Here we will discuss Divorce by mutual consent under Parsi Law
Read here: What is mutual consent divorce?
The provision of marriage & divorce for Parsis in India is governed by Parsi Marriage and Divorce Act, 1936
Section 32B of Parsi Marriage and Divorce Act 1936 talks about Divorce by mutual consent.
Section 32B provides that 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.
Such petition can be presented on the grounds provided therein.
Section 32B provides following grounds on which a petition for dissolution of marriage can be presented in court:
(1) Both husband and wife has been living separately for a period one year or more, and
(2) They have not been able to live together, and
(3) They have mutually agreed that the marriage should be dissolved. Consent should not have been obtained by force or fraud.
The above are the explicit conditions which are provided under section 32B of Parsi Marriage and Divorce Act 1936.
All the above grounds are mandatory before a petition for dissolution of marriage is present in court.
If any of the above grounds are missing from the petition for dissolution of marriage, the Court may reject such petition.
Besides the grounds provided in 32B of Parsi Marriage and Divorce Act 1936, there are some other conditions. These conditions court may weigh before granting decree of divorce by mutual consent. These are:
(1) Marriage is solemnised as per provisions of Parsi Marriage and Divorce Act 1936.
(2) Parties to marriage i.e. husband and wife must have settled all their dispute or differences, if any
They must have entered in full and final understanding. Nothing should be left, which may be a reason of future contentions or litigation between the parties to marriage.
If any permanent alimony is to be given, the wife must have received all amount of alimony, or if the alimony is to be given in future dates or monthly the husband and wife must have entered into a written understanding in that respect.
(3) If Parties to marriage i.e. husband and wife has any child, they must have entered into an understanding as to how child to be raised. There must be a clear understanding of custody and finance of child education to be met.
Followings are steps of Mutual divorce process under Section 32B as in Parsi Marriage and Divorce Act 1936
First – Parties to marriage i.e. husband and wife filing the joint petition for divorce by mutual consent in the court of law.
Second – Court hears both the parties. Court makes inquiries for its satisfaction as to the marriage was solemnised and that the averments made in the petition are true.
Third – One being satisfied and taking statement of the parties, Court passes a decree of dissolution of marriage.
Unlike Hindu Marriage Act 1955 and Special Marriage Act 1955 there is no provision under section 32B of Parsi Marriage and Divorce Act 1936 for the cooling off period minimum of Six months.
Read here : Section 32B as in Parsi Marriage and Divorce Act 1936
So, a mutual consent divorce under Parsi laws can be presented as per the provisions of section 32B of Parsi Marriage and Divorce Act 1936.
It is noteworthy that parties approaching for divorce with mutual consent must satisfy grounds given under section 32B and other conditions as discussed above.
Related read:
What time does it take for mutual divorce in Indian courts?
Can wife claim maintenance after mutual divorce?
Mutual divorce laws – Mutual divorce laws in India
Divorce by mutual consent under the Special Marriage Act
Divorce by mutual consent in Christian Law
Divorce by mutual consent under Parsi Law
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Here we will discuss Divorce by mutual consent in Christian Law or Mutual consent divorce under Divorce Act 1869
The divorce laws for Christian is provided under Section 10 of Divorce Act 1869.
Section 10A talks about Divorce by mutual consent.
Section 10A provides that 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.
Such petition can be presented on the grounds provided therein.
Section 10A provides following grounds on which a petition for dissolution of marriage can be presented in court:
(1) Both husband and wife have been living separately for a period two years or more, and
(2) They have not been able to live together, and
(3) They have mutually agreed that the marriage should be dissolved.
The above are the explicit conditions which are provided under section 10A of Divorce Act 1869. All the above grounds are mandatory before a petition for dissolution of marriage is present in court.
If any of the above grounds are missing from the petition for dissolution of marriage, the Court may reject such petition.
Besides the grounds provided in Section 10A of Divorce Act 1869, there are some other conditions. These conditions court may weigh before granting decree of divorce by mutual consent. These are:
(1) Marriage is solemnised as per Christian Laws.
(2) Parties to marriage i.e. husband and wife must have settled all their dispute or differences, if any
They must have entered in full and final understanding. Nothing should be left, which may be a reason of future contentions or litigation between the parties to marriage.
If any permanent alimony is to be given, the wife must have received all amount of alimony, or if the alimony is to be given in future dates or monthly the husband and wife must have entered into a written understanding in that respect.
(3) If Parties to marriage i.e. husband and wife has any child, they must have entered into an understanding as to how child to be raised. There must be a clear understanding of custody and finance of child education to be met.
Followings are steps of Mutual divorce process under Section 10A as in Divorce Act 1869
First – Parties to marriage i.e. husband and wife filing the joint petition for divorce by mutual consent in the court of law.
Second – Court makes inquires and takes statement of Parties.
Third – Court passes and order. Gives parties cooling off period minimum of six months.
Fourth – Parties present a second motion. This second motion must be presented after six months of court’s first order and before the expiry of eighteen months.
Fifth – Court hears both the parties. Court makes inquiries for its satisfaction as to the marriage was solemnised and that the averments made in the petition are true.
Sixth – One being satisfied and taking statement of the parties, Court passes a decree of dissolution of marriage.
Read here : Section 10A as in Divorce Act 1869
So, a mutual consent divorce under Christian laws can be presented as per the provisions of section 10A of Divorce Act 1869
It is noteworthy that parties approaching for divorce with mutual consent must satisfy grounds given under section 10A and other conditions as discussed above.
Related read:
What time does it take for mutual divorce in Indian courts?
Can wife claim maintenance after mutual divorce?
Mutual divorce laws – Mutual divorce laws in India
Divorce by mutual consent under the Special Marriage Act
Divorce by mutual consent in Hindu Law
Divorce by mutual consent under Parsi Law
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Here we will discuss Divorce by mutual consent under Special Marriage Act.
Read here : What is mutual consent divorce ?
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Section 28 of Special Marriage Act 1954 talks about Divorce by mutual consent.
Section 28 provides that 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.
Such petition can be presented on the grounds provided therein.
Read here : To whom Special Marriage Act, 1954 is applicable
Section 28 provides following grounds on which a petition for dissolution of marriage can be presented in court:
(1) Both husband and wife has been living separately for a period one year or more, and
(2) They have not been able to live together, and
(3) They have mutually agreed that the marriage should be dissolved.
The above are the explicit conditions which are provided under section 28 of Special Marriage Act. All the above grounds are mandatory before a petition for dissolution of marriage is present in court.
If any of the above grounds are missing from the petition for dissolution of marriage, the Court may reject such petition.
Other conditions of Divorce by mutual consent
Besides the grounds provided in Section 28 of Special Marriage act, there are some other conditions. These conditions court may weigh before granting decree of divorce by mutual consent. These are:
(1) Marriage is solemnised as per provisions of Special Marriage Act.
(2) Parties to marriage i.e. husband and wife must have settled all their dispute or differences, if any
They must have entered in full and final understanding. Nothing should be left, which may be a reason of future contentions or litigation between the parties to marriage.
If any permanent alimony is to be given, the wife must have received all amount of alimony, or if the alimony is to be given in future dates or monthly the husband and wife must have entered into a written understanding in that respect.
(3) If Parties to marriage i.e. husband and wife has any child, they must have entered into an understanding as to how child to be raised. There must be a clear understanding of custody and finance of child education to be met.
Followings are steps of Divorce by mutual consent process under Section 28 as in Special Marriage Act 1954
First – Parties to marriage i.e. husband and wife filing the joint petition for divorce by mutual consent in the court of law.
Second – Court makes inquires and takes statement of Parties.
Third – Court passes and order. Gives parties cooling off period minimum of six months.
Fourth – Parties present a second motion. This second motion must be presented after six months of court’s first order and before the expiry of eighteen months.
Fifth – Court hears both the parties. Court makes inquiries for its satisfaction as to the marriage was solemnised and that the averments made in the petition are true.
Sixth – One being satisfied and taking statement of the parties, Court passes a decree of dissolution of marriage.
Read here : Section 28 as in Special Marriage Act 1954
So, a Divorce by mutual consent under Special Marriage Act can be presented as per the provisions of section 28 of Special Marriage Act 1954.
It is noteworthy that parties approaching for divorce with mutual consent must satisfy grounds given under section 28 and other conditions as discussed above.
Related read :
What time does it take for mutual divorce in Indian courts?
Can wife claim maintenance after mutual divorce?
Mutual divorce laws – Mutual divorce laws in India
Divorce by mutual consent under the Special Marriage Act
Divorce by mutual consent in Christian Law
Divorce by mutual consent under Parsi Law
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Here we will discuss the question of to whom the Special Marriage Act 1954 Applies, and also the History of the Special Marriage Act in the later part of this Law Article.
The preamble of the Special Marriage Act 1954 provides this :
An Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce.
Special Marriage Act, Applicable to the marriage solemnised as per the provisions of sections 4 to 14 of Special Marriage Act, 1954
In Pranav Kumar Mishra & ANR vs. Govt of NCT of Delhi & ANR (WP (C) No. 748 / 2009, Mr. Justice S Ravindra Bhat overserved that : Special Marriage Act was enacted to enable a special form of marriage for any Indian national, professing different faiths, or desiring a civil form of marriage
In Smt. Seema vs. Ashwani Kumar Transfer Petition (Civil) No. 291 of 2005, the division bench of Justice Arijit Pasayat and S.H. Kapadia observed that Special Marriage Act, 1954 which applies to Indian citizens irrespective of religion each marriage is registered by the Marriage Officer specially appointed for the purpose.
In the case of Smt. Sufiya Sultana vs. the State of UP (Habeas Corpus No. 16907 of 2020 the Lucknow bench of UP High Court observed that: Two Indians living wheresoever, and whether professing the same or different religion (or no religion at all), could solemnise their marriage provided that they fulfilled conditions provided under Section 4 of the said Act (Special Marriage Act)
Thus provisions of the Special Marriage Act are applicable to:
1. Any Indian national who marries under the provisions of Section 4 to 14 of the Special Marriage Act
2. Any Indian national, professing different faiths, or desiring a civil form of marriage can marry under this Act.
3. Every Indian citizen irrespective of religion which marriage is registered by the Marriage Officer specially appointed for the purpose.
4. Two Indians living wheresoever, and whether professing the same or different religions (or no religion at all), they can marry under the Special Marriage Act, and provisions of the special marriage act is applicable on them.
A Bill was introduced by Sir Henry Maine for the first time proposing a law for inter-cast and inter-religion marriages in India.
The proposed Bill permitted any two citizens of India to marry under the same instead of their respective personal laws. The Bill was vehemently opposed in the legislature and was vastly modified before it was enacted and enforced on 22nd March 1872 as the Special Marriage Act, 1872 (Act of 1872).
The law, as passed, provided that any two persons after declaring complete severance from their respective faith can marry under the Act of 1872.
The Act of 1872 was amended in the year 1923 and thereafter it became permissible for the individuals to marry under the same without renouncing their religion
With the independence of India and coming into force of a Constitution in January, 1950, the Parliament proceeded to revisit the personal laws and laws with regard to marriages and thus along with other enactments, it also passed the Special Marriage Act, 1954 (Act of 1954).
Under the Act of 1954 any two Indians living wheresoever, and whether professing the same or different religions (or no religion at all), could solemnize their marriage provided that they fulfilled the conditions provided under Section 4 of the said Act.
Act of 1954 also provided that an existing marriage, solemnized under whatever law, could be registered under the new law, if the same fulfilled the conditions provided therein.
After registration, the marriage stood covered under the provisions of Act of 1954 and not under the personal law wherein it was initially solemnized.
The Act of 1954 also prescribes rights of persons concerned with regard to separation, divorce and inheritance etc. including judicial procedures for enforcement of the same and thus came in force a complete code with regard to civil marriages in India.
The Act of 1954 was also amended from time to time as per the changing needs of society.
The procedure of publishing a notice and inviting objections from public at large, as was provided under Act of 1872 was, thus, also adopted by the Act of 1954 with minor variations.
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Applicability of Hindu Marriage Act 1955
To whom Hindu Marriage Act 1955 Applies?
As per section 2 of the Hindu Marriage Act 1955, this law / act applies to:
(1) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(2) to any person who is a Buddhist, Jaina or Sikh by religion, and
(3) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
This Act does not apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section 2.
See: section 2 for applicability of the Hindu Marriage Act, 1955
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Updated on 05.08.2023
Gift Deed new Notification by Uttar Pradesh Government
Date: 03.08.2023, Number-18/2023/995/94-एस0आर0-2-2023-700(29)/2021
Highlights :
1. To whom Gift deed can be done
Son, Daughter, Father, Mother, Husband, Wife, Daughter in law (Bahu), Own Brother, Wife of Brother in case of brother’s death, Own sister, Husband of sister in case of Sister’s death, Son of son, Daughter of Daughter.
2. If any property is obtained through Gift, this notification is not applicable is gift is being done within 5 years of previous gift registration.
3. Not applicable to the Gift by any Firm, Company, Trust or organisation.
4. Not applicable to the Gift to any Firm, Company, Trust or organisation.
5. Applicable to only Agricultural and residential property. Not applicable to any Industrial, Commercial or Institutional property.
Read notification below:
UTTAR PRADESH SHASAN
STAMP EVAM NIBANDHAN ANUBHAG-2
In pursuance of provisions of clause (3) of Article 348 of the Constitution of India, the
Governor is pleased to order the publication of the following English translation of
Government notification no. 18/2023/995/94-S.R-2-2023-700(29)2021 dated, 03 August,
2023.
Notification
Order
No. 18/2023/995/94-S.R-2-2023-700(29)2021
Lucknow, Dated, 03 August, 2023
In exercise of the powers under clause (a) of sub-section (1) of section 9 of the Indian
Stamp Act, 1899 (Act no. 2 of 1899) as amended in its application to Uttar Pradesh, the
Governor, until further orders, with effect from the date of the publication of this
notification in the Gazette, by giving remission, in the stamp duty chargeable on gift deed
under Article 33 of Schedule 1-B of the said Act of 1899 , is pleased to fix the maximum
stamp duty as set out in column-2 of the table below on the gift deed as set out in column-1
of the table below:-
Table
Column-1 Column-2
Description of the instrument Maximum stamp duty
Such gift deed, whereby the donor, transfers immovable
property in favour of family members, such as son, daughter,
father, mother, husband, wife, daughter-in-law (wife of son),
real brother (his wife in case of death real brother), real sister,
son-in-law (husband of daughter), son/daughter of
son/daughter.
Rupees 5000.00
1-If any Property received by the instrument of a Gift Deed, is being gifted by the receiver
within the time period of five years from the date of registration, the gift of the said
property will not be covered under this notification.
2-This notification covers the Gift of property, given by real person to a real person only. The
provisions of this notification will not be effective for the Donor or receiver of the gift of a
fictitious person like Firm, Company, and Trust & Institution etc.
3-Only the gift of residential and agricultural property will be covered under this
notification. Gift of the properties of other kind like Firm, Company, Trust & Institution etc.
will not fall within the provisions of this notification.
By order
Leena Johri
Pramukh Sachiv.
Now there will be no hefty stamp duty on gift deeds payable in the state of Uttar Pradesh.
Earlier existing hefty Stamp duty on gift deeds will not be payable in the state of Uttar Pradesh when the gift is being made to the family members (i.e. father, mother, wife, son, daughter on law, son-in-law, own brother, own sister, grand-daughter or grand-son.
Uttar Pradesh Government has come up with a notification doing away with the stamp duty payable on the registration of Gifts.
The notification is issued by the Stamp and Registration division of Govt. of Uttar Pradesh being No. -8/2022/566/94-एस0आर0-2-2022-700(29)/2021 dated 18 June, 2022
Now maximum stamp duty payable in respect of the registration of Gift deed is Rs. 5,000/- (Rupees Five Thousand Only)
Earlier a stamp duty of approximate 7 % was payable on the registration of the Gift deed of immovable property.
This notification is however valid only for six months with effect from the date of publication.
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Gift deed: Legal consultation, Drafting and registration
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Here we will discuss Divorce by mutual consent under Hindu Law or Mutual consent divorce under Hindu Marriage Act 1955
Mutual means ‘two or more people feeling the same emotion or doing the same thing to each other or for each other.
Mutual consent means ‘as agreed by the people involved.
Divorce means ‘the legal dissolution of a marriage by a court or other competent body’ or legally dissolving one’s marriage.
In a marriage, people involved are husband and wife. So, once they feel or agree to legally dissolve their marriage they can do so as per law.
There are laws prescribed for the dissolution of marriage by mutual consent in India. Different provisions of law may be applicable depending upon the religion professed by the husband or wife or how they married.
We provide comprehensive legal services to our clients for ‘Divorce by Mutual Consent’. Clients can call on the following number to seek an appointment for a consultation. Consultation is chargeable.
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The divorce law for Hindus is provided under Section 13 of the Hindu Marriage Act 1955.
Section 13B talks about Divorce by mutual consent. Section 13B was inserted in Hindu Marriage Act by Amendment Act 1976
Section 13B provides that a petition for dissolution of marriage by a decree of divorce by mutual consent may be presented in the district court by both husband and wife together.
Such a petition can be presented on the grounds provided in Section 13B of HMA.
Section 13B provides the following grounds on which a petition for dissolution of marriage by way of divorce by mutual consent can be presented in court:
(1) Both husband and wife have been living separately for a period of one year or more, and
(2) They have not been able to live together, and
(3) They have mutually agreed that the marriage should be dissolved.
The above are the explicit conditions which are provided under section 13B of the Hindu Marriage Act. All the above grounds are mandatory before a petition for dissolution of marriage is presented in court.
If any of the above grounds are missing in the petition for dissolution of marriage, the Court may reject such a petition.
Besides the grounds provided in Section 13B of the Hindu Marriage Act, there are some other conditions. These conditions the court may weigh before granting a decree of divorce by mutual consent. These are:
(1) Marriage is solemnised as per Hindu Laws.
(2) Parties to marriage i.e. husband and wife must have settled all their dispute or differences if any
They must have entered in full and final understanding. Nothing should be left, which may be a reason for future contentions or litigation between the parties to the marriage.
If any permanent alimony is to be given, the wife must have received all amount of alimony, or if the alimony is to be given on future dates, the husband and wife must have entered into a written understanding to that respect.
(3) If Parties to marriage i.e. husband and wife have any child, they must have entered into an understanding as to how the child to be raised. There must be a clear understanding of custody and how to finance child education.
The followings are Divorce by mutual consent process under Section 13B as in the Hindu Marriage Act 1955
First – Parties to marriage i.e. husband and wife filing a joint petition for divorce by mutual consent in the court of law.
Second – Court makes inquires and takes statements of the Parties.
Third – Court passes an order. Gives parties a cooling-off period minimum of six months.
Fourth – Parties present a second motion. This second motion must be presented after six months of the court’s first order and before the expiry of eighteen months.
Fifth – The court hears both parties. The court makes inquiries for its satisfaction as to whether the marriage was solemnised and whether the averments made in the petition are true.
Sixth – Once being satisfied and taking the statements of the parties, Court passes a decree of dissolution of marriage.
The question of where to file a divorce by mutual consent is also important.
As per section 19 of the Hindu Marriage Act (HMA) of 1955, a petition for divorce by mutual consent can be filed in the district court where :
1. The marriage was solemnised; or
2. Parties to marriage last resided together, or
3. Where the wife is residing on the date of the filing of the petition, or
4. Where one petitioner resides in India and the other is outside India, where the petitioner resides.
We provide comprehensive legal services for divorce by mutual consent. Our services, among others, include the followings :
Helping and assisting our clients to reach an amicable solution.
Advising and assisting our clients to reach a settlement agreement.
Filing of the first motion before the Court.
Preparing and filing of second motion before the court
Concluding the divorce by mutual consent process in an intended manner.
Read here: Section 13B as in Hindu Marriage Act 1955
So, a mutual consent divorce under Hindu laws can be presented as per the provisions of section 13B of the Hindu Marriage Act 1955
It is noteworthy that parties approaching for divorce with mutual consent must satisfy grounds given under section 13B and other conditions as discussed above.
Related read:
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When a husband is discharged or acquitted under a criminal case filed by the wife under Section 498A of the Indian Penal Code, 1860 will it be a ground for divorce? Will it be a ground on which the husband can file a petition for divorce or dissolution of marriage under a court of law?
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As per section 498A of IPC, if the husband or relative of the husband of a woman subjects her to cruelty, he/they shall be punished with imprisonment which may extend to 3 (three) years and shall also be liable to a fine.
Section 498A IPC reads as under:
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.
Now the question is whether after being acquitted or discharged under a case under section 498A, can this acquittal or discharge be a ground of divorce?
Hon’ble Supreme court in Rani Narasima Sastry vs. Rani Suneela Rani in Civil Appeal No. 8871 of 2019 (Arising out of SLC (Civil) No. 1981 of 2019) answered this question.
Hon’ble Supreme Court held : When a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband.
Appellant has made a ground for grant of decree of dissolution of marriage on the ground as mentioned in Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
Thus, the Hon’ble Supreme Court held that when wife filed a criminal case under section 498A labelling false accusation ultimately resulting in discharge or acquittal of husband, the same can be treated as cruelty meted out by the wife / woman. And, this shall be a ground of divorce under section 13(1)(i-a) of the Hindu Marriage Act, 1955.
Facts of the case
An FIR Criminal No.148/2007 was filed, in which charge-sheet No. 672 of 2007 was submitted against the husband / appellant and his sister- in-law on the basis of which charge under Section 498-A of Indian Penal Code (IPC) was framed and the husband / appellant was tried by the Court of Metropolitan Magistrate, Cyberabad.
The Trial court held the appellant not guilty of offence under section 498A IPC and he was acquitted.
The Husband / appellant thereafter filed a divorce petition in the Court of Principal Senior Civil Judge, R.R. District, L.B. Nagar under Section 13(1)(i-a) praying for dissolution of the marriage with the respondent. One of the grounds on which petition was filed was cruelty.
The Trial Court decided against the husband appellant and held that appellant failed to prove that he was treated with cruelty by the wife.
Supreme Court’s decision
Hon’ble Court held :
In the present case the prosecution is launched by the respondent (wife) against the appellant (husband) under section 498-A IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal.
In the prosecution under 498-A IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established.
It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty.
But when a person undergoes a trial in which he is acquitted of the allegation of offence under 498-A IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband.
We conclude that appellant has made a ground for grant of decree of dissolution of marriage on the ground as mentioned in Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
Thus acquittal or discharge under a case under section 498A Indian Penal Code, 1860 is a valid ground on the basis of which a mental cruelty can be claim and this ground a divorce petition can filed in court of law for dissolution of marriage.
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There has been confusion prevailing on unnatural sex or unnatural offences being a ground for divorce after the Hon’ble Supreme Court’s judgement on section 377 of the Indian Penal code, 1860
Section 377 of the Indian Penal Code, 1860 criminalised voluntarily carnal intercourse against the order of nature with any man, woman or animal until, the Hon’ble Supreme Court of India in the case of ‘Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice’ diluted the effect and decriminalised carnal intercourse between two consenting individuals.
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Now the question here is whether unnatural sex or unnatural offences are ground for divorce? Can a petition for divorce be filed in the court of law alleging unnatural sex or the respondent being guilty of natural offences?
Section 13(2) gives exclusive right to a wife to present a petition for the dissolution of her marriage by a decree of divorce on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
Thus a wife can present petition for divorce against her husband, if husband after the marriage, been found guilty of :
– Rape,
– Sodomy, or
– Bestiality
Section 27(1A) of Special Marriage Act 1954 also gives right to a wife to present petition for dissolution of marriage by divorce on the ground that her husband has, since the solemnization of the marriage, been guilty of:
– Rape,
– Sodomy; or
– Bestiality;
Section 10(2) Divorce Act 1869 which is applicable to persons professing the Christian religion, also gives right to a wife to present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of:
– Rape,
– Sodomy; or
– Bestiality
Section 32(d) of Parsi Marriage and Divorce Act 1936 which is applicable on Parsi community also provides ground of divorce if the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence.
Provided however that the suit must be filed within two years after the plaintiff came to know of the above fact.
On 6 September 2018 the Hon’ble Supreme Court of India passed judgement in Navtej Singh Johar case and ruled that application of section 377 to consensual sex between two adults is unconstitutional.
Thus Hon’ble Supreme Court only diluted the applicability of section 377 IPC to the consensual carnal intercourse but that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.
In the wordings of Hon’ble Supreme Court in Para 21 of the Navtej Singh Johar Judgement
21(i) In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.
It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.
21(ii) The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re- opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.
21(iii) The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercouse against minors, and acts of beastiality.
The Hon’ble Division Bench of Allahabad High Court held that:
“act of sodomy and unnatural sex is also a marital wrong and is a ground for seeking divorce” [Para 21]
The Hon’ble Court also quoted and decisions in Grace Jayamani vs E.P.Peter, AIR 1982 Kant. 46 and Bini T. John vs Saji Kuruvila, AIR 1997 Ker. 217, and observed that in both these judgments, it has been held that sexual intercourse against the order of the nature or sodomy or unnatural sex or oral sex is a marital wrong and a ground for dissolution of marriage.
Hon’ble Allahabad High Court’s Judgement in Sanjeev Gupta vs Ritu Gupta First Appeal No. 296 of 2018 held that :
“Unnatural sex, sodomy, oral sex and sex against the order of the nature, against the wishes of a women or wife or anybody is not only a criminal offence but also a marital wrong and amounts to cruelty which is a good ground for dissolution of marriage. Any such thing which brings the wife to indignity and causes physical and mental agony and pain is cruelty. Forcible sex, unnatural or natural, is an illegal intrusion in the privacy of the wife and amounts to cruelty against her.”
The Hon’ble Court also quoted and decisions in Bini T. John vs Saji Kuruvila, AIR 1997 Ker. 217 wherein it was held that
“Sex plays an important role in matrimonial life. Therefore conduct of one among the parties towards the other in the matter of sex is an important factor in the married life. Insistence of unnatural sex, continued compulsion for oral sex, sex through anus causing pain and physical injury to make the wife to concede to such unnatural sex will certainly amount to cruelty.”
In Para 21 of its judgement the Hon’ble Court held that :
21. In addition to being a criminal offence, act of sodomy and unnatural sex is also a marital wrong and is a ground for seeking divorce. It also amounts to cruelty which is another ground of divorce. Section 13 of the Hindu Marriage Act provides as follows:
“13. Divorce(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(I-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or”
The language of all the laws governing the filing of the petition for dissolution of the divorce on the ground of commission of unnatural sex is plain and clear. A person’s conduct of committing unnatural sex must be proven by a court of law.
Thus, it is a ground of dissolution of marriage by way of decree of divorce against a person who is proven guilty under section 377 IPC or for a unnatural sex or offences under Indian Laws.
Under Hindu Marriage Act, Special Marriage Act, Divorce Act, a wife has been given exclusive right to present such a petition against her husband. However under Parsi Marriage and Divorce Act 1936, there is no such classification.
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When a husband or a wife has withdrawn from the society of other without any reason, the aggrieved party can apply to the court of for the restitution of conjugal rights.
The Court on being satisfied of the truth of statement made and consideration there is no legal ground why the application should not be granted, grant decree of restitution of conjugal rights
The above is as per section 9 of Hindu Marriage Act, 1955
Section 9 reads as under :
9. Restitution of conjugal right.—When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal from the society
Now question is when even after the passing of decree or order of restitution of their conjugal rights, there is not restitution, what will happen in such a situation? What is the remedy in such a situation?
Will this be a ground for divorce?
Section 13(1A)(ii) of Hindu Marriage Act, 1995 answers this question.
As per section 13(1A)(ii) of Hindu Marriage Act, 1955 either party to a marriage, may present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
section 13(1A)(ii) reads as under:
13(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—
(i)…..; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Thus, as per section 13(1A)(ii) no restitution of conjugal rights after passing of decree of restitution is a ground of divorce
As per the plain reading of the section 13(1A)(ii) it can be ascertained that it is either party to marriage, who can file a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Thus no restitution of conjugal rights even after passing of decree or order for restitution of conjugal rights by the court, is a ground of divorce.
Either party to marriage can file a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
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