You Cannot Grant Divorce Just Like That

Even though it might appear to some people that obtaining a divorce very easy, the process is easier said than done. This blog shall emphasize on the possible difficulties a couple can encounter during a divorce proceeding. Proceedings involved in divorce can be really difficult and it is always advisable that in order to smoothly go through you divorce proceedings in a city like Coimbatore, hire the best divorce lawyers in Coimbatore.

In the case of Kailash Deo v. Smt. Shanti[i], the Rajasthan High Court refused to grant a divorce decree to a couple who was living separately, under different roofs for the past twenty years. Under Section 13 of the Hindu Marriage Act, 1955, there are 9 main grounds on the basis of which, a fault divorce can be claimed. However, the burden of successfully proving the existence of the one or more of those grounds lies on the spouse intending to claim the divorce. Proving all the essential ingredients is no cake’s walk and if the opposite spouse is able to prove certain actions on the part of the petitioner spouse, the entire action of the latter can possibly fail. It is therefore very important to beware of one’s actions.

In the above-mentioned case, the court rejected the petition for divorce because a condition-precedent for desertion is that the party must have left the matrimonial without any substantial cause. Merely leaving the matrimonial home to live at another place shall not entitle the estranged spouse to claim divorce on the grounds of desertion. The husband’s plea for irretrievable breakdown of marriage was also rejected by the High Court. It opined that the Apex Court’s ruling in the matter of Anil Kumar Jain was deliberated under the authority delegated upon it by virtue of Article 142 of the Constitution of India, 1950. Under the said provisions, neither the lower courts, nor the High Court can grant divorce on the ground of irretrievable breakdown of marriage since it is not a statutory ground under Section 13 of the Hindu Marriage Act, 1955.

Even for other statutory grounds, an express mention of which has been made under Section 13 of the Hindu Marriage Act, 1955, the party seeking the divorce should not be guilty of either of the following grounds:

1.Condonation- If the other party is guilty of cruelty and the party praying for divorce has

done any act, either express or implied, indicating that he/she has condoned the guilt of the partner at fault, the first party’s action for divorce shall fail.

Some higher courts have held in their judgments that filing of a suit under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights amounts to condoning the guilt of desertion. Also, cruelty must not be such as to be a minor act of annoyance but must touch a certain pitch of sseverity. [1]

But a well-established principle under jurisprudence of matrimony is that condonation by the spouse does is not equivalent to condonation by the President under Article 72 of the Constitution. The guilt is only obscured and not obliterated. Moreover, the condonation of matrimonial offence is always on the condition that the guilty partner shall not engage in the same or similar offence in future. [2]

2.Connivance- The petitioner should not have connived/consented to the commission of such an act by the other spouse.

3.Collusion- The couple must not have colluded together to commit the offence. Such a collusion makes a mockery of the justice system, and there is no remedy under court of law for such acts of mala fide intentions.

4.Provocation- The party seeking divorce should not have done any act to provoke the other party for doing the guilt.

Even for mutual consent divorces, the process only appears to be hassle free. Problems like withdrawal of consent by one party, may always arise at any time. Also, even the courts first try to resolve the matters by trying to preserve the holy ties of matrimony. Even the legislation mandates them to first refer to the parties the option of amicable settlement in Lok Adalat. It is only if the court is sure beyond any reasonable doubts of any possibilities of conciliation that if grants the divorce decree.

[1] Naveen Kohli v. Meelu Kohli, AIR 2006 SC 1675.

[2] Avinash Eknath Nikalje v. Leela Avinash Nikalje, AIR 2003 Bom 244.

[i] Kailash Deo v. Smt. Shanti, AIR 2012 Raj 103.