Marriage And Divorce

विवाह विच्छेद - Divorce

बदलते हुए सामाजिक परिवेश में विधिक विवाह विच्छेद एक आम बात होती जा रही है | इसके बावजूद विवाह विच्छेद सामाजिक परिवेश में आंशिक तोर पर ही स्वीकार किया जाता है | भारत का विवाह विच्छेद कानून / विधिक प्रक्रिया में यदि पति ओर पत्नी विवाह विच्छेद के लिए कोर्ट मैं आता है तो उसकी अर्जी को विवाह विच्छेद अधिनियम में दिये गये आधार पर स्वीकार कर लिया जाता है | कोर्ट में विवाह विच्छेद की अर्जी स्वीकार करने ओर उसकी सुनवाई के लिए हिन्दू विवाह अधिनियम १९५५ के अनुसार कुछ आधार वर्णित किया गया है ओर इसके अलावा सुप्रीम कोर्ट के द्वारा दिये गये निर्णयों को आधार मानते हुए फॅमिली कोर्ट अपना निर्णय सुनाती  है |

Do You want Divorce - आप विवाह विच्छेद चाहते हैं ?

विवाह विच्छेद

क- Divorce - विवाह विच्छेद- के आधार { हिन्दू विवाह ऐक्ट १९५५ } अनुसार : -

१– Adultery- व्यभिचार   

२- Cruelty- हिंसा  

३- Deserted- एक् दूसरे से अलग रहना- [ २ साल से ऊपर ]

४– Conversion to another Religion- धर्म परिवर्तन  

५– Renounced the world संन्यास  

६- Untraceable - गुमशुदगी- [ ७ साल पूरा होने पर ]  

७- Incurable Unsound Mind- गंभीर शारीरिक या मानसिक रोग  

८- Virulent and incurable Leprosy- आसाध्य कुष्ठ रोग  

९- Communicable Venereal Disease - प्रेषणीय योण रोग - नपुंसकता


इसके अलावा केवल पत्नी के अर्जी पर :-

१ –  Bigamy -पति अगर पहले से विवाह कर रखा हो { पहली पत्नि के रहते }

२ - Husband is guilty of Rape, Sodomy and Bestiality- पति अगर रपे, सोडोमी ओर वाहशीता के

    केस मैं दोषी हो |

३ – After Decree or Order partners living separate for one year-  मैन्ट्नन्स डिक्री ऑर् ऑर्डर के

    बाद भी एक् साल तक दूर रहना या दोनों के बीच कोई संबंध नहीं बनना |

४ – If Marriage was before 15 years of age and she repudiates it, but before the age of 18

    years she can claim- अगर पत्नी की शादी १५ साल से पहले हुई हो ओर इस शादी को परित्याग

    करती हो, लेकिन इसके लिए १८ साल के आयु तक ही कोर्ट जा सकती है |


ख- सहमति विच्छेद

अगर पति ओर पत्नी दोनों सहमति से एक्-दूसरे से विवाह विच्छेद करना चाहते हैं तो कानूनी रूप से प्रक्रिया आसान होता है |


For Judicial Separation :-- न्यायिक विच्छेद 

1. Refusal to do Marital obligations

2. Imposing unchastity

3. Gravely indecent behavior

4. False allegations against each other

5. Committing unnatural offence subject to wife and husband

6. Compelling immoral practices, Eg. Flesh trading


7.  Withdrawal from Society.

8. Not fulfilling Sexual desire to spouse Or 

9. Dissatisfying with excess sexual desire 

Women’s Rights in India

Are you not married ? you should know it.

Or if yes, then you should definitely know your legal rights; read it. 

Most of the women / married women in India are ignorant or having no knowledge of their legal rights .

if you are a male, then knowing the basic laws for women’s rights in India which may bring some trouble against you is crucial. 

Family court cases are often a toll over the parties involved, since family is the foundation of any person born in Indian households. Discussion over laws for married women’s rights in India is underway.

What are the Rights of a Woman After Marriage?

People who know the basic laws for women’s rights in India must be aware of the fact that Indian laws are much supportive to women. In this blog, law on women’s rights in India after marriage has been brought under light. Sometimes, women simply wish to confine themselves within the walls constructed in the name of rules for married women. They do so until one day things become no longer right and find unfavorable  in their marital world. Then what happens and what may happen becomes a subject of personal laws of the parties which can legally be understood through Family Lawyers. However, there are certain secular and religion neutral laws as well which support women's legal rights in India regardless of their religion and customs prevailing traditionally.

Laws for Married Women’s Rights in India :-

Right to Reside in Marital Home

The legal #rights of a #wife over husband also include the right to reside in the matrimonial home. Regardless of whether the #property belongs to the husband, in-laws or whether it is a rented property, a woman has the right to reside there. Access or claim of marital home during separation can not be taken away, not even during ongoing domestic violence proceedings. The same was explained and elaborated by the hon’ble Supreme Court while interpreting provisions of Protection of Women from Domestic Violence Act, 2005 in a 2020 case law. Whereas Right to Streedhan has been categorically defined in many of the judgements by apex court, that

" All the gifts which a woman receives before, during and after her marriage and during childbirth constitute ‘Streedhan’ under the Hindu laws.

The Supreme Court has made the position of Streedhan clear and unambiguous in Pratibha Kumari case, excluding any scope for husband’s joint status. 

Also, the property distribution after divorce does not include any division of Streedhan.

Right to Maintenance by Husband

#Maintenance is the financial support which one spouse gives to another during marriage. 

A woman financially dependent upon her husband for her basic day to day life expenses can seek maintenance as per the #Hindu Marriage Act, 1955 as well as the Code of #Criminal Procedure, 1973 allows for the same even #Muslim women may prefer to file maintenance petition before court under sect.125 of Cr.p.c.

 Even after divorce and before a second marriage, a woman has the right to maintenance. 

The rights of a woman in divorce in India include alimony rights which can be a one time payment or be distributed on a monthly basis, as decided by the court. 

Whereas it is being noted that the provision of maintenance is not gender specific but gender neutral. Even maintenance to husband may be given by the wife if the husband is dependent upon his wife for survival.

Right to Live With Dignity and Respect

Not only the laws for married women’s rights in India, but also the fundamental right guaranteed under Article 21 of the Constitution of India ensures a person’s right to live with dignity. Although the definition of dignity may vary among persons.

Right to Committed Relationship

A married couple shares a commitment towards the spouse. If there is a yes to ‘Can a married woman live with another man legally’ or vice versa, the concept of marriage will go baseless. Marriage in India gives another spouse the right to company of one another and also the right to cohabit with one another exclusively. Only divorce and legal separation can give an escape from a committed relationship.

Right to Succession in Parental Property

The Supreme Court has time and again upheld a married daughter’s right in her parental property under the Hindu Succession Act, 1956. The court also batted with the words ‘Once a daughter, always a daughter.’[3] Before 2005, the laws related to Hindu Succession did not included a daughter as a coparcener for inheritance of ancestral property. However, 2005 amendment to Hindu Succession Act, 1956 granted married and unmarried daughters equal rights as a son.

Rights against Violence

Domestic violence is a problem in Indian households which underwent a rise during lockdown due to COVID-19. The laws in India grant for protective rights of a married woman in India. For violence in marriage, domestic violence lawyers must be contacted without any delay. Apart from violence and cruelty as a ground for divorce or civil remedy, cruelty by husband or relatives is also punishable under the Penal Code[4].

Right to have the Body

A woman has an absolute right over her own body. She has the right to her own health, right to abortion[5]. Although it may be noted that conjugal rights are part of a marriage and there is no clarity over long debated topic of marital rape. However, the right to body also includes the right to deny unnatural sex against the husband.

Right to Move out of Marriage

To enter a marital relation, consent of both the spouses is paramount. Both the spouses enjoy certain rights against each other as a husband and wife. However, moving out of such marriage when cohabitation is no longer bliss is the right for both. It may be much appreciated mutual consent divorce, or contested divorce over certain grounds if one of the spouses does not agree to divorce. 

The law also grants #Muslim #woman’s #right to #divorce in particular scenarios. Since laws under Muslim laws are a bit tricky, lawyers for Muslim laws should be consulted with.

Can a Court Force Husband to Stay With Wife?

After marriage, both the spouses have conjugal rights against each other, i.e. right to stay in each other’s company.[6] In case one spouse leaves the company of a spouse and stays separately, they can knock the court’s door to bring the spouse back. The court shall hear the facts of the case, consider the reasoning of why one spouse left the company of another. The court may order restitution of conjugal rights.

However, the court can not force the husband to stay with wife or vice versa. If a husband does not wish to live with his wife, he may seek mutual divorce, contested divorce if the wife does not agree or even an application for legal separation if interim separation is sought for.

Can a Wife Live Separately Without Divorce?

Yes, if a couple is not yet certain about divorce but wish to stay separately without ending the marriage, they can go for judicial separation through court. Unlike divorce which can not usually be granted before expiry of 1 year of marriage, legal separation can be granted at any time after marriage.

Married Women’s Property Rights in India

There are certain aspects to be dealt with while discussing women's legal rights in India regarding property. It may be noted that marriage has no effect diluting married women’s property rights in India. If it is ancestral property, she is the coparcener just like a son. 

If it is her parental property, she may be a valid successor in her parent’s property. Coming to the husband’s property, she has no right in the acquired or ancestral property of her husband during his life. However, after his death, a woman is entitled to succession rights as per the law. In case of joint property which she has invested in and the spouses have decided for divorce, she has right to shares proportional to the percentage she has invested in the same.

Legal Rights of a Wife Over Husband - 

After discussing all the women’s legal rights in India which blossom after marriage, the contention that laws are slightly tilted towards women can not be denied. It is so because rules for married women in Indian society often include leaving behind a woman’s own identity when she becomes a wife. However, if not anyone else then a woman should take her own stand and empower herself for all the right reasons.

1. Satish Chander Ajuha v. Sneha Ahuja (2020), SC SLP (Civil) 2483.

2. Pratibha Rani vs. Suraj Kumar, AIR 1985 SC 628

3. Savita Samvedi (Ms) & Anr. v. Union of India & Ors., 1996 (2) SCC 380

4. Section 498A of the Indian Penal Code, 1860.

5. Right up to 20 weeks (or 24 weeks in certain cases) of pregnancy as per the Medical Termination of Pregnancy Act, 1994.

6.Section 9 of Hindu Marriage Act, 1955.

7. Inheritance Rights Of Grandchildren In India

8. Inheritance Rights Of Grandchildren In India

9. Land Partition Rules in India

10. Laws for Maintenance and Welfare of Parents

11. Laws for Maintenance and Welfare of Parents

12. No Income and Duty to Maintain Wife: Law for Husband

13. Mutual Consent Divorce in India

14. Husband may also claim Maintenance from wife , if she earns good salary and husband has no income.

Now Mutual Divorce may be claimed even before One year limitation defined in law -which is mandatory.

Bombay High Court quashes Section 498A IPC case filed by judge against her husband, in-laws for cruelty:-

The same act was also allegedly committed by her in-laws later the same day.This effectively obstructed her from discharging her duties as a judge that day, the complaint claimed. Thereafter, the wife (The Judicial officer) filed a complaint with the police on July 9, 2023 against the husband and in-laws and an FIR was registered under Sections 186, 353 (criminal force to deter public servant), 498A (cruelty) and 506 (criminal intimidation) of the IPC. 

The period of offence in the FIR was from October 1, 2018 to June 7, 2023. 

Aggrieved by the FIR, the husband and the in-laws moved the High Court seeking quashing of the same. 

The Court did not find any evidence that the husband and the in-laws had not allowed the wife to sit in the morning session to discharge her duties as a judge. 

The Court noted that even during the afternoon session, the relatives did not enter the court hall , but were waiting in the chamber and the judicial officer voluntarily rose from the court and came to the chamber. 

Observed  that “There does not appear to be any obstruction to the wife in discharge of her public function, but on the contrary, she discharged her official duties on that day and, therefore, the provisions are not attracted. The act of retiring to the chamber is a voluntary act of the informant on being told by her peon,” the Court noted.  T

he Court also did not find any force being used by the husband to deter or create fear in the wife’s mind from discharging her duty as judicial officer. The High Court further found that differences and bickering between the complainant and the in-laws' family including the husband would not amount to an offence under Section 498A of the IPC; 

With these observations, the Court Quashed the FIR against the husband and the in-laws. The Bombay High Court recently quashed a case of cruelty filed by a judicial officer against her husband and his family members under Section 498A of the Indian Penal Code (IPC).