Example: The parties are staying in Hyderabad, but their marriage is registered in Bangalore. Where should the divorce case to be filed – in Bangalore or Hyderabad?

Yes, the parties can file for a divorce before a court where the marriage was registered i.e, Bangalore. They can also file for a divorce before a court where the wife resides, even if the marriage was not solemnised there. As per the Indian legal system, a person can file a petition seeking a divorce under the jurisdiction of the following three courts:

  • The court located at the place where the couple lived together last
  • The court located at the place where the marriage was registered or solemnised
  • The court located at the place of the wife’s residence.

Section 19 of the Hindu Marriage Act, 1955, lays down the courts to which the divorce petition shall be presented. It also allows for the petitioner to file a petition in a district court of his/her own place of residence if the respondent, at the time of filing the petition, is residing outside the jurisdiction of Indian courts, or has been presumed to be dead as he/she has not been heard from for a period of at least 7 years, in order to protect spouses from legal obligations of marital bonds, in the case of desertion.

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The principle legal documents that regulate marriages in India are The Special Marriage Act of 1954 1 and the Hindu Marriage Act of 1955. 2 The latter as the name suggests deals in specific with marriages compliant under Hindu customs. Hence both establish grounds for making marriages legal and also the procedures required to dissolve one.

The question this article aims to address is, however, more specific in nature, that being the reliefs available to a wife who has discovered that the husband is homosexual after the completion of their marriage. While homosexuality laws have become more liberal in recent years, the legal injury aspect of a woman with a homosexual husband remains intact, and relief or justice deliverance becomes essential.

Legal Context of the Issue

While there exist no specific provisions of law to address the said issue, there exist certain provisions in the Hindu Marriages Act, 1955 that are of broad nature and is hence applicable to issues like this. Section 13 of the Hindu Marriages Act deals with “cruelty” as a ground for divorce. It further includes sub-factors such as mental torture, physical cruelty, desertion, non-co-operation etc.

Hence, a persisting conduct of the husband that causes severe disturbance or annoyance to the wife becomes valid grounds for dissolving a marriage and for claiming relief. Syllogistically, a homosexual man will always have certain behavioural traits that will inevitably cause injury to the wife. This includes constant denial of intercourse or lack of trust without any appropriate reason.

Case Law Findings

In the case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511, 3 a bench of three judges laid down some ground rules for constituting mental cruelty. Some of the relevant findings include –

  1. Acute mental disturbances, suffering and agony that makes it impossible for the married parties to live together qualifies as grounds for mental cruelty.
  2. Mere coldness or lack of affection in itself can’t be grounds for cruelty but constant rudeness and attacks that affect a party to the point of being intolerable qualifies as grounds for cruelty.
  3. The conduct of the guilty party must be more than simple selfishness, rudeness or jealousy and simply causing emotional disturbance cannot solely be considered as a ground for granting a divorce.
  4. While considering the petition for divorce, the married life of the parties is to be reviewed as a whole and the decision of the court should not be based on few isolated incidents, as only prolonged and consistent wrongdoings will be considered as cruelty.
  5. If any of the parties undertake certain medical procedures without adequate medical reason such as a wife’s abortion or a husband’s operation without the consent of the spouse it can in some cases qualify as cruelty
  6. A unilateral decision of declining to undertake intercourse for prolonged periods of time without any adequate or sufficient reason may amount to mental cruelty.

The sixth condition in the list is what in legal grounds can be used as a relief mechanism for a wife who has discovered that her husband is gay post marriage.

In current Indian matrimonial legislation, there exists no direct reliefs or tenets of law to protect wives who have been deceived of their husband’s sexual orientation at the time of marriage. However, existing legal provisions in the Hindu Marriage Act provide some relief to address the issue and ensure a fair divorce is granted.

Hence, it is expected that future amendments to the Act will probably incorporate the current inadequacy of such circumstances being addressed and ensure it is not just applicable to the Hindu Marriage Act but also the Special Marriage Act to ensure that justice is delivered irrespective of religion.

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Matrimonial matters are embodiments of delicate human and emotional relationship. It is built with mutual regard, respect and trust of both spouses. Naturally, relations like these are bound to comply with social and cultural norms as well. This is where the matrimonial law comes into play in the form of acts, statutes and other regulators of social norms.

The breakdown of the said mutual regard, trust and respect evidently results in divorce. However, the aim of this study is not only to look into the legislation surrounding divorce but to specifically target cruelty and mental torture as the core reason resulting in divorce.

Cruelty as a ground for Divorce

To understand cruelty as a reason causing the breakdown of a marriage, it is necessary to understand the term “cruelty” in itself. This is important as every matrimonial misconduct that causes physical or mental annoyance might not amount to “cruelty” in legal terms. Minor or trivial disputes that cause irritation such as quarrels hence might not always amount to cruelty. Generally, only those acts which are capable of severe mental or physical trauma are considered “cruelty”.

What amounts to “cruelty”

For an act to amount to “cruelty” it must be highly severe or grave nature, so much so that it is not possible for the aggrieved party to reasonably live with their spouse in a dignified manner. It is definitely difficult to lay down a specific or exact legal definition regarding terms like these, and hence in many matrimonial cases, it is often left up to the conscience of the court handling the matter to decide the severity of the perpetrator’s actions.

Existing Legal Provisions

The Hindu Marriage Act, 1955, 1 under Section – 13(1) has provided for divorce on the grounds of cruelty. The original text runs as follows –

“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 has, after the solemnization of the marriage, treated the petitioners with cruelty” 2

Hence, on the basis of this section, it can be concluded to an extent that this section lays down the legal foundation or basis for any individual who is being subject to cruelty, both physical or mental has the authority to approach a relevant court for remedy.

Similar Grounds for Divorce

Apart from cruelty itself, there are other similar grounds for which divorce might be filed for. These include adultery, desertion, conversion, conversion or unsoundness of mind. There are also certain grounds laid down specifically for women to file for divorce. This includes husband having more than one wife, marriage before fifteen years of age or marriage by force.

Extracts of Relevant Case Laws

Naveen Kohli vs Neelu Kohli (AIR 2004 All 1)

Facts – The petitioner, Naveen Kohli got married to Neelu Kohli on 20th November 1975. Three sons were born out of the wedding of the parties. As per the petitioner, the defendant was bad tempered and was often guilty of extremely rude behaviour with the petitioner and his family and relatives. With pieces of evidence also being available of alleged adultery and misappropriation of personal funds, the defendant moved out of the common home to live in separate rented quarters.

The course of Judgment – The initial Trial Court ruled in favour of the petitioner and even attempted to make arrangements to get the defendant arrested. The defendant, however, further appealed in the High Court where a judgement was passed in the light that the behaviour of the defendant might amount to misconduct but not “cruelty”, hence dismissing the suit.

The husband finally took the case to the Supreme Court, where the court interpreted Section 13(1) of the Hindu Marriage Act, 1955 to suit the plight of the petitioner. The explanation lay in the fact that physical damage was not required to constitute “cruelty”, and the fact that the petitioner had already undergone severe mental agony, was adequate for the marriage to be dissolved.

Yudhishtir Singh vs Smt. Sarita (AIR 2002 Raj. 382)

Facts – The marriage between the two parties took place on 9th December 1990. One year into the marriage, the wife – Sarita, had filed a restitution of her matrimonial rights in a local court on the grounds of temporary desertion and misbehaviour regarding dowry money and assets. Even when the wife went back to her parent’s home, there was no concern shown by the husband. There was a rude behaviour when she attempted to go back to the in-law’s house.


The husband denied any allegations of behaviour and filed for divorce on the grounds of “cruelty” of the wife. Reasons listed for the divorce included misbehaviour, non-co-operation with family members, lack of intent to return from parent’s home and even the wife threatening the petitioner (the husband) with a divorce suit.

The course of Judgement – The court found the statement of the husband to be incomplete and unfounded in nature. The evidence of the so-called “cruelty” provided by the petitioner, such as non-co-operation or minor misbehaviour was not deemed to be severe enough to constitute cruelty. The court also found evidence of the husband’s misbehaviour regarding dowry demands and desertion of the wife, which resulted in the case filed by the husband being dismissed.

Historically, there have been very few laws that have addressed divorce on the grounds of cruelty or mental torture in India. The Hindu Marriages Act is the only exception that fills the void to some extent. The existing case laws delineate the fact that for “cruelty” to be established as a ground for divorce, the magnitude of the same is a crucial determinant to whether a case shall be successful or not. It also highlights the rights of all individuals to seek redressal if their marital lives are genuinely disrupted due to cruelty.

References

1. The Hindu Marriage Act, 1955 – Act No. 25 of 1955

2. Original Text of Section 13 (1) of the Hindu Marriage Act, 1955

3. Naveen Kohli vs Neelu Kohli – Case No: Civil Appeal 812 of 2004

4. Yudhishter Singh vs Smt. Sarita on 22 April 2002 – Bench: N Marthur and D Joshi

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Many people hesitate in seeking professional advice from a divorce lawyer, thinking that it saves money by getting free advice from online groups, but the reality is that can be a costly mistake. Every advice to a problem varies on several factors and needs to be personalized for an effective remedy.

An experienced divorce lawyer can help a person to make certain to receive everything that he or she deserves during a divorce such as splitting of assets, or entitlement to spousal income. You might miss out several benefits when an opinion is not sought from an experienced divorce lawyer clearly stating the complete facts and circumstances.

Though divorce is a stressful event in a person’s life, seeking professional help from an experienced divorce lawyer to complete the divorce formalities is a one way to reduce the stress of the divorce. You can delete the legal aspects of the divorce proceedings to an advocate and focus on your personal/professional life.

Mistakes in a legal battle can prove costly. Even if a single issue is not addressed properly, that may change the fate of the case. Divorce lawyers are specialist and they can think clearly and handle every aspect of the divorce proceeding. It is a better decision to leave such complex legal work to the experts.

A divorce lawyer can help you be practical in identifying what you really want out of the divorce and can thus help you come to an agreement more quickly.

A person who goes to court without legal counsel may find that problems with the paperwork or other issues may result in a delay in the divorce proceeding and sometimes may affect the winning of the case.

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