marital bonding you once shared with your spouse. The more honest you are in your account the easier it will be for the lawyer to file a strong petition for a contested divorce. For further proceedings you will have to sign ‘vakalatnama’ to give authority to your lawyer to represent you in the courtroom. Shortly, the court will send a notice and a copy of your petition by registered post to your former spouse asking him/her to appear in the court on a specified date.
Facing the consequence of filing for divorce in India is quite challenging as it requires tremendous mental strength to fight against various social stigmas and economical threats. You should be well prepared to confront all impediments that will arise once you file a divorce in court.
Divorce is certainly not an easy procedure. The entire process of divorce that starts from coping up with emotional ups and downs to contesting for the long awaited divorce decree for several months is definitely a tough affair to get through. Before opting for a divorce you should be aware of the fact that a divorce procedure in India extents for almost a year and in some special cases of disputes the procedure may continue for years. The long distressing process of divorce will be easier for you to handle if you have a firm determination to get the divorce.
With the advancement of time and social awareness, several acts have been passed by the government to make the present day divorce procedure in India more progressive with respect to gender affairs and related sensitive issues. The Muslim Women Act 1986 was passed to protect the rights of Muslim women on divorce. For inter-caste and inter-religion marriages the divorce laws are approved under The Special Marriage Act, 1956.
A contested divorce is filed on the grounds that are mentioned in the acts passed out separately for different Indian religions.
Getting a divorce through mutual consent should always be preferred over the contested divorce as the procedure of getting a mutual divorce is simpler in comparison to that of the other. For a mutual divorce procedure in India, you can come to an agreement with your spouse where you may resolve all kinds of disputes regarding maintenance, custody of children and such.
The filing of a mutual divorce by both the husband and the wife is termed as ‘the first motion’. A couple can file for a second motion after a gap of six months. The six months time span is provided to the couple so that they get the time to reconsider their marriage.
A divorce decree can be passed before the completion of the six months term if all the mandatory requirements for the divorce are sufficed. If the divorce file is not withdrawn within eighteen months, the court passes a divorce decree. In case one of the sides withdraws his/her petition, the court initiates to make an enquiry. If the concerned side disagrees to give the consent, the court holds no right to pass the divorce judgment.
Obtaining divorce through mutual consent is quite advantageous as it saves both time and money. The provision for dissolving marriage through mutual divorce in India is included in Section 13 B of the Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976. Any marriage solemnized before and after the Marriage Laws (Amendment) Act, 1976 is entitled to this provision.
Though several laws have been passed with the progress of time, the divorce procedure in India is still complex and you will have to contest the divorce for several months. The Indian judicial law believes that the extended time span might work out well for the couple to reconsider their marriage and hence, a marriage will be saved from being dissolved forever.
A Brief Outline of the Procedure of Mutual Divorce in India
Mutual Divorce is to be filed by the couple only after they have lived apart for at least a year. A petition supported with affidavits for divorce should be filed in the district court by both spouses. The husband and the wife should jointly state to the court that they are unable to live together as they are facing immense difficulties in adjustment.
The filing of a divorce petition by both the husband and the wife is legally known as “The First Motion Petition for Mutual Consent Divorce”. “The Second Motion Petition for Mutual Consent Divorce” mentioned in the sub-section (2) of Section 13 B is filed when the couple reappears to the court for the second time after a period of six months. If the judge is satisfied after a hearing from both the husband and wife, the court announces a mutual divorce decree.
If the couple fails to appear in the court after six months and not later than eighteen months from the date of the first motion, the divorce petition becomes null and void. Either one of the couple can withdraw his/her petition within the six months term.
A judgment for mutual divorce is passed out only if all the necessary agreements required for a mutual divorce in India are strictly maintained. The husband and the wife should come to terms of settlement regarding the following issues.
- Custody of Child
- Return of Dowry Articles / Istridhan of Wife
- Lump Sum Maintenance Amount of Wife
- Litigation Expenses
For a mutual divorce in India, we would always suggest you to consult an experienced lawyer who will effectively guide you to get the divorce through a mutual agreement done between you and your spouse.
DIVORCE UNDER HINDU MARRIAGE ACT
As per the ancient Hindu laws there was no place for Divorce and it was with the codification of Hindu law that the first grounds for the new age laws were laid down. Divorce between two persons married under the Hindu Marriage Act is also governed by the same act.
GROUNDS FOR DIVORCE
A petition for divorce may be presented by either the husband or wife for dissolving the marriage on the following grounds:
That the other party
- has after the marriage had voluntary sexual intercourse with any other person; or
- has after the marriage treated the petitioner with cruelty (domestic abuse)
- has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition,
- has ceased to be a Hindu by conversion to another religion,
- has been incurably of unsound mind or has been continuously or intermittently suffering from a mental disorder that the petitioner cannot reasonably be expected to live with such a person,
- has been suffering from a virulent and incurable form of leprosy,
- has been suffering from venereal disease in a communicable form
- has renounced the world by entering any religious order.
- Has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive.
ADDITIONAL GROUNDS FOR DIVORCE BY A WIFE
In addition to the grounds stated above a wife may also present a petition for the dissolution of her marriage on the following grounds.
- Where the marriage was solemnized before the commencement of this Act, and the husband had married again before such commencement or that any other wife of the husband whom he had married before such commencement was alive at the time of the marriage. (In such a case it’s necessary that the other wife is alive at the time of presentation of the petition).
- That the husband has after the marriage been guilty of rape, sodomy or bestiality.
- That whether her marriage was consummated or not was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.
NO PETITION FOR DIVORCE CAN BE FILED BY EITHER PARTY UNLESS ONE YEAR HAS ELAPSED SINCE THE DATE OF MARRIAGE.
DIVORCE BY MUTUAL CONSENT
Under Section 13B of the Hindu Marriage Act, a husband and wife can file a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about their inability to continue the marital relationship due to some unavoidable circumstances. Both sides must voluntarily agree to dissolve the marriage.
Thereafter both parties have to make a motion to the court not earlier than 6 months and not later than 18 months from the date of presentation of the petition and the court, after hearing the parties and on being satisfied, will pass a decree of divorce.
FILING OF PETITION
Every petition shall be present to the District Court within the jurisdiction of which
- The marriage was solemnized.
- The other party at the presentation of the petition resides; or
- The parties to the marriage last resided;
- Where the petitioner is residing at the time of presentation of the petition in case the other party is residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years or more.
WHAT A PETITION SHOULD CONTAIN
Every petition presented should contain the following details
- The facts on which the relief claimed is based.
- That the petition is not presented in collusion between both the parties.
- The statements contained in the petition shall be verified by the petitioner or some other competent person
DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939
An Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.
Whereas it is expedient to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by a woman married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie; it is hereby enacted as follows:
- Short title and extent:
- This Act may be called the Dissolution of Muslim Marriages Act, 1939.
- It extends to the whole of India except the State of Jammu and Kashmir.
- Grounds for decree for dissolution of marriage – A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
- that the whereabouts of the husband have not been known for a period of four years;
- that the husband has neglected or has failed to provide for her maintenance for a period of two years;
- that the husband has been sentenced to imprisonment for a period of seven years or upwards;
- that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
- that the husband was impotent at the time of the marriage and continues to be so;
- that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
- that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years; Provided that the marriage has not been consummated;
- that the husband treats her with cruelty, that is to say.—
- habitually assaults her or makes her life miserable by cruelty of conduct that amounts to physical ill-treatment, or
- associates with women of evil repute or leads an infamous life, or
- attempts to force her to lead an immoral life, or
- disposes of her property or prevents her exercising her legal rights over it, or
- obstructs her in the observance of her religious profession or practice, or
- if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran; on any other ground which is recognised as valid for the dissolution of marriages under Muslim law;
- no decree shall be passed on the ground (iii) until the sentence has become final;
- a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfied the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and
- before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.
- Notice to be served on heirs of the husband, when the husband’s whereabouts are not known – In a suit to which clause (i) of Section 2 applies–the names and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on the date of the filing of the plaint shall be stated in the plaint.
- Notice of the suit shall be served on such persons, and
- Such persons shall have the right to be heard in the suit;
Provide that paternal uncle and the broker of the husband, if any, shall be cited as party even if he or they are not heirs.
- Effect of conversion to another faith – The renunciation of Islam by a married muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage :
Provide that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2
Provided further that the provisions of this Section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.
- Right to dower not to be affected – Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.
- Repeal of Section 5 of Act 26 of 1937 – Repealed by the Repealing and Amending Act, 1942 (25 of 1942) Sec. 2 and Sch. i.
DIVORCE UNDER MUSLIM MARRIAGES ACT
A Husband may divorce in the following manner-
- Talaq: which is release from the marriage tie immediately or eventually.
- Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife.
- Zihar: where a sane and adult husband compares his wife to his mother or any other female within the prohibited degrees.
A wife may divorce in the following manner:
- Talaqetafwiz: talaq by the wife under the husband’s delegated power.
- Divorce By Judicial Decree Under Dissolution Of Muslim Marriage Act 1939.
Following are the grounds on which a marriage may be dissolved under the Marriage Act.
- Lian: Where the wife is charged with adultery and the charge is false. She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure.
- Fask: The cancellation, abolition, revocation, annulment. Before the passing of the dissolution of Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask.
Woman’s Right To Divorce Under The Dissolution Of Muslim Marriage Act. 1939
A Muslim woman may file for divorce on the following grounds:
- That the whereabouts of the husband have not been known for a period of 4 years
- That the husband has neglected or has failed to provide for her maintenance for a period of two years.
- That the husband has been sentenced to imprisonment for a period of seven years or upwards.
- That the husband has failed to fulfill his marital obligation for a period of three years.
- That the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease.
- That the husband was impotent at the time of marriage and continues to be so.
- The women, having been given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18.
See the full Act here.
INDIAN CHRISTIAN DIVORCE ACT
The Indian Divorce Act deals with divorce among Christians. The reasons are almost similar to the ones under the Hindu Marriage Act. Roman Catholics do not come under the purview of any divorce proceedings since the Roman Catholic Church has not recognised divorce. The Divorce Act also does not contain any provision for divorce by mutual consent.
Maintenance: During the period when the divorce case is in the court, the husband has to give one fifth of his salary for the maintenance of his wife. Later, maintenance can be given either yearly or once and for all as total settlement.
Custody: Custody of the child is decided by the court after going into the details of each individual case.
The Dissolution of Marriage and Judicial separation (under the Indian Divorce Act, 1869), allows a Christian wife to file petition for a divorce either in High Court or District Court on the grounds:
- That her husband has exchanged his profession of Christianity and gone through a form of marriage with another woman.
- Has been guilty of incestuous adultery.
- Has been guilty of bigamy and adultery.
- Has been guilty of rape, sodomy or bestiality.
- Is guilty of adultery coupled with desertion, without reasonable excuse for two years or more.
The Indian Divorce Act, 1869, is an attempt to amend the law relating to the divorce of Christians and to confer jurisdiction on certain Courts in matrimonial matters. Section 7 of the Act specifically provides for the application of the principles and rules on which the Court for Divorce and Matrimonial Causes in England acts and gives relief.
The relief granted under Indian Divorce Act, 1869:
- Dissolution of marriage
- Nullity of marriage
- Judicial separation
- Protection orders
- Restitution of conjugal rights.
- The Courts also have powers to:
- Order adulterer to pay damages and costs
- Order alimony, pendante-lite (pending decision of the Court) or permanent
- Order settlement of property
- Make order as to custody of children in a suit or separation
Though Section 22 of the Act bars ‘divorce mensa et toro’ (a decree that can be obtained without the presence of the other party, an exparte decree), it provides for obtaining a decree for judicial separation on grounds of
- desertion, without reasonable excuse for two years or more.
Once the separation is awarded, from the date of the sentence, the separated wife would be deemed spinster, with respect to property, which she may acquire or which may devolve on her. This status would apply for the purposes of contract, wrongs and injuries and suing and being sued in civil proceedings.
III – DISSOLUTION OF MARRIAGE
10) When a husband may petition for dissolution – Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.
When a wife may petition for dissolution :
Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman ;
- or has been guilty of incestuous adultery,
- or of bigamy with adultery,
- or of marriage with another woman with adultery,
- or of rape, sodomy or bestiality,
- or of adultery coupled with such cruelty as without adultery would have entitled her to divorce a mensa et toro,
- or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
CONTENTS OF PETITION:
Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded.
11) Adulterer to be co-respondent :
Upon any such petition presented by a husband, the petitioner shall make the alleged adulterer a co-respondent to the said petition, unless he is excused from doing so on one of the following grounds, to be allowed by the court:
(a) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed ;
(b) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts to discover it;
(c) that the alleged adulterer is dead.
12) Court to be satisfied of absence of collusion:
Upon any such petition for the dissolution of a marriage, the Court shall satisfy itself, so far as it reasonably can, not only as to the facts alleged, but also whether or not the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery or has condoned the same, and shall also enquire into any counter charge which may be made against the Petitioner.
13) Dismissal of petition:
In case the court, on the evidence in relation to any such petition, is satisfied that the petitioner’s case has not been proved, or is not satisfied that the alleged adultery has been committed, or finds that the petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then, in any of the said cases the court shall dismiss the petition.
When the petition is dismissed by a District Court under this section, the petitioner may, nevertheless, present a similar petition to the High Court.
14) Power to Court to pronounce decree for dissolving marriage :
In case the Court is satisfied on the evidence that the case of the petitioner has been proved, and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, the court shall pronounce a decree declaring such marriage to be dissolved in the manner and subject to all the provisions and limitations in sections 16 and 17 made and declared :
Provided that the court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner has, in the opinion of the court, been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted or willfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such willful neglect or misconduct of or towards the other party as has conducted to the adultery.
No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued.
15) Relief in case of opposition on certain grounds :
In any suit instituted for dissolution of marriage, if the respondent opposes the relief sought on the ground, in case of such a suit instituted by a husband, of his adultery, cruelty, or desertion without reasonable excuse, or, in case of such a suit instituted by a wife, on the ground of her adultery and cruelty, the court may in such suit give to the respondent, on his or her application, the same relief to which he or she would have been entitled in case he or she had presented a petition seeking such relief, and the respondent shall be competent to give evidence of or relating to such cruelty or desertion.
16) Decrees for dissolution to be nisi:
Every decree for dissolution of marriage made by a High Court not being a confirmation of a decree of a District Court, shall, in the first instance, be a decree nisi, not to be made absolute till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court, by general or special order from time to time, directs.
Collusion: During the period any person shall be at liberty, in such manner as the High Court by general or special order from time to time direct, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not being brought before the court.
On cause being so shown, the court shall deal with the case by making the decree absolute, or by reversing the decree nisi, or by requiring further inquiry, or otherwise as justice may demand.
The High Court may order the cost of Counsel and witnesses and otherwise arising from such cause being shown, to be paid by the parties or such one or more of them as it thinks fit, including a wife if she have separate property.
Whenever a decree nisi has been made, and the petitioner fails, within a reasonable time, to move to have such decree made absolute, the High Court may dismiss the Suit.
17) Confirmation of decree for dissolution by District Judge:
Every decree for dissolution of a marriage made by a District Judge shall be subject to confirmation by the High Court.
Cases for confirmation of a decree for dissolution of marriage shall be heard (where the number of the Judges of the High Court is three or upwards) by a Court composed of three such judges, and in case of difference, the opinion of the majority shall prevail, or (where the number of the Judges of the High Court is two) by a court composed of such two Judges, and in case of difference, the opinion of the Senior Judge shall prevail.
The High Court, if it thinks further enquiry or additional evidence to be necessary, may direct such enquiry to be made, or such evidence to be taken.
The result of such enquiry and the additional evidence shall be certified to the High Court by the District Judge, and the High Court shall thereupon make an order confirming the decree for dissolution of marriage, or such other order as to the court seems fit:
Provided that no decree shall be confirmed under this section till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court by general or special order from time to time directs.
During the progress of the suit in the Court of the District Judge, any person suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce, shall be at liberty, in such manner as the High Court by general or special order from time to time directs, to apply to the High Court to remove the suit under section 8, and the High Court shall thereupon, if he thinks fit, remove such suit and try and determine the same as a court of original jurisdiction, and the provisions contained in section 16 shall apply to every suit so removed; or it may direct the District Judge to take such steps in respect of the alleged collusion as may be necessary, to enable him to make a decree in accordance with the justice of the case.
17A) Appointment of officer to exercise duties of King’s Proctor:
The Government of the State within which any High Court exercises jurisdiction, may appoint an officer who shall, within the jurisdiction of the High Court in that State, have the like right of showing cause why a decree for the dissolution of a marriage should not be made absolute or should not be confirmed, as the case may be, as is exercisable in England by the King’s Proctor; and the said Government may make rules regulating the manner in which the right shall be exercised and all matters in incidental to or consequential on any exercise of the right.
The Special Marriage Act, 1954
The Special Marriage Act, 1954 extends to the whole of India except the State of Jammu and Kashmir, but also applies to the citizens of India domiciled in Jammu and Kashmir.
Full text of the Act can be found here.
Who can enter into marriage under the Special Marriage Act?
Any two persons (male and female) can enter into marriage under the Special Marriage Act subject to the following conditions, namely:-
(1) The male has completed the age of twenty-one years and the female the age of eighteen years;
(2) Neither party has a spouse living,
(3) There should be valid consent for marriage from the parties,
(4) The parties must be fit for the marriage, and
(5) The parties are not within the degrees of prohibited relationship.
(1) Caste/Religion is not a factor for marriages under the Special Marriage Act.
(2) Age condition applies as in the case of The Hindu Marriage Act.
(3) Neither party has a spouse living at the time when the marriage is solemnized. (A widow/widower can enter into marriage. Similarly a divorcee can enter into marriage.) (4) Because of unsoundness of mind, a party may be incapable of giving a valid consent to the marriage
(5) A party might have been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children.
(6) If a party has been subject to recurrent attacks of insanity or epilepsy, that party is unfit for marriage.
(7) The term ‘prohibited relationship’ is defined in the Act.]
On July 7, 2006, the Supreme Court ruled emphatically that there can be no bar on inter-caste or inter-religious marriages. Those who harass and threaten such couples have to be prosecuted. In Lata Singh’s case SC observed, “This is a free and democratic country, and once a person becomes a major, he or she can marry whomsoever he/she likes”.
The marriage performed under the Special Marriage Act, 1954 is a civil contract and accordingly, there need be no rites or ceremonial requirements.
Notices of intended marriage
When a marriage is intended to be solemnized under this Act, the parties of the marriage shall give notice thereof in writing in the Form specified in the Second Schedule. The notice is to be given to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.
The Marriage Officer shall cause every such notice to be published by affixing a copy thereof to some conspicuous place in his office.
After the expiry of thirty days from the date on which notice of an intended marriage has been published, the marriage may be solemnized, unless it has been objected to by any person.
The marriage may be solemnized at the specified Marriage Office.
Marriage is not binding on the parties unless each party states “I, (A), take thee (B), to be my lawful wife (or husband),” in the presence of the Marriage Officer and three witnesses.
[Post Marriage position: Once the Couple get married under SMA or any Marriage get registered under the Act than it will be covered under the Act only for any matrimonial issue in future which is good for Muslim woman/wife. The personal Shariat law relating to marriage will not apply in future for the parties & as such the Muslim man getting his marriage registered under this Act will not be able to remarry during the lifetime of his first wife, nor can he get rid of his wife by pronouncing triple divorce in three months, he cannot even avoid providing alimony/maintenance to his wife with an excuse that adequate Mehar was given at the time of marriage hence no more financial compensation can be levied on him through family court.]
Objection to marriage
Any person may, before the expiration of thirty days from the date on which the above said notice of intended marriage has been published under sub-section (2) of Sec. 6, object to the marriage on the ground that it would contravene one or more of the conditions specified in Sec.4.
Note: Objection to the proposed marriage can be raised only on the ground that it would contravene one or more of the conditions specified in Sec.4 and the said conditions are: (1) The male has completed the age of twenty-one years and the female the age of eighteen years;
(2) Neither party has a spouse living,
(3) There should be valid consent for marriage from the parties,
(4) The parties must be fit for the marriage, and
(5) The parties are not within the degrees of prohibited relationship. In other words, parents or relatives cannot abort the marriage on the ground that they don’t like it or they are opposed to it on some other grounds.
“The maximum that relatives can do if they disagree with the inter-caste marriage of their children is to cut off all bonds with them. “But they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. This is a free and democratic country,” the Supreme Court said in a judgement.
Before the marriage is solemnized the parties and three witnesses shall, in the presence of the Marriage Officer, sign a declaration in the Form specified in the Third Schedule to this Act, and the declaration shall be countersigned by the Marriage Officer.
Certificate of marriage
When the marriage has been solemnized the Marriage Officer shall enter a certificate thereof in the Form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.
On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with.
If the marriage is not solemnised within three months from the date of notice, that notice would lapse and a fresh notice is to be given.
The approach to divorce in the Zoroastrian community seems to have changed considerably in the period following the Arab conquest. The early 9th-century Revayat of Aturfarnbag Farnbag-Strosh mentioned divorce in the case of a man whose wife is “bad” and “insubordinate” and who sleeps with non-Iranians whilst her husband is away from home.
In such a case the legitimate marriage is dissoluble, provided the wife consented. But the husband may choose to keep his wife with the intention to improve her, because by “doing so he reinforces the truth and goodness of the true faith in this world.”
This attitude to divorce is reinforced in the later Rivayat, where the husband is only allowed to divorce his legitimate wife with her consent, unless her misdemeanors have been discovered. Zoroastrian divorce laws, however, were subject to alteration and modification that reflect different exigencies at different times. In the later Rivayats, the matter of divorce is again raised, following a detailed discussion regarding the age of marriage, the negotiating of marriage contracts, the five kinds of marriage, the marriage ceremony and the division of the patrimony.
The only instance of a lay person being allowed to take another wife is if the first wife could not bear children, but he is not allowed to divorce her; nor is male impotence a ground for divorce.
These Rivayats also state that if the adulteress is repentant, then she is still to be regarded as the wife, if the authority in the land is not in the hands of Zoroastrians. If the Zoroastrians are in power, and a man catches his wife in adultery, or he hears of it from a collaborative source, then she is to be put to death.
These Rivayats seem to recognize that the only Zoroastrian grounds for divorce in a time of Muslim rule were apostasy and adultery. The woman was allowed to remarry with her husband’s consent.
In the modern period in both Persia and India, the attitude towards divorce remains one of reluctance. Although marriage is not regarded as a sacrament, but rather as a contract, the sanctity of married life is held in much importance and any violation of it is still frowned upon by many.
Some would attribute the low rate of divorce to the predominance of arranged marriages and the belief that such a marriage is an eternal bond. Until recently, it was common for young widowed women never to remarry.
- M. Fischer maintains that divorce is a 20th-century innovation amongst Zoroastrians in Persia, and reports that today Zoroastrians are under a uniform legal code, which was adopted by the community around 1935, and which approximates Muslim codes. This followed the introduction of a law in Persia in 1933, which permitted minority religious groups to have personal law cases adjudicated according to their own customs.
The Persian Zoroastrian community has an established Council of Mobeds, one of whose functions is to preside over and decide upon divorce cases in the Zoroastrian community. Couples seeking divorce must first file a suit with the Family Protection Court, which then refers it to the Council.
The verdict of the Council is then communicated to the Court which passes the final decree, including decisions regarding alimony, the custody, education and maintenance of children. The divorce then has to be registered at the Bureau of Statistics.
When the more educated Persians began to accept divorce more readily, a problem arose for divorced Zoroastrian women, who often received little or no financial support from their ex-husbands. They were expected to live on their mahriyas (bridal money payable on demand, especially in the case of divorce) despite the fact that the formal mahr, as specified in the Rivayats, is no longer contracted.
The emphasis in a modern divorce is on the groom paying the bride at a rate fixable according to half the male portion of patrimony (similar to the inheritance), rather than according to the actual ratio of the value contributed by her family. (Fischer maintains that the pattern of marriage exchanges is similar for Muslims, Zoroastrians, and Jews, and apparently stems from quite ancient times in Mesopotamia).
Taken from article by Jenny Rose, Columbia University, New York, Encyclopaedia Iranica
Parsi Divorce in India
With the influence of the British legislative system on Indian social structures, the Parsis had to contend with the introduction of legislation on marriage and divorce from the mid-19th century onwards. There have been several Parsi Marriage and Divorce Acts since the mid-19th century, the most recent being that of 1936, which was amended by the Parsi Marriage and Divorce (amendment) Act of 1988.
The first Parsi Marriage and Divorce Act was passed in 1865 and resulted from a legal suit ten years earlier filed by a Parsi woman for maintenance and restoration of conjugal rights, which had been ruled out of the jurisdiction of the Supreme Court on its ecclesiastical side. This and other such demands on the British legal system operating in India led to the formation of a commission of inquiry and the Acts of 1865.
Following the 1936 Act and its amendment in 1988, no Parsi is able to contract any marriage under this Act, or any other law in the lifetime of his or her spouse, whether a Parsi or not, except after lawful divorce or the declaration of the marriage as null and void or dissolved.
The copy of the decree for divorce, nullity or dissolution is sent to the local Registrar General of Births, Deaths and Marriages. Since 1865, special Parsi Chief Matrimonial Courts, consisting of Parsi delegates, have been designated in Calcutta, Madras, Bombay, and some other towns to hear suits under the Act.
At present, the grounds for divorce by any married person include:
– wilful refusal to consummate the marriage within a year after its solemnization;
– disorder at the time of the marriage which still continues (provided the plaintiff was unaware of it at the time of the marriage) or for at least two years immediately preceding the suit;
– the defendant’s pregnancy by a third party at the time of marriage provided no marital intercourse has taken place since the plaintiff learned about it;
– committing adultery, bigamy, or rape after marriage;
– cruelty toward the spouse;
– affecting the spouse with venereal disease;
– the husband forcing his wife into prostitution;
– if the defendant has completed one year or more of at least a seven-year jail sentence;
desertion for at least two years;
– if the plaintiff has been awarded separate maintenance by the magistrate and the two have not had marital intercourse for at least two years;
– and apostasy.
The Parsi Marriage and Divorce Act, 1936 and Amendment, 1988
If a Parsi performs a marriage with a non-Parsi such a marriage is invalid under the act. Among the Parsis there are no sects or denominations and hence no inter caste or inter sect marriages.
Parsi Marriage and Divorce Act, 1936 lays down prohibition to marriage on the basis of consanguinity and affinity in Schedule I to the Act.
Under this act, a marriage is void:
- If parties are within prohibited relationship of consanguinity or affinity,
- If necessary formalities of marriage have not been performed
iii. If any party to marriage is below requisite age of marriage
- Either party to the marriage was impotent
The provision under this act, is also similar with this modification that period of limitation from that date of marriage for filing the suit for divorce on this ground is two years and not one year as under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.
The Act laid down grounds for divorce or nullity as insanity, non-consummation owing to physical causes, absence or desertion for seven years, adultery and cruelty. While almost all other grounds of divorce remained the same, the period of desertion was brought down from 7 years to 3 years and later to 1 year. A Parsi husband or wife may file a suit to dissolve the marriage tie under section 31 of this act. The marriage of such husband or wife shall, with compliance of the requirements contained under the provisions of the said section, be dissolved. Parties may sue for divorce on any one or more of the grounds provided under section 32 of the act. When a court passes a decree for divorce, the court shall send a copy of the decree for registration to the registrar of marriages within its jurisdiction appointed under section 7 of the act. The registrar shall enter the same in a register to be kept by him for the purpose, and the provisions of part II applicable to the registrars and registers of marriages shall be applicable, so far as may be, to the registrars and registers of divorces.
Continuous absence for seven years is a ground for divorce. The presumption under this section is with reference to the filing of the proceeding for dissolution of marriage and not with reference to any particular date.
Three conditions are to be imposed. Firstly, the plaintiff should be ignorant of the fact. If he knows the fact of pregnancy and still marries, it is a case of ‘voluntary consent’ and doctrine of “volunti non fit injuria”. Secondly, the suit should be instituted within two years of the date of marriage. Thirdly, after the knowledge of pregnancy there should be no cohabitation. If there still cohabitation, divorce cannot be granted on the doctrine of condonation.
Under this act, mutual consent and irretrievable breakdown of marriage are not grounds of divorce through a decree for judicial separation may be followed by a decree of divorce if the parties have not had marital intercourse for the statutory period since such decree or order. It is to be noted that section 32B providing for mutual consent for divorce has been inserted in this Act under this particular Act.
Question whether constructive desertion has ended is to be decided by interference drawn from the facts. Thus, such decision on the facts is to be disposed of finally by the delegates.
“Causing of grievous hurt” under the Parsi Marriage and Divorce Act, 1936 is ground for divorce. Proviso to clause (dd) of this act, lays down that in a petition for divorce on the ground of cruelty , the court has discretion to pass a decree of divorce or judicial separation.
Rape and unnatural offences are ground of divorce for both husband and wife.
If at the time of marriage one of the parties to the marriage was of unsound mind and continued to be so upto the date of presentation of the plaint, the plaintiff can obtain a decree of dissolution of marriage provided he or she had filed the suit within three years from the date of marriage. But if a Parsi knowingly marries an insane person, marriage cannot be avoided. Post marriage insanity of a spouse is not a ground for divorce.
Parsi divorce rates are higher than those for other Indian communities because, when compared to Hindu law, Parsi law has always made divorce easier. Remarriage after the death of a spouse is permitted for both sexes. Leprosy is not a ground for divorce in Parsi law unlike that in Muslim law and Hindu Law.
Full text can be found here.
LAWS RELATED TO NRI DIVORCE
There is a growing trend for Indian women or men to get married to NRIs (Non-Resident Indians). The desire to settle in a foreign country for better quality of life inspires Indians to tie knots with NRI brides and grooms. The statistics show that 225 women from metros get married to NRIs every year, and out of this almost 25 are either deserted by husbands or want to end their marriage due to reasons of deception or hiding facts. In light of this it is very important for Indians who get married to NRIs to keep an idea of laws related to NRI divorce.
The trend of marrying NRIs is very much prevalent in the state of Punjab. National Commission for Women says there are 15,000 women deserted by NRIs in Punjab alone. There are lots of Punjabis settled abroad. The parents of these Punjabi boys and girls insist their children on getting their spouses from India so that a cultural continuity is maintained. In fact the parents of the boys who are settled outside India ask a lot of dowry from the girl’s family, and the family manages to pay any amount for marrying their daughters to NRIs.
However, many of such marriages end in divorce. Some common situations that lead to divorce are:
- The NRI spouse already has another spouse, and in some cases children also, settled with him abroad. In most of the cases the groom does not take the bride with him leaving her behind with parents. But when the reality is disclosed the girl’s family seeks divorce for their daughter.
- The NRI spouses exaggerate about their possessions in the foreign country – home, vehicle, high paying job, but actually might not be in a position to support a family after marriage.
- The lifestyle of the NRI spouse is too advanced for the Indian spouse to keep pace with him or her. The NRI spouse feels that he or she is not suitable as a partner and seeks divorce on the grounds of incompatibility.
The pattern of NRI wife abandonment can also be when:
(a) a woman who is residing with her husband in a foreign country suddenly finds her husband has disappeared leaving her in the lurch;
(b) a woman who has been residing abroad with her husband is either deceptively and/or coercively taken back to India and left there without her passport, visa, and money and thus without any way of rejoining her husband; and
(c) a woman who is married before her husband migrates to a foreign country but is never sent sponsorship for a visa to join him. Alternatively, a man who is already living abroad may return to India to marry and then leave with promises to send for his bride. However, the visa papers never arrive. Since a large number of such marriages take place hurriedly, mostly when men come back to India for a visit, the women have been popularly labelled “holiday brides.”
Divorce for NRI’s
Whatever may be the reason for divorce, a person who has married an NRI should be aware of the basic laws related to NRI divorce. If both the spouses are Indians and have been married under Hindu marriage Act of 1955 they can seek divorce with mutual consent under section 13-b that provides for divorce by mutual consent. If both the spouses are residing in USA, or any other foreign country, then they can seek divorce by mutual consent under the country’s divorce laws related to foreign marriages. The Indian legal system will recognize the divorce only if it is with the consent of both the parties.The phenomenon of wives abandoned by their NRI husbands has been growing invisibly for more than a decade. Nearly every Indian state has women deserted by NRI men who live in various foreign countries including Canada, the UK, European and Middle Eastern countries, and the USA.
There are not many laws that protect the interest of Indians married to NRIs. However, due to the rise in the number of troubled marriages among Indians and NRIs, the government is initiating non-governmental organizations in India and abroad. These organizations give advice to Indian men and women who are married to NRIs and residing in abroad. They offer counseling, legal advice, and moral support in the event of divorce and separation. Even if the divorce is taking place abroad it would be good to appoint an attorney who is proficient in dealing with Indian divorce laws related to NRIs.
DOMESTIC VIOLENCE LAWS
The following acts on the part of the husband constitute domestic violence and are illegal in most countries and against which the local police of every country can be approached for protection and help.
- Physical abuse
- Mental and emotional abuse
- Verbal and social abuse
- Sexual abuse
- Economic abuse
Instances of Physical abuse:
- Hair pulling, limb twisting, slapping violently, punishing, cutting, stabbing, confinement to a room
- Usage of weapons and firearms
- Repeatedly forcing abortions and miscarriages
Instances of mental and emotional abuse:
- Blackmailing, coercion, threat, pressure
- Accusing the woman of loose morals
- Humiliating, both in public and private
- Breaking household goods, killing family pets
- Threatening to hit or harm children and close relatives
Instances of sexual abuse:
- Forcing intercourse or other sexual acts without consent
- Physically assaulting sexual parts
- Treating partner like a sexual object
- Demanding forms of unnatural sex
- Threatening violence or punishing for non-compliance with sexual demands.
Instances of verbal/social abuse:
- Abusing and derogatory name calling
- Maligning in front of peers and friends
- Insulting in front of others
- Abusing her parents, friends and family
- Enforcing isolation, physical confinement, restricting familial contacts, controlling movement, generally treating badly.
Instances of economic abuse:
- Controlling all family income and limiting access to finances
- Forcing not to take up employment
- Forcing financial dependency
- Not providing sufficient funds for household expenditure
- Accusing of misuse or misappropriation of finances.
]Domestic Violence law in India
The Protection of Women from Domestic Violence Act, 2005 (PWDVA) was introduced in order to effectively protect the rights guaranteed to the women under the Constitution who are victims of domestic violence within the family. The law extends to all states except Jammu and Kashmir and as of November 2007, the law has been ratified in four states in India; namely Andhra Pradesh, Tamil Nadu, Uttar Pradesh and Odisha.
According to the PWDVA, domestic violence inflicted by an abuser can be defined or categorized in the following ways:
- harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person (any woman, who is, or has been in a domestic relationship with the respondent/abuser and who alleges to have been subjected to any act of domestic violence) or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
- harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
- has the effect of threatening the aggrieved person or any other person related to her by any of the conduct mentioned in the above two clauses.
- Otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
The abuse the victim or aggrieved person has experienced so far could be categorized into the following kinds:
- Physical abuse: Any act or conduct which can cause bodily pain, harm or danger to life, limb or health or impair the health or development of the victim or aggrieved person. This usually includes assault, criminal induction of fear, and criminal force.
- Sexual abuse: Any act or conduct of sexual nature that involves abuse, humiliation, degradation or violation of dignity of the woman falls under this category.
- Verbal and emotional abuse: This kind of abuse usually includes insults, ridicule, humiliation, name calling, and also, repeated threats to cause physical pain to any person in whom the victim is interested in.
- Economic abuse: If the victim is deprived of all economic or financial resources to which she is entitled to under any law or custom whether payable under an order of a court or otherwise, then it is considered to fall under this category. It includes expenses that might be needed by the victim or aggrieved person out of necessity including, but not limited to, household necessities, joint property ownership or payment of rental related to shared household and maintenance; Also, disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the victim or aggrieved person has an interest or is entitled to use by the virtue of the domestic relationship, restriction to continued access to resources or facilities which the victim is entitled to use or enjoy by virtue of domestic relationship will be considered as economic abuse.
It is explicitly mentioned in the law that any responsible individual who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer and he/she will not be liable to civil or criminal action for providing in good faith the information they believed was true.
Duties of the Police, Service providers and Magistrate
If and when a police officer, protection officer, service provider or Magistrate receive a complaint of domestic violence or is otherwise present at the place of an incident of domestic violence shall inform the victim of the following information:
- Her right to make an application for obtaining relief by way of a protection order (a document issued by a court to protect the victim and her children from harassment or abuse under Section 18), a monetary relief (means the compensation which the Magistrate may order the respondent to pay to the aggrieved person, at any stage during the hearing of an application seeking any relief under this Act, to meet the expenses incurred and the losses suffered by the aggrieved person as a result of the domestic violence;), a custody order, a residence order, a compensation order or more than one such order.
- The victim should be provided with details of available service providers and the services that will be offered. .
- The victim should be informed of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987); and also of her right to file a complaint under the section 498A of the Indian Penal Code (45 of 1860), wherever relevant.
Shelter homes and Medical facilities are obliged to provide shelter and medical support when the victim or her respective Protection Officer requests for their services. It is to be noted that the Protection Officers are appointed by the State Government and they will perform their duties in their assigned area. The Protection Officers are mostly women and they have the necessary experience.
The Protection Officers are expected to perform the following duties:
- assist the Magistrate in the discharge of his functions according to the act.
- to make a domestic incident report to the Magistrate, by following the prescribed method upon receipt of a complaint of domestic violence and also forward those copies to the police office incharge.
- to make an application to the Magistrate requesting, compensation or issuance of protection or claiming relief as per the desire of the aggrieved.
- to ensure that the victim or aggrieved person is provided legal aid under the Legal Services Authorities Act, 1987 (39 of 1987) and provide the prescribed form to make a complaint free of cost.
- to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
- to ensure availability of medical facilities and shelter to the aggrieved in the jurisdiction of the Magistrate.
- to ensure that the order for monetary relief under Section 20 is complied with and executed in accordance with the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
The Government’s duty is to ensure effective coordination between the services provided by concerned Ministries and Departments dealing with law, home affairs including law and order, health and human resources to address issues of domestic violence.
Procedure for obtaining order of reliefs
Application to Magistrate
The victim or a Protection Officer or any other person may present an application to the Magistrate in order to obtain on or more reliefs according to the law provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by the Protection Officer or service provider.
The relief sought may include a relief for issuance of an order for payment of compensation based on evidence accepted by the court in favour of the aggrieved person. The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the court. The Magistrate shall endeavour to dispose of every application made within a period of sixty days from the date of first hearing.
Service of notice
After the Magistrate decides the date of the first hearing, the Protection Officer will be given a notice which is to be served to the abuser or respondent under Section 12 as prescribed by the Magistrate within a maximum period of two days. The Protection Officer would further make a declaration of service of notice as proof that such notice was served upon the abuser/respondent and on any other person as director by the Magistrate unless the contrary is proved.
The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who possess such qualifications and experience in counselling as may be prescribed. The Magistrate would further issue direction as to when the next date of hearing of the case within a period not exceeding two months.
Assistance of welfare expert
The Magistrate may secure the services of a person, preferably a woman, who may be related to the victim or not, including a person engaged in promoting family welfare as he thinks fit, for the purpose of assisting him in discharging his functions.
Proceedings to be held in camera
If the magistrate considers that the circumstances of the case so warrant, and if either party to the proceedings so desires, he may conduct the proceedings under this Act in camera.
Right to reside in a shared household
This aims to protect the woman’s right to reside in a shared household. The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
After examining the provided information and hearing from both the respondent and the aggrieved person, if the Magistrate determines that domestic violence has taken place or is likely to take place, pass a protection order in favor of the aggrieved person and prohibit the abuser or respondent from:
- restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household.
- directing the respondent to remove himself from the shared household.
- restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides.
- restraining the respondent from alienating or disposing off the shared household or encumbering the same.
- restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate: or
- directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.
Furthermore, the Magistrate may impose any additional conditions, require the respondent to execute a bond, or direct the officer in charge of the nearest police station to give protection to the victim or aggrieved person or assist her or the person making an application on her behalf in the implementation of the order to protect the aggrieved person.
The Magistrate may direct the abuser/respondent to pay monetary relief to meet expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to:
- loss of earnings;
- the medical expenses;
- the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and
- the maintenance for the aggrieved person as well as her children, if any, including an order under the addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.
The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require. The monetary relief copy will be sent to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides and the monetary relief granted to the aggrieved person should be paid by the respondent within the period specified in the Magistrate’s order.
The Magistrate, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:
Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such a visit.
In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and damages for the injuries, including mental torture and emotional distress, caused by the acts of domestic violence committed by that respondent.
Court to give copies of order free of cost
The Magistrate shall, in all cases where he has passed any order under this Act, order that a copy of such order, shall be given free of cost, to the parties to the application, the police in-charge of the police station in the jurisdiction of which the Magistrate has been approached, and any service provider located within the local limits of the jurisdiction of the court and if any service provider has registered a domestic incident report, to that service provider.
Save as otherwise provided in this Act, all proceedings under section 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
There shall lie an appeal to the Court of Session within thirty days from the date on which the order made the Magistrate is served on the aggrieved person or the respondent, as the case may be, whichever is later.
See The Protection of Women From Domestic Violence for more details.
In legal terms rape in India is seen as a criminal offence. The criminalisation of rape in India has been covered in several Acts. Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code, 1860 )
A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :
- Against her will.
- Without her consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under sixteen years of age.
Sexual intercourse refers to the act of penetration. Penetration in this context is defined as that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years of age.
Given contemporary cases of rape, such as for example Sakshi v Union of India, have resulted in organisation such as the National Commission for women arguing for the redefinition of rape. There have been several amendments to the Penal code since it was written.
Some of these amendments include:
U/s 228A Identifying the rape victim without consent
U/s 114-A rape implies the absence of consent
U/s 53(1) That the rapist can be submitted for medical examination for the purposes of collecting evidence
U/s 164A A rape victim can be provided with medical care
S.376(2) i.e. Custodial rape,
- 376(A) i.e. marital rape
- 376(B to D) i.e. Sexual Intercourse
According to the Law Comission’s 172nd report submitted to the Government of India, argues for rape to be interpreted as being gender neutral and more broad. Section 375 has been proposed as : Section 375. Sexual Assault.
Sexual assault means (a) penetrating the vagina (this term shall include the labia majora ), the anus or urethra of any person with-
- any part of the body of another person, or
- an object manipulated by another person except where such penetration is carried out for proper hygienic or medical purposes;
(b) manipulating any part of the body of another person so as to cause penetration of the vagina (which shall include the labia majora ), the anus or urethra of the offender by any part of the other person’s body;
(c) introducing any part of the penis of a person into the mouth of another person;
(d) engaging in cunnilinggus or fellatio; or
(e) containing sexual assault as defined in clauses (a) to (d) above in circumstances falling under any of the six following descriptions:
First – Against the other person’s will.
Secondly – Without the other person’s consent.
Thirdly – With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or hurt.
Fourthly – Where the other person is a female, with her consent, when the man knows that he is not the husband of such other person and that her consent is given because she believes that the offender is another man to whom she is or believes herself to be lawfully married.
Fifthly – With the consent of the other person, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by the offender personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that to which such other person gives consent.
Sixthly – With or without the other person’s consent, when such other person is under sixteen years of age.
Explanation: Penetration to any extent is penetration for the purpose of this section.
Exception: Sexual intercourse by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.
Additionally, marital rape is not considered at the same level as any other form of sexual assault. According to Priyanka Rath on the India Law Journal, an additional recommendation that was made in the 172nd report to include marital rape as a “forced sexual intercourse by a husband with his wife [that] should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence.”
CHILD CUSTODY LAWS
Custody over a child in Indian Law
India law states that, in determining the guardianship and custody over a minor, the minor’s welfare should be taken to be of paramount importance. However, since “welfare” is a vague notion, the Courts often have some flexibility when it comes to who they give the custody to. This provision is included in the Indian Divorce Act, as well as in the Guardians and Wards Act.
Indian Courts can issue Interim, or Permanent Orders, determining the custody over the child. This means, that even before the proceedings are over, the Court can issue an Interim Order granting the custody over the child to one of the parents, if it deems it to be in the interest of the child’s welfare or security.
There seems to be a tendency within Indian Courts to grant the custody to the mother, in the event of a divorce. The view that the custody over the child belongs primarily to the mother has also been upheld by the Supreme Court of India, even in cases where the custody was ultimately given to the father (e.g. Ganguli v. Ganguli; AIR 2008 SC 2262). This is especially true of younger children. In case of older children, they can sometimes be asked about their preference regarding the custody (see below).
Physical vs. Legal child custody
- Physical child custody means that the child will live with this parent
- Legal child custody means that the parent has the right to make important (religious, legal etc.) decisions that would affect the child’s right
In general, in case of a divorce, Courts tend to grant physical custody to the parent that is deemed better equipped (financially, in terms of parental skills etc.) to take care of the child; legal custody remains shared between both parents, until the child reaches 18 years.
Recently, the High Court in Madras tried to order shared physical custody over a little girl to both of her parents – the girl would stay a few days a week with her mother, and a few days a week with her father. However, the Supreme Court annulled this decision, saying that the child should not be treated as a “shuttle cock”. This shows that the practice of the Indian law is far from allowing for shared physical custody over a child; therefore, the parents would usually face the task of convincing the judge that they are the “better equipped”, or better suited one to maintain physical custody over a child in the case of a divorce.
[heading type=”4″]Child Custody under Hindu Law[/heading] Hindu Minority and Guardianship Act (1956; HMGA) complements the Guardian and Wards Act (1890), which determines who should be deemed a guardian of a minor under different circumstances. HMGA states that until the age of 5, the child should ordinarily be with the mother. With regards to older children, they are often given the choice as to in whose custody they want to remain. However, their decision is adhered to, only if it is perceived to be consistent with their welfare. For example, in “Venkataramma v. Tulsi”, the Court disregarded the children’s wishes, as it found them to be influenced by “wholesale persuasion” and torture.
Child Custody under Muslim Law
Under Muslim law, the mother has the primary right to custody (hizanat), unless she is deemed unfit, or disqualified herself.
Different schools of Islam have different understanding and rules concerning the right of hizanat. In many of them, the mother only has this right up until the time when the child is 7 years old, when the right is passed on to the father.
The conditions for denying a mother of the right of hizanat include:
- Mental problems or insanity (not being of sound mind)
- Bad moral character
- Living in a place that poses a moral, physical or other threat to the child
As can be seen, these are quite broad and can be interpreted differently. For example, Shia law stipulates that if a person is not a Muslim, their right of hizanat is revoked. However, as a principle, Muslim laws also take the child’s welfare as the primary concern in deciding hizanat.
Child Custody under Christian Law
Christian Law does not contain any specific provisions about the child custody, so the decisions are made based on the Indian Divorce Act, the Guardian and Wards Act, and other relevant laws, which stress the welfare of the child as their primary concern.
Child Custody under Parsi Law
The custody of the children is provided in Parsi Marriage and Divorce Act, 1936 under section 49, which states that “any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the final decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the age of 47 [eighteen years] the marriage of whose parents is the subject of such suit…” (http://indiankanoon.org/doc/877172/)
The issue of custody is dealt with by the Guardians and Wards Act of 1890, under which it is a well-established principle that the welfare of the child is paramount – i.e., the most important thing considered by the Guardian Court when deciding custody.” No matter what customs or personal law rules the parents’ community or sect follows regarding custody, any parent who wants custody and does not presently have custody has to seek custody from the Guardian Court. In other words, there is never any automatic transfer of a child’s custody to a particular parent.’
Under Indian Law, taking, giving, demanding, or advertising for dowry is ILLEGAL. Those who participate in this practice can be sentenced to a minimum of 6 months in jail in addition to paying a hefty fine.
If your in-laws are demanding dowry from you and your family, you can file a case against them. If they are physically abusing you, you can immediately file a 498A under the Protection of Women from Domestic Violence Act to gain protection from them.
Remember, it is always useful and very important to document evidence of them asking for dowry (eg. e-mails, text messages, voice mails), and of the abuse (eg. bruises, cuts, burns).
Section 498A of the Indian Penal Code
Section 498A of IPC was inserted in 1983. It protects the wife from harassment by the husband or the husband’s family in cases where an illegal dowry is sought. The section reads:
498A. Husband or relative of husband of a woman subjecting her to cruelty.
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation-For the purpose of this section, “cruelty” means-
(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or
(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand. (More)
Dowry harassment or violence can come in many forms:
- Hinting, asking or demanding, whether directly or through a mediator, for property, items, specific expenses etc.
- Any of the following actions for not complying with a dowry demand:
- Threatening you with a divorce or with throwing you out of the house, or with physical violence, etc.
- Verbal abuse (humiliating, insulting or harassing you or your loved ones)
- Harming you physically (not giving you food, hitting you, pushing you around, slapping you, beating you with objects, pulling your hair, slapping you, etc.)
- Not allowing you contact with your friends and family
- Throwing you out of the marital home
- Not providing you money for groceries, rent, children’s needs, personal needs, etc. (More)
See the full text here.
We know this was an overwhelming page. Finding legal support can be very difficult and especially if you cannot afford to pay for it.