Mutual Consent Divorce

It is not disputed that, as per Hindu law, divorce was not recognized as a means to put an end to marriage which was always considered to be a sacrament with only exception where it is recognized by custom.

Hindus after coming into force of the Hindu Marriage Act, 1955 can seek to put an end to their marriage by either obtaining a declaration that the marriage between them was not valid on the grounds (a person already has a spouse at the time of marriage, within prohibited degree of relationship, couples are not sapindas of each other) or other provision of Hindu Marriage Act, 1955.

Section 13-B (divorce by mutual consent ) makes provision for divorce by mutual consent on the ground that-

• Both the parties to the marriage have been living separately for a period of one year or more.
• They have not been able to live together.
• They have now mutually agreed for the dissolution of the marriage.

Couples might find incompatibility between them and might file for a petition of divorce by mutual consent. It is a novel approach but, at times, situation arises where divorce by mutual consent becomes difficult.

When and Where Mutual Consent Divorce Petition will be File.

• Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, 1976 , (68 of 1976 .) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that thy have mutually agreed that the marriage should be dissolved.
• On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Annulment of Marriage

What is the Annulment of Marriage?

Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. In Hindu Law, Marriage is treated as a Samaskara or a Sacrament. Divorce, however is a thorny question and Annulment is a very unusual remedy. In our modern world, an Annulment tends to be more a creature of religion than of law. Annulments are rarely granted and when they are, very specific circumstances must exist.

What Is Annulment Of Marriage ?

In strict Legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this.

Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

Grounds For Annulment

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The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence including the following:

• Either spouse was already married to someone else at the time of the marriage in question;
• Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse’s reaching marriageable age);
• Either spouse was under the influence of drugs or alcohol at the time of the marriage
• Either spouse was mentally incompetent at the time of the marriage
• If the consent to the marriage was based on fraud or force;
• Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;
• The marriage is prohibited by law due to the relationship between the parties. This is the “prohibited degree of consanguinity”, or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.
• Prisoners sentenced to a term of life imprisonment may not marry.
• Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease)

Basis of An Annulment

In Section 5 of the Hindu Marriage Act 1955, there are some conditions laid down for a Hindu Marriage which must be fulfilled in case of any marriage between two Hindus which can be solemnized in accordance with the requirements of this Act.

Section 5 Condition for a Hindu Marriage – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

• Neither party has a spouse living at the time of the marriage;
• At the time of the marriage, neither party,-
• is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
• has been subject to recurrent attacks of insanity or epilepsy;
• The bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
• The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
• The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two:

An annulment may be granted when a marriage is automatically void under the law for public policy reasons or voidable by one party when certain requisite elements of the marriage contract were not present at the time of the marriage

Void Marriages

A marriage is automatically void and is automatically annulled when it is prohibited by law. Section 11 of Hindu Marriage Act, 1955 deals with

Nullity of marriage and divorce

Void marriages – Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 mentioned above.

Bigamy

If either spouse was still legally married to another person at the time of the marriage then the marriage is void and no formal annulment is necessary. Interfamily Marriage. A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.

Marriage between Close Relatives.

A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

Voidable Marriages

A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud
Section 12 of Hindu Marriage Act, 1955 deals with

Voidable Marriages

• Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
• that the marriage has not been consummated owing to the impotency of the respondent; or
• that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
• that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or
• that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
• Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage
• on the ground specified in clause (c) of sub-section (1) shall be entertained if-
• the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or
• the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
• on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-
• that the petitioner was at the time of the marriage ignorant of the facts alleged;
• that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
• that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

Impotency

If either spouse was physically incapable of entering the marriage at the time of the marriage, usually because of a lack of ability to have sexual intercourse, and if this inability appears incurable or if the spouse refuses to take any action to cure the inability, there are grounds for an annulment. The inability must continue and must exist at the time of suit.

Lack of Mental Capacity

If the court finds that either spouse did not have ability to understand the nature of the marriage contract or the duties and responsibilities of the marriage contract, then there may be grounds for an annulment. However, if the spouse who did not have the ability to understand the contract gains the capacity to understand it and freely lives with the other spouse, then this ground does not apply. This particular ground most often applies to someone who has been mentally ill or who has suffered from mental or emotional disorder.

A Party was Under the Age of Consent

If you were married while you are under the legal age, your marriage may be annulled. The legal age for boys is 21 years and for girls is 18 years. A marriage by an underage party may become legally binding and incapable of annulment if the cohabitation of the parties as husband and wife continues voluntarily after the person reached the age of consent.

Fraud or Force

If the consent to the marriage contract was obtained either by fraud or force, then there are grounds for an annulment. Fraud is simply not telling the truth in order to induce the other party to enter into the marriage contract. Whether the failure to tell the truth will be grounds for annulment depends of the facts of the case. Force implies the use of or threat of the use of physical violence to make a person get married. The person who has been threatened or deceived about the marriage contract continues to live with the spouse after the discovery of the fraud or the deception or after being forced into the marriage, it is possible that this ground will not apply.

Contested Divorce

Due to existence of diverse religious faiths in India, the Indian Judiciary has implemented laws separately for couples belonging to different religious beliefs.

• The Hindu Marriage Act, 1955
• The Parsi Marriage and Divorce Act, 1936
• The dissolution of Muslim Marriage act, 1939
• The Parsi Marriage and Divorce Act, 1936
• The Special Marriage Act, 1956
• The Foreign Marriage Act, 1969

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.

Contested divorce in India is a formal way of seeking divorce from your spouse who is not agreeable to the idea of divorce. Contested divorce in India reflects a situation wherein one spouse has finally made up his/ her mind to proceed with divorce. Importantly reasons for contested divorce are not your personal choice to come out of the relationship. Reason should be one which is attributable to your spouse whose conduct, actions, omissions and failure to discharge expected reasonable behaviour that has annoyed you to the extent that you come to a conclusion that living together is not possibility.

Law provide various grounds to seek divorce from your spouse. Grounds for contested divorce, which are commonly used are:-

• Divorce on the ground of cruelty.
• Divorce on the ground of adultery
• Divorce on the ground of desertion.

Beside above, there are various other grounds such as unsoundness of mind, civil death, etc. to seek and start contested divorce in India

Let’s understand in simple language above three most commonly used grounds for divorce:

Your Foreign Divorce Decree Recognized or Valid in India.

That the relationship of marriage governed by the Hindu Marriage Act, 1955 can be dissloved by foreign decree of divorce has been long recognised by the Courts in India.The decision reported in AIR 1975 SC 105 (Smt. Satya v. Teja Singh) is a complete answer to the aforesaid question. Their Lordships have held that foreign decrees of divorce including decrees of Sister States are to be either accorded recognition or to be treated as invalid depending upon the circumstances of each case. Section 13 of the Code of Civil Procedure makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon between the same parties except-

Section 14, C.P.C. creates a presumption that a foreign judgment, certified copy of which has been produced was a judgment pronounced by a court of competent jurisdiction unless the contrary appears on the record, but such presumption may be displaced by proving want of jurisdiction. Thus a combined reading of Sections 13 and 14 of the Code of Civil Procedure makes the position of law clear that if a certified copy of a foreign judgment is produced in a court of law directly adjudicating upon any matter between the same parties, the same shall be presumed by a court to have been pronounced by a court of competent jurisdiction unless the contrary is proved.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

• where it has not been pronounced by a Court of competent jurisdiction.
• where it has not been given on the merits of the case.
• where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
• where the proceedings in which the judgment was obtained are opposed to natural justice.
• where it has been obtained by fraud.
• where it sustains a claim founded on a breach of any law in force in India.

So these six conditions are fulfilled by such foreign judgment/decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgments. The very first condition is with regard to Jurisdiction of such foreign court, what it means that both or either of the parties should be residing in the foreign country where from such decree of divorce has been obtained. The second important condition is with regard to merits of the case for divorce, whether those merits considered by the foreign court to arrive on this conclusion or not. Next, a proper notice was served to the other party with regard to such divorce proceedings & the other party was assigned a sufficient time to file his or her defense against the case, hence following the principle of natural justice. There was no fraud or force involved in such case & both the parties either mutually agreed to surrender itself to such foreign court for getting the decree of divorce or neither of them objected to such foreign court proceeding with such matter & deciding it accordingly. Lastly the decree so passed by the foreign court should not be such which may not be executable in India. In your case if you both had agreed for going through such divorce in Spain through their Family Court having similar status as Indian Family Court, such decree of divorce was passed after considering all the merits of your case, both the parties were heard & their statements properly recorded by the foreign court & a proper judgment followed by the decree passed by such foreign court dissolving your marriage, then this will be a valid dissolution of marriage & the decree of divorce executable in India. Now should you get this decree of divorce declared as valid by the family court of India or not. It all depends on you or on the precondition as mentioned in such decree of divorce by the foreign court. Some foreign courts do put a condition in the decree to any such matter to become valid only after the Indian court or competent government authority gives its ascent of approval on such decree. In such a case you have to file an application in the Family court of competent jurisdiction as discussed above in India to get the approval & validation of such decree of divorce. Otherwise it is entirely on both of you to go in for Indian court validating such foreign divorce decree or not, for all purpose you both can proceed for second marriage if such foreign divorce decree was obtained keeping in mind all the prerequisite conditions as mentioned in section13 of the CPC. Try using the Foreign Family Court divorce decree for both these purposes if the Indian government/authorities don’t agree then get this decree validated by Indian