Divorce

Any marriage may, on a Petition presented by either the husband or the wife, be dissolved by a decree of Divorce Lawyer in India by a Court of competent jurisdiction. The Petition for Divorce can be filed under the following legal provision, depending on under which religion, ways and manner, the marriage was solemnised. 

To know more, go on clicking on the following links 

Divorce Related Courts & Fora 

[In Hierarchical Order] 

  • Supreme Court Of India 
  • High Courts Of Various States 
  • District & Session Judges [D&SJ] 
  • Family Courts 
  • Mediators & Concilliators. 

Legislations Governing Divorce 

NRI- Divorce- Enforceability of Foreign Divorce Decree In India- Law Provisions Involved

  • Section 13 of Code of Civil Procedure, 1908– 13. When foreign judgment not conclusive. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1[India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force, and; 
  • S-19– Hindu Marriage Act, 1955– Court to which Petition shall be presented-
  • S-14- Code of Civil Procedure, 1908– Presumption as to foreign judgments- The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.
  • S-13- Code of Civil Procedure, 1908- When foreign judgment not conclusive.- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1 [India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in India- 
  • S-86– Evidence Act, 1872– 
  • S-4- Evidence Act, 1872– 
  • International Laws– Hague convention of 1968 on the recognition of divorce and legal separations- Article 10-Judgment Convention of the European Community.

Judgments: Divorce

  • A Jayachandra vs. Aneel Kaur (2005) 2 SCC 22- AIR 2005 SC 534- Divorce-HMA- S-13(1)(a)- Held, “….legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other.”- Further held, the cruelty should be “grave and weighty” and that too of such a nature that “the petitioner spouse cannot be reasonably expected to live with the other spouse”. – Further held, “…It must be something more serious than “ordinary wear and tear of married life” and “..The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law.” [Full PDF Judgment]
  • D Vs. P Alias R– MAT.APP.(F.C) 161/2017-DelHC-15.12.2017– Divorce-HMA- S-13(1)(a)- what should be the contents of a petition filed under the HM Act- Reference made to the Rule 7 of Delhi High Court Rules, 1967, “7. Contents of petition-In addition to the particulars required to be given under Order VII Rule 1 of the Code and Section 20(1) of the Act, all petitions under Section 9 to 13 shall state: (g) The matrimonial offence or offences alleged or other grounds, upon which the relief is sought, setting out with sufficient particularity the time and places of the acts alleged, and other facts relied upon, but not the evidence by which they are intended to be proved, e.g.: … (iv) ……in the case of cruelty, the specific acts of cruelty and the occasion when and the place where such acts were committed.”- Condonation part very material- Reference made to S-23 of the HMA: “23. Decree in proceedings – (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that:- (a) xxx xxx xxx — (b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and…….” [Full PDF Judgment]
  • Naveen Kohli Vs. Neelu Kohli– Supreme Court Of India Judgment- 21.03.2006- Appeal (Civil) 812 of 2004- AIR 2006 SC 1675- (2006) 4 SCC 558- Divorce- HMA- S- 13(1)(a)- Exercise of Inherent Powers Under Art- 142 of Constitution of India- Dalveer Bhandari, J- Cases Referred- Durga Prasad Tripathy Vs. Arundathi Tripathy (2005) 7 SCC 353- Other Identical Cases- Sanghamitra Ghosh Vs. Kajal Kumar Ghosh (2007) 2 SCC 220- Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511- K. Srinivas Rao Vs. D.A. Deepa (2013) 5 SCC 226 and Sukhendu Das Vs. Rita Mukherjee (2017) 9 SCC 632- SC Judgments where contrary view has been taken, declining to exercise of Inherent Powers Under Art- 142- Chetna Dass Vs. Kamla Devi (2001 4 SCC 250- Vishnu Dutt Sharma Vs. Manju Sharma (2009) 6 SCC 379- Hitesh Bhatnagar Vs. Deepa Bhatnagar (2011) 5 SCC 234; Darshan Gupta Vs. Radhika Gupta (2013) 9 SCC 1- Manish Goel v. Rohini Goel (2010) 4 SCC 393 [Full PDF Judgment].
  • Praveen Mehta vs. Inderjit Mehta– AIR 2002 SC 2582- Held, “21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.” [Full PDF Judgment]
  • Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511- Divorce-HMA- S- 13(1)(a) [Full PDF Judgment]
  • Shobha Rani vs. Madhukar Reddi, (1988) 1 SCC 105- Divorce-HMA- S- 13(1)(a)- Held, “the word ‘cruelty’ has not been defined”- Observed,  “It has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other.”- Further held, “cruelty may be mental or physical, intentional or unintentional‟.- Further observed, where cruelty meted out is mental, firstly, an enquiry must begin as to the nature of the cruel treatment and its impact on the mind of the spouse is required to be ascertained on the basis of the behavior of the parties so to decide as to whether it had caused reasonable apprehension that it would be harmful or injurious for the wronged spouse to live with the other.- Further Held, “Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.” [Full PDF Judgment]
  • V. Bhagat vs. D. Bhagat– (1994) 1 SCC 337- Divorce-HMA- S- 13(1)(a)-  Held, “Mental cruelty in Section 13(1)(a) can broadly be defined as that conduct which inflicts upon the other party, such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.” [Full PDF Judgment]
  • Vinita Saxena vs. Pankaj Pandit, (2006) 3 SCC 778- Divorce-HMA- S- 13(1)(a) [Full PDF Judgment].

Judgments on- NRI- Divorce Cases- Enforceability of Foreign Divorce Decree In India 

  • Harbans Lal Malik Vs. Payal Malik– Crl. Rev. P. No. 253 of 2010- Delhi High Court Judgment- 29.07.2010- Shiv Narayan Dhingra, J- Divorce Case- Section 14 of CPC reads as under: “14. Presumption as to foreign judgments. – The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.”- Section 13 of CPC provides as under:- “13. When foreign judgment not conclusive. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of 1[India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force [Full PDF Judgment]
  • Harmeeta Singh Vs. Rajat Taneja– Supreme Court Of India Judgment-23.01.2003- Vikramajit Sen, J- Courts involved- United States of America, would thus be New Delhi- Observed, In the context of their residing together as husband and wife, the Plaintiff’s stay in the United States of America could well be viewed as transient, temporary and casual- I am quite clear that some of these factors can apply to the husband also in regard to New Delhi, but the fact remains that he could quite conveniently prosecute litigation in New Delhi, whereas it is financially impossible for the Plaintiff (Wife) to do so. Having not received the Spouse Visa she may not even be in a position to enter the United States of America [Full PDF Judgment]. 
  • Pritam Ashok Sadaphule Vs Hima Chugh– Delhi High Court Judgment- 22.04.2013- C.R.P.148 Of 2011- Veena Birbal, J- Divorce Case- A divorce granted by a foreign court on the ground of “irretrievable” breakdown of marriage is not recognised under HMA- a decree of divorce granted by a foreign court is not valid in India if the ground is not recognised by Indian law [Full PDF Judgment].
  • R.   Viswanathan Vs. Rukn-Ul-Mulk Syed Abdul Wajid– Supreme Court Of India Judgment- 04.05.1962- Civil Appeal Nos. 277 to 283 of 1958- 1963 AIR 1= 1963 SCR (3) 22- J C Shah, J & Hidayatullah, J- Succession Issue- Foreign Judgment How far  binding-If  affects      properties outside jurisdiction of foreign Court-Proceedings in foreign Court-Natural  justice,    violation  of- Proof- If “coram      non judice”- Scope  of enquiry- Hindu Law- Joint family  property- Disposal by Will- S-13 of the Code of Civil Procedure, 1908- Held (per Das and Shah, jj.), that the Madras High Court was right  in decreeing the plantiffs’ suit for possession  with respect      to the immovable property in Madras and  dismissing it with respect to the movable property-  The judgment of the Mysore High Court was  not  conclusive between  the parties in the Madras suit with respect to the immovable  properties  in  Madras but  was  conclusive     with respect to the shares of the Company in the State of Madras- A foreign Court has jurisdiction to deliver a judgment in rem which may be enforced or recognised in an Indian  Court provided that the subject matter of the action is  property, whether movable or immovable within the jurisdiction of that Court.- The  Mysore  Courts were not competent   to  give  a binding      judgment  in  respect   of  the immovable  property situate in the State of Madras nor did they in fact give any judgment with respect to immovable property outside Mysore.- But  there is no general rule of private  international   law that  a court can in no  event  exercise  jurisdiction  in relation  to  persons, matters or property outside  its  jurisdiction- Per Hidayatullah, J.-The judgment of the Full Bench of  the Mysore High Court was not coram non Juice and was binding on  the Madras High Court in so far as it negatives the  right, of the coparcenary in the Kolar Cold field business and held it to be separate property of Ramalingam. The question whether the Full Bench of the Mysore High Court had  violated  principles  of  natural  justice during  the hearing of the appeal, could not be considered by the Madras High Court as if it was sitting in an appeal over the Mysore High  Court,  and the refusal of the Mysore  High  Court  to adjourn  the  hearing to enable the appellants to  bring  an outside counsel  did not violate any principle     of  natural justice, as they had already three other counsel briefed  in the appeals [Full PDF Judgment].
  • Satya Vs. Teja Singh- Supreme Court Of India Judgment- 01.10.1974- Criminal Appeal No. 187 of 1970- 1975 AIR  105= 1975 SCC  (1) 120- Y V Chandrachud, J- he decree of divorce passed by the Nevada Court  in U.S.A. could not be recognised in India- The  Judgment  of the Nevada Court was  rendered  in  a civil proceeding and therefore its validity in India must be determined on the terms of S-13 CPC-  The  Judgment  of the Nevada Court was  rendered  in  a civil proceeding and therefore its validity in India must be determined on the terms of S-13 CPC- Under S-13 CPC the foreign Judgment  is open to challenge where it has been obtained by fraud- R. Viswanathan  v. Rukn-vl Mulk, [1963] 3 SCR 22 followed [Full PDF Judgment]. 
  • Veena Kalia vs Dr. Jatinder Nath Kalia– Delhi High Court Judgments- 05.05.1995- AIR 1996 Delhi 54- D Wadhwa, J- res judicata [Full PDF Judgment].
  • Y. Narasimha Rao And Ors. Vs. Y. Venkata Lakshmi And Anr.– Supreme Court Of India Judgment- 09.07.1991- Criminal Appeal No. 385 of 1991.- (1991) 3 SCC 451- P B Sawant, J- Divorce Case- Private    International   Law- Matrimonial dispute- Recognition of foreign judgment- Rules for  recognition  of Foreign matrimonial judgment laid down- Hague convention  of 1968  on  the recognition of divorce and  legal separations- Matrimonial dispute- Foreign judgment-When not conclusive.- Clause (a)-“Court of competent jurisdiction”-Which is.- Clause (b)-Judgment on merits-What is- Clause(c)- Judgment founded on a ground not  recognised by Law of India-Effect of.- Clause(d)-Judgment obtained in proceedings opposed in principles of natural  justice-Effect  of-Principles of natural justice-Scope of.- Clause (e)-`Fraud’-Scope of- Judgment obtained by  fraud- Effect of-  Clause (f)-Judgment founded on a breach of law in force- in India-Effect of.- S-14- Presumption as to foreign judgments- Expression “Certified copy of a foreign  judgment”- Should be read consistent with requirement of Section 86 of  Indian Evidence Act- Indian   Evidence  Act,  1872. Section   41-“Competent court”-Which is- Section- 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and    86- Foreign judgment-Photostat copy-Admissibility of- Private International Law- Matrimonial dispute Recognition of   foreign judgment- Rules for recognition  of foreign  matrimonial judgment laid down-Hague convention  of 1968  on  the recognition of divorce and  legal  separations- Article 10- Judgment Convention of the European Community- Words and phrases “Residence- Meaning of”- Foreign Court- South  Claiborn Avenue, New Orleans, Louisiana Court- Circuit Court St.  Louis Country, Missouri- The decree dissolving the marriage  passed  by the  foreign court is without jurisdiction-  Jurisdiction under the Hindu  Marriage Act cannot be taken out by either of the parties or usurped by the foreign court- The conditions, as provided in the Hindu  Marriage Act a condition precedent for obtaining divorce- the conditions which factor in HMA are- Where the marriage  was  celebrated- where the  parties last resided together- which of the parties resided within the jurisdiction of  that  Court.  Further, irretrievable  breakdown  of  marriage is not one  of the grounds recognised by the Act of dissolution  of  marriage.- Hence, the decree of the divorce passed by the foreign court was  on a  ground  unavailable under  the  Act  which is applicable  to the marriage. Since  with  regard to the jurisdiction of the  forum as well as the ground on which it is  passed the foreign decree in the present case is not  in accordance  with  the  Act  under  which  the  parties were married,  and  the  respondent  had  not  submitted  to the jurisdiction  of the court or consented to its passing,  it cannot be recognised by the courts in this country  and  is therefore, unenforceable.-  Residence does not mean a temporary residence for the purpose of  obtaining a divorce but habitual  residence  or residence  which is intended to be permanent for  future  as well- Civil  Procedure  Code, 1908:  Section  13 [Full PDF Judgment].

Other Related Links 

Kindly CLICK HERE, call our helpline at (+91) 98-712-712-05, or e-mail us at hellocounsel@gmail.com if you wish to talk to a lawyer or are facing any other Legal Issue and want to have Legal Consultations with the empaneled Lawyers at Hello Counsel.

Need A Lawyer? We Can Get You One.

Fill This Form If You Wish To Hire A Lawyer
Know More

Find A Lawyer

Fill This Form If You Wish To Retain A Lawyer
Know More

Retain A Lawyer

Like us? Leave us a review.