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How to Get a Quick Divorce

Based on the Hindu Marriage Act, 1955; filing a petition for a 'mutual divorce' would be appropriate if both you and your spouse are having to deal with marital issues and it has gotten to a point that both of you are looking for legal separation. You as a spouse can file for divorce even if the other spouse is unwilling to be divorced - this is known as, 'Contested Divorce'.What is the meaning of Divorce by Mutual Consent?According to the Hindu Marriage Act, 1955 both the spouses have the right to dissolve their marriage through a decree of divorce on several grounds specifically itemized in Section 13.Section 28 of the Special Marriage Act, 1954 as well as Section 10A of the Divorce Act, 1869, permits divorce by mutual consent as well.The necessary conditions under section 13B of the Hindu Marriage Act are as follows:(i) The separation between husband and wife for at least a year or more.(ii) It's impossible for both spouses to live together. (iii) Both the spouses are of the opinion and in fact, have mutually agreed that the marriage cannot be salvaged at all and therefore ought to be dissolved. Under these circumstances,  filing a Divorce by Mutual consent would be appropriate.According to the Indian legal system, with the filing of a divorce petition, a divorce procedure fundamentally begins.The place for filing a divorce petition:1. The court in the location of the last residence of the couple before they got separated would have jurisdiction. 2. The court in the location of solemnization of the marriage would also have jurisdiction.3. The court in the location of the wife’s current residence would have jurisdiction as well.   Based on The Hindu Marriage Act, 1955 both spouses have the right of dissolving the marriage if there are marital issues and either spouse can initiate divorce proceedingsThe starting point of divorce proceedings in its entirety in India begins with the divorce petition filed by the concerned parties related to the divorce process and notice of the petition served to the other party.Based on the Hindu Marriage Act, 1955; a 'mutual divorce' petition can be filed if both the spouses are going through marital issues and want to part ways legally.Anyone of the spouses could file for divorce even if the other spouse is unwilling to be divorced - this is known as 'Contested Divorce'.Step by step procedure in case of Mutual DivorceMutual Divorce Procedure to be followed Step 1: Divorce Petition to file At the outset, a petition for dissolution of marriage has to be presented to the family court by both spouses for a decree of divorce on the basis of not being able to stay together and therefore both spouses have consented to dissolve the marriage or they have been separated for at least a year or more.This joint petition has to be signed by both parties.Step 2: Court appearance and petition inspection Both spouses would have to make an appearance before the family court after the petition has been filed and at the same time the spouses would have to present their counsels/lawyers. Upon critical observation of the petition along with all supporting documents by the court, the court may even try and reconcile the marital issues of the spouses. If that fails then the matter proceeds to the next level for even further follow-ups. Step 3: Decree for a recording of statements on oathOnce the court analyses the petition and it's satisfactory, it may decree the statements of the parties be recorded under oath. Step 4: Between the passing of the first and the second motion a period of six months elapsesWith the statements of the parties to the suit already recorded, the court passes a decree on the first motion. Thereafter, both the parties to the divorce suit get a period of six months prior to filing the second motion. At most, it would take 18 months from the presentation date of the divorce petition in the family court. Step 5: Second Motion and the Final petition hearing The penultimate step is that once the parties have made a mutual decision to pursue the proceedings and be there for the second motion, final hearings may ensue which includes recording of statement of parties in front of the Family Court.The Supreme Court recently has maintained that the period of 6 months allocation to the parties can be negated at the decision of the court. In other words, it’s the court’s discretion to override the six months’ time period. Hence, the parties genuinely intending to reconcile their marital issues including alimony, child custody or any other outstanding issues, it can be waived off in these six months.Even if the court’s opinion is that the longer the waiting period the parties would suffer more, in this case also the six months can be waived off.Step 6: Divorce DecreeWhen the divorce is mutual, the consent is from both parties and therefore contentious matters related to alimony, child custody, maintenance, property, and so on are all taken care of or have been agreed upon by both parties. Therefore, a complete and absolute agreement between the parties is needed for finally deciding on dissolving the marriage.After hearing the parties if the court is satisfied that what has been alleged in the petition are in fact true and that isn’t any possibility of the parties reconciling and cohabiting at all, the decree of divorce gets the court’s seal of approval, and the divorce is final. This blog is all about the divorce procedure explained step by step. Anyone reading this blog would be able to clearly understand the divorce process.If you’re filing for a divorce and haven’t got a clue as to how long it might take, or what might be the steps or procedures involved. Get in touch with Vidhikarya who would find the expert divorce lawyers for you.

Posted By

Avik Chakravorty

16 hours ago

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A Rape Covered Under The Veil Of Marriage

A Rape Covered Under The Veil Of Marriage By Ashish Ranjan Samal, Advocate Orissa High Court 1. Introduction Whenever Mahira, who is 25 years old, has a fight or a heated argument with her husband, he takes it out on her in the bed. She is merely a toy for him whom he can use differently every night. He forces himself on her, every single day, even during her periods. Their relationship has never been about 'consent' and 'equality'. Similarly, many women are subjected to dowry harassment and brutal rape which involves inflictions with torch lights leading to serious injuries. These are just a few examples out of the plethora of such cases. These women are all married and they have to go through such kind of violence and forced intercourse. Is a wife merely a tool to vent out sexual and emotional tension and frustration? Marital rape is an oxymoron. Yet marriage and rape have an unfortunate continued relationship in India. Both rape and marriage are considered ways of gaining control over a woman's body since time immemorial. This was also exemplified in the infamous Imrana rape case[1] where back in 2005, 28-year-old Imrana, a mother of five, was raped by her 69-year-old father-in-law. And the Panchayat (local council) declared her marriage to her husband as void since she had had sex with her father-in-law and by virtue of her physical relationship with her father-in-law she was also told to treat her own husband as her son. The dictionary meaning of the word "rape" is "ravishing or violation of a woman" which in its generic term "Raptus" implies violent theft, applied to both property and person. Rape is the word for forced or coerced sex. It is when the woman has not had the opportunity to freely give consent or she is unable to give consent. Marital rape is the non-consensual sex committed by the spouse. It is also known as partner rape or rape in marriage. 2. Indirect laws addressing Marital Rape Marriage in India is considered a holy sacrament between a husband and his wife. When a man marries a woman, it not only brings implied consent of sexual intercourse but also the man's duty to give due respect to the dignity of his wife. When the husband commits unwanted forceful intercourse with his wife, he breaks the confidence of his wife and breaches her trust in him. Lately, Section 498A of the Indian Penal Code i.e. the anti-dowry law is voluminously misused by the women and a considerable number of rape cases reported each year are also false. Proving marital rape and taking bedrooms to courtrooms in such cases is not only a difficult but also a dangerous idea.[2] As per the Indian penal legislation i.e., Section 375 of the Indian Penal Code- "Sexual intercourse" or "sexual acts" by a man with his own wife, the wife not being under fifteen years of age, is not rape." [3] Exception to Section 375[4] of IPC provides immunity to the husband who rapes his wife and declares marital rape as legal and does not consider it as rape. This shows that the concept of marital rape goes beyond the virtues of Article 21[5] of the Constitution of India i.e. right to live with human dignity. Marital rape prima facie violates Article 14[6] of the Constitution as it creates a classification between married and unmarried women and denies equal protection of the criminal legislation to the former.[7] Though marital rape violates basic human rights that are attributed to every human being under the purview of these Articles there are not many remedies available to the victim. Therefore, in India, marital rape can come under cruelty clauses of section 498A of IPC. Cruelty covers physical and mental harassment. Punishment is imprisonment for a maximum period of three years with fine. The remedies for cruelty under the Indian Penal Code take years to reach an outcome. In view of this, victims remain victims. They either give in, or give up. Another remedy available to the wife is under the Protection of Women from Domestic Violence Act, 2005 which deals with protection of women from physical and mental cruelties of all forms, including sexual abuse. Family Courts as well as Magistrates provide counseling to the husband under domestic violence laws. But unfortunately, the provisions of this Act provide civil remedies only and a wife who wants to see her husband (rapist) punished finds no solution to that. Instead she is the one who struggles and suffers especially if she has children or is financially dependent or is without family support. The only lasting solution to the problem of marital rape is legal separation or annulment of the marriage itself. A legally separated wife can only file a complaint for rape against her husband under Section 376A[8] of IPC.[9] 3. Startling Statistics Marital rape is both common and an un-reported crime. A study conducted by the Joint Women Programme - an NGO, found that one out of seven married women had been raped by their husbands at least once. They frequently do not report these rapes because the law does not support them.[10] According to the UN Population Fund, more than two-thirds of married women in India, aged 15 to 49 years, have been beaten, or forced to provide sex.[11] Bertrand Russell in his book Marriage and Morals saw marriage as one of the most conventional forms of livelihood for a woman where the frequency of undesired intercourse she has to give in to is in all probabilities higher than that endured by a prostitute. [12] ?till the problem of marital rape has received very little attention from the activists, criminal justice system and the society at large. The concept of rape in marriage got recognition only after 1970s. The right of a husband to have sexual intercourse with his wife was considered to be one of the most natural implications of the contract of marriage.[13] International Instruments Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women.[14] Also the unanimous resolution at the UN conference in Beijing, September 1995 guarantees every woman the right to say no to sex as she wishes, specifically wives. In accordance with these Declarations and Conferences many countries have either enacted marital rape laws, repealed marital rape exceptions or have laws that do not distinguish between marital rape and ordinary rape. These States include Albania, Algeria, Australia (in 1991), Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, Mauritius (in 2007), New Zealand (under Crimes Act, 1961), Norway, the Philippines, Scotland, South Africa, Sweden, Taiwan, Tunisia, the United Kingdom (in 1991), the United States, and recently, Indonesia, Thailand (in 2007), Turkey (in 2005).[15] In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition. Lord Keith, compared a marriage of the modern times with a partnership of equals where the wife is no longer the subservient chattel of the husband.[16] 4. Rethinking of the existing law In India, the 42nd Law Commission Report (1972) suggested that marital rape should be criminalized. However, actions were not taken to that effect and the 84th Report (1980) was not in favour of the criminalization. In the year 1996 the Supreme Court of India in Bodhisattwa Gautam v. Subhra Chakraborty[17] classified rape as a crime against the basic human rights and a violation of the victim's most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. However, the Apex Court negated this very pronouncement by not recognizing marital rape.[18] This shows that the Indian courts as well as the law makers have made recommendations and pointed out the need for penalising marital rape several times. Still there has not been any substantial change in this field. 5. The gray areas There are a lot of loopholes in the Indian legal system when it comes to marital rape. It not only provides immunity to the rapist husband but is also silent with regard to a lot of questions. For example, there are no provisions to deal with the cases of rape which are committed by the husband in collusion with a third person or if rape is committed by both the husband and a third person. Whether the third person will only be punished for rape, or whether the husband, would escape punishment for marital rape owing to his relationship with the victim are some of the many questions which the law has failed to adequately answer.[19]  The honourable High Court of Delhi has rightly pointed out in the case of Meena & Anr. v. State & Anr.[20] on 17 October, 2012 where the Court observed that if a girl who is not the wife of the man but is below 16 years of age (15 as per the Criminal Law Amendment 2013) then even the consensual intercourse between the two amounts to rape. But if the girl is above 16 years and is wife of the man, then even the forced intercourse is not rape. This provision in the Indian Penal Code, 1860 is a specific illustration which shows that the legislature has legitimized the concept of child marriage by keeping a lower age of consent for marital intercourse. 6. The deep scars left from the crime Marital rape causes both mental as well as physical trauma which has severe and long-lasting consequences on women. The immediate physical and gynaecological effects of marital rape include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue, vomiting, miscarriages, stillbirths, bladder infections. It may also lead to infertility and HIV. Rape in marriage has a lot of long-lasting psychological consequences also. It causes anxiety, shock, intense fear, depression, sleep problems, suicidal ideation, etc. [21] 7. Conclusion The concept of marital rape is an oxymoron. It is a rape under the veil of marriage. Marriage is not a licence for sex. Just because a woman says "I do" to marriage it does not mean that she has said "I do" to sex whenever, wherever, and however her husband wants it. Sex is not an implied 'right' under the contract of marriage rather it is a clear communication of love, mutual consent, caring and respect between husband and wife. A recent incident of gang rape and murder of a student on a bus in Delhi in 2012 led to a mass outcry. This outrage took place when the girl was raped by strangers. Had she been raped by her husband, would it have the same effect? If rape is the violation of human rights then it would continue to be a violation whether committed by her husband or a stranger. The dignity of women either married or unmarried is alike. She cannot be considered as a property or the subservient chattel of the husband In today's scenario we require generation of awareness along with judicial awakenings. What really needs to be done is to teach both boys and men to not rape and educate them to view women as valuable partners in every aspect of life.

Posted By

ASHISH SAMAL

1 week ago

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  • What is Tort?
  • What is Tort Law?
  • What are the Important Aspects Torts?
  • What are the General Defences to Torts?
  • What are the Types of Torts?

What is Tort?


The origin of the word tort is the latin word ‘tortum’ which means ‘to twist’. Tort does not have a standard universal definition but the generic idea is that tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. Not all civil wrongs are torts.

What is Tort Law?


Tort law in India is a relatively new common law development supplemented by codifying statutes including statutes governing damages. While India generally follows the UK approach, there are certain differences which may indicate judicial activism, hence creating controversy. Tort is breach of some duty independent of contract which has caused damage to the plaintiff giving rise to civil cause of action and for which remedy is available. If there is no remedy it cannot be called a tort because the essence of tort is to give remedy to the person who has suffered injury.

Important aspects of Law of Torts:


For an act to constitute a tort, it must satisfy certain conditions, there must be some act or omission on the part of the defendant, which in turn should have resulted in legal damage (injuria), i.e., violation of a legal right vested in the plaintiff.

The relevant factor for commission of tort is the presence of a ‘legal damage’ which need not be causing actual tangible damage, whereas, an act which is causing some substantial damage but not a legal damage would not constitute tort. For example, in cases of trespass, the person trespassing may not damage the property he entered but would still constitute a legal injury, whereas, in case a competitor due to whatever legal reasons may cause massive losses to another person but would still not have committed a Tortious act.

Torts don’t necessarily stem from Statutes only and can stem from common law principles. Torts in India stem like the other common law jurisdictions stems from both statute and common law.

General Defences to Torts:


There are certain defences which are of a generic nature and can be availed in most of the tort cases. They are the following-

  • Volenti non fit injuria – this refers to voluntary assumption of risk. When someone suffers harm with their own consent then it acts as a complete defence for the defendant. However, mere knowledge of the risk(scienti non fit injuria) does not imply consent, for example, if a driver is forced by his employer to drive a vicious horse and he drives that under protest, then he will be entitled to claim such compensation in case an injury is caused to him(Bowater v. Rawley Regis Corporation). Doctrine does not imply to rescue cases though.
  • Plaintiff the wrongdoer – No action arises from an immoral cause. If the harm suffered by the plaintiff is fundamentally linked with the wrong act of himself then the defendant may use it as a defence. For example, if the plaintiff drives an overloaded truck despite strict instructions not to, and eventually suffers harm due to the bridge breaking, then the defendant has a defence available. However, plaintiff is not disabled from recovering in tort unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction.
  • Inevitable Accident – An unforeseeable & unavoidable accident in spite of reasonable care taken on defendant’s part acts as a defence. Inevitable refers to a situation wherein it was not avoidable by the precautions which a reasonable man would have implemented.
  • Act of God – It is similar to the idea of “Inevitable Accident”, but the forces here are forces of God/Nature, i.e., floods, storms, etc. It acts as a defence to the idea of “Strict Liability”.(summary of ‘strict liability’ is below)
  • Private Defence – Law permits use of reasonable force to protect one’s person or property. However there should be presence of an ‘imminent threat’.
  • Mistake – Mistake, whether of fact or law, is generally not a defence for torts. However, in torts requiring malice as an element, the liability does not arise when the defendant acts under an honest and mistaken belief.
  • Necessity – An act causing damage if done under necessity to prevent greater evil is not actionable even though harm was caused intentionally. For example, throwing goods overboard a ship to lighten it for saving the ship and persons on board the ship.
  • Statutory Authority – When an act is done under the authority of an Act, it is a complete defence and the injured party has no remedy except for claiming such compensation as may have been provided by the statute.

Types of Tort Law


There are three primary categories of tort law- intentional torts, negligent torts and strict liability torts. In India the concept of absolute liability also exists which shall be spoken of later.

  • Intentional torts are those torts which are committed with the intention of undergoing an activity which would end up in causing injuria (violation of legal right) of someone for example trespassing or battery(harmful or offensive contact with another person).
  • Negligent torts are those torts that are born out of negligence on part of person and not because of the intention to cause a legal harm to someone, for example, if someone breaks a cup in anger part of which end up hurting someone else. Then there are strict liability torts, sometimes seen as product liability torts, these are torts when there is an imposition of liability on a party even in the absence of finding of a fault like a tortious intent or negligence, for example the production head of a company being strictly liable even for a fault committed by a labourer working under him.
  • The concept of strict liability was discussed in the case of Rylands v. Fletcher. In this case, the defendant had constructed a water reservoir which his hired engineers ended up building on top of an abandoned coal mine, Rylands (the defendant) was unaware of this fact. Eventually the reservoir broke down and ended up harming Fletcher’s coal mines for which a lawsuit was subsequently filed. Rylands was held “strictly liable” and it was observed that a person who for his own purposes keeps on his land anything with the potential of causing mischief will be prima facie answerable for the damage which happens as a natural consequence of its escape.

In India, there is a unique concept known as the principle of “Absolute liability”. In the case of ‘M.C. Mehta v. Union of India’ there was leakage of oleum gas which caused harm to the people exposed to the gas leak. It was in Court’s mind that an year ago Bhopal Gas Tragedy had happened hence Court gave a judgement befitting of a crime of a nature which has the potential to cause such great tragedy. The ratio followed here was similar to the concept of Strict Liability with the addition of ‘Absolute Liability’ not being subjected to any of the exceptions or defences of the rule of Strict Liability.

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