Types of divorce petitions in India:-

Divorce by mutual consent

When both husband and wife obtain divorce then it is called divorce by mutual consent. This is the most convenient and less time consuming way of getting divorce.

Divorce by mutual consent is taken under Hindu Marriage Act, 1955, The Special Marriage Act, 1954 and Indian Divorce Act, 1869. Section 13B of Hindu Marriage Act, Section 28 of Special Marriage Act and Section 10A of The Indian Divorce Act specifies the provisions of divorce by mutual consent. Following are the provisions:

Petition for dissolution of marriage is to be presented before the District court by both parties on the grounds that:

they have been living separately for a period of one year or more;

they have not been able to live together;

they have mutually agreed that marriage should be dissolved.

If parties are given 6 to 18 months which is known as cooling off phase and if they do not withdraw the petition before 18 months then court on being satisfied will pass a decree of divorce. In Davinder Singh Narula v. Meenakshi Nangia,[i] Supreme Court held that if circumstances so warrant the cooling period of 6 months can be waived off.

Before passing the decree, the court will inquire about the authenticity of the petition filed by the parties to divorce.

Contested Divorce

There are some rights and duties in matrimonial ties. All the Acts have certain grounds on which the divorce can be filed. The husband or wife can file a petition for divorce under The Hindu Marriage Act, 1955, The Special Marriage Act, 1954, Indian Divorce Act, 1869 and The Dissolution of Muslim Marriages Act, 1939.

The Hindu Marriage Act, 1955:

Section 13 lays down grounds on which divorce petition can be filed by husband or wife. Following are the grounds-

Adultery- The first ground is adultery. If husband or wife had sexual intercourse with a person other than his or her spouse then, the divorce petition can be filed.

Cruelty- If the party to marriage performs any act of cruelty, then his/her spouse can file for divorce. Here, the term ‘cruelty’ includes both mental and physical cruelty.

Desertion- It means to move out of matrimonial home and desert the spouse. If husband or wife desert his/her spouse for two or more years, then it becomes a ground for divorce.

Conversion- If any Hindu husband or wife converts to another religion then divorce petition can be filed against him/her.

Unsoundness of mind- If the spouse is suffering from any incurable mental disorder to an extent that it is reasonably not expected to live with him/her, it becomes a ground for divorce. The term “mental disorder” is described in first explanation to Section 13 as “mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia”.

Communicable disease- Incurable form of leprosy and veneral disease is also a ground for divorce.

Renunciation from the world- Renunciation from the world is a ground for divorce. If any person renounce the world, then his/her spouse can file a petition for divorce.

Presumption of death- Divorce petition can be filed against any person whose whereabouts are not known for seven years.

Judicial separation- If there has been no cohabitation between the parties for 1 year or upwards who were living separately under the decree of judicial separation.

Restitution of conjugal rights- When husband/wife obtains the decree of conjugal rights and there is no restitution of conjugal rights for the period of 1 year or more then divorce petition can be filed.

Ex parte” refers to a legal proceeding that takes place on behalf of only one party. Although you don’t need your spouse to participate in an ex parte divorce, it will be valid in every state as long as you follow certain rules.

If you’ve decided to divorce, you’re probably eager to separate from your spouse and take the necessary steps to end your marriage and begin your new life. But if your spouse has moved out of state, you may be concerned that this will cause a major delay in your case. Take heart—your spouse can’t prevent you from getting divorced by moving or actively trying to dodge a divorce complaint. You can take advantage of ex parte divorce procedures if your spouse isn’t cooperating or is especially hard to find

Marriage in Hindu Law is treated as a sacrament but it happens sometimes that a marriage is nulled due to some reasonable causes. Annulment of marriage is a legal procedure which is meant to declare a marriage null or void. A marriage is declared null or void if certain legal requirements were not fulfilled at the time of marriage due to any reasons. The marriage is considered never existed in the eyes of law in the absence of the fulfillment of certain legal requirements for making a marriage certified. This procedure is called annulment of marriage. It is different from divorce. Whereas divorce dissolves a marriage that was existed, annulment disqualifies a marriage that was never existed at all.

Grounds of annulment

There are specific grounds of annulment of marriage which can vary sometimes, but are generally limited to deceit, blood relationship, bigamy and mental ineptitude as mentioned below:

Either spouse was already married when the marriage took place;

Either spouse was not at an age of marriage as per law;

Either spouse was under the influence of drugs or alcohol at the time of the marriage;

Either spouse was mentally retarded or ill at the time of the marriage;

If the marriage was consented consent on the basis of any fraud or force;

Either spouse was physically incompetent to be married;

If the marriage is proscribed by law due to the relationship between both;

Criminals who have already sentenced to a term of life imprisonment may not marry.

In the case of Concealment of an important fact (e.g. one of the parties concealed previous criminal record, drug addiction or a sexually transmitted disease)

To putting in simple words, annulment of marriage is a way of putting an end a never-existed matrimonial bond that is not valid due to one or many of above-mentioned reasons.

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 wilful 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 to meet such demand.]