A Hindu marriage can be dissolved only under Hindu Law
If you are someone who got married under Hindu Marriage Act and after some time you cease to be India, the law applicable for your divorce would be Hindu law and not the law of the land you are living in. A recent case came to the Bombay High Court which has similar facts and the honorable court observed similar points.
Hearing a petition filed by a man against his wife, both British nationals of Indian origin, a division bench of Justices Vijaya Kapse Tahilramani and V L Achliya held that court outside India is not the competent court of jurisdiction to decide the issue of dissolution of marriage between two Hindus married in India as per the Hindu Vedic rites.
According to the court once the provisions of Hindu Marriage Act apply, they would continue to apply as long as the marriage exists and even for the dissolution of the marriage. The two judge division bench observed that the Hindu marriage gives rise to a bundle of rights and obligations between the parties to the marriage and their progeny as well.
The judgment from the Bombay High Court is also supported by the one passed by the Madras High Court in 2010 wherein hearing the famous divorce case of film actor R Sukanya and her husband R Sridharan, the High Court had observed that when the marriage was solemnized under the Hindu law, the proceedings for divorce also has to be made under the same Act.
Also, following the amended Section 19 of the Act, the wife is now entitled to file a matrimonial petition before a district court in whose territorial jurisdiction she is residing. The honorable court of the view that when the marriage was solemnized under the Hindu law, the proceedings for divorce has also to be made under the said Act and the respondent cannot take any exception to the proceedings in India under the provisions of the Hindu Marriage Act merely on account of his domicile being outside India.
Women can file divorce anywhere in India
Earlier in 2010, the Madras High Court gave a great respite to women in India when it held that the family court in India had jurisdiction to try matrimonial litigation even if the husband is a citizen of a foreign country and not an ordinary resident of India. Their decision was based on the amended Section 19 of the Hindu Marriage Act.
The honorable court held that Section 19 of the Hindu Marriage Act extended to outside India and the fact that the husband is residing outside the territory does not prevent the wife from applying before the local designated court to redress her grievances. If the husband does not attend the proceedings, the family court can grant divorce ex parte.
Top two grounds on which you can file a divorce
There are various grounds for divorce in India mentioned under the Hindu Marriage Act, 1955 which you may mention while filing for divorce and given the evidence you provide to the court, you are given the relief.
Cruelty: This is the most used ground for divorces in India and that’s why it has been discussed first. Any affected spouse can file a divorce case. However, if it’s wife, she can file for domestic violence case under the Domestic Violence Act, 2005 which has special provision for such crime. It can work as evidence that there is violence and cruelty on the part of the husband. Cruelty can be mental and physical injury that causes danger to life, limb and health.
Mental torture is also a kind of cruelty which is taken into consideration by the judges when they are deciding the divorce cases. A lot of judgments wherein the parties have been divorce show that issues like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act, etc. are cruelty.
Adultery: After cruelty, adultery is the second most used ground by the partners to move for divorce. Thou shall not have sex with other than your spouse has been kept in the Hindu Marriage Act as well and any act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. The law considers adultery a criminal offence and substantial proofs are required to establish when it is being used as a ground for divorce by the other party. However, as an amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce, things have become a lot easier now.
Some other grounds for divorce
Desertion, conversion to other religion, mental disorder, leprosy, venereal disease, renunciation, not heard alive, etc. are some other grounds that work as a ground for divorce.
