FAMILY LAW ASSIGNMENT

TOPIC – Dissolution of marriage & Evolution

of family courts

Name – Aryan Chandra Shandilya

Enrolment I’d – 20FLICDDN02055
Year – IInd year
Session- 2020-2025
Semester – IIIrd
 Index

Acknowledgment 3
Introduction: - 4
Dissolution of Marriage- 4
Evolution of Family Courts- 4
Theories of Divorce: - 5
Fault Theory- 5
Mutual Consent Theory- 5
Irretrievable Breakdown Theory- 6
Grounds Of Divorce- 6
Adultery 7
Cruelty 7
Desertion for 2 years or more 7
Conversion 7
Insanity 8
Unsoundness of Mind 8
Venereal Disease 8
Renunciation Of World 8
Presumption Of Death 8
Concept of Divorce with Mutual Consent- 8
No petition for Divorce within one year of Marriage- 8
Sec.13 A and Sec.13 B of The Hindu Marriage Act- 9
CASE LAW 9
Grounds of Divorce for both under Special Marriage Act,1954- 9
Evolution of Family Courts in India 10
 Acknowledgment
At the very outset, I would like to thank all those who were the ‘guiding lights’
behind this project. First of all, I would like to take this opportunity with
esteem privilege to express my heartfelt thanks and gratitude to my course
teacher Dr. Ashish Kumar Singhal Sir, Faculty Law, Subject Family Law, ICFAI
LAW SCHOOL for having faith in me in awarding me this very significant project
topic of such importance. His consistent supervision, constant inspiration and
invaluable guidance have been of immense help in carrying out the project
work with success. Next, I would like to thank my colleague’s for lending me a
helping hand during the shaping up of the project; subsequently I would like to
thank my university for allowing me to avail the computer lab and internet
facilities without which this project would have been in a distant realm. I
extend my heartfelt thanks to my family and friends for their moral support
and encouragement. I also take this opportunity to thank all those people who
contribute in their own small ways but fail to get a mention.

Sincerely,
Aryan Chandra Shandilya
Introduction: -

Dissolution of Marriage-
The Hindu Law states divorce as the “Dissolution of Marriage”, it is a concept
which comes when there is a separation between a married couple through
legal means and under the Hindu Law, Dissolution can be obtained under the
Sec. 13(1) and Sec13(2) of the Hindu law. Husband or Wife can sue each other
for divorce or the wife can alone seek for divorce but in the end the mutual
consent is necessary is important in any case.

The Hindu Marriage Act, 1955, originally, based divorce on the fault theory and
enshrined nine fault grounds in Section 13(1) on which either the husband or
the wife could sue for divorce, and two fault grounds in Section 13(2) on which
wife alone could seek divorce. By an amendment of 1964, by recasting last two
clauses of Section 13(1).

Evolution of Family Courts-

The first Family Court was established in the United States of America in the
year of 1910 and the court was known was as the “Domestic Relations Courts”.
But the idea was quite old, in 19th Century in England Court of Divorce and
Matrimonial cases was established to lessen the burden of the general courts.

The family courts were created by keeping a very perfect picture in mind of the
cases these courts needed to handle.

The Family courts generally handle cases related to divorce, separation and
cases related to child custody
Theories of Divorce: -
There are three different theories of divorce
1. Fault Theories
2. Mutual Consent Theory
3. Irretrievable Breakdown Theory

Fault Theory-
The 'Fault Theory', a wedding is dissolved only if either of the spouses had
committed any marital status offence. it's necessary that one relation had
committed a marital status guilt, whereas the opposite relation is totally
Associate in Nursing innocent party. Here, the innocent relation is taken into
account to be as a victim and he or she is given the freedom to interrupt the
matrimonial tie by effort the correct of divorce against the opposite relation
WHO is guilty by committing a marital status culpableness.

Mutual Consent Theory-

The “Consent theory” of divorce relies upon the principle that the partner
should have a right to dissolve their wedding by mutual consent. With the
advancement in socio-economic condition, the partner became self-directed
and freelance. they're ready to measure singly instead of keep united whereas
sad with their wedding.
The consent theory stands against the construct of guilt theory of divorce. as a
result of if wedding could be a contract primarily based upon the free volition
of the parties, the parties ought to have equal freedom to dissolve it.

The basis of wedding is mutual fidelity, and if for any reason the parties feel
that mutual loyalty cannot continue more then they must have the liberty to
dissolve their wedding. the most criticism of the consent theory of divorce is
that it'll give birth to chaos and can cause hasty divorce.
However, it's not true as a result of once parties to the wedding feel that they
can't live along and it's higher to finish this ceremony knot, then the law ought
to give them with an opportunity to restart their life with new vigour. it's
rather like correction of a mistake created by each party to {the wedding the
wedding} once they realise that they will not live along and their marriage has
cladded to be a lousy discount.
Irretrievable Breakdown Theory-
The breakdown of wedding is outlined as “such failure within the married
relationships or such circumstances adverse to it relationship that no cheap
chance remains for the spouses once more inhabitancy as husband & married
person.” Such wedding ought to be dissolved with most fairness & minimum
bitterness, distress & humiliation. Some of the grounds out there beneath the
Hindu wedding Act is same to be beneath the theory of frustration by reason
of such circumstances. These embrace civil death, renouncement of the globe
etc.

Grounds Of Divorce-

The various grounds on which a decree of divorce can be obtained

are as follows-

1. Adultery
2. Cruelty
3. Desertion for 2 years or more
4. Conversion
5. Insanity
6. Unsoundness of Mind
7. Venereal Disease
8. Renunciation Of World
9. Presumption Of Death
10.Non resumption of cohabitation after the decree of judicial separation
11.Failure to comply with the decree of restitution of conjugal rights

Additional ground of Divorce in favour

of Wife
 1. Husband’s Bigamy
2. Rape, Sodomy or Bestiality
3. Repudiation of marriage (Marriage before the age of 15 and repudiated
the marriage before 18)
4. Non resumption of cohabitation for one year or upwards

Adultery-
The idea of adultery may not be considered offence in several countries.
however as per the Hindu Marriage Act, within the marital status offence, the
criminal conversation is taken into account united of the foremost vital ground
for seeking divorce. criminal conversation means that the accordant and
voluntary intercourse between a relation with another person, married or
single, of the other sex. Even the intercourse between the husband and his
second married woman i.e., if their wedding is taken into account below
bigamy, the person is responsible for the criminal conversation.

Cruelty-
The concept of cruelty includes mental moreover as physical cruelty. The
physical cruelty means that once one significant other beat or causes any
bodily injury to the opposite significant other. however, the thought of mental
cruelty was another because the significant other can even be mentally
tortured by the opposite significant other. Mental Cruelty is lack of kindness
that adversely affects the health of the person. Well, it's simple to work out the
character of physical cruelty however troublesome to mention concerning
mental cruelty

Desertion-
Desertion suggests that the permanent abandonment of 1 mate by the
opposite mate with none affordable justification and while not his consent. In
General, the rejection of the obligations of wedding by one party.

Conversion-
If one of the couples converts his or her religion to any other religion without
the permission of the other spouse, then the other person can approach the
court and seek divorce.
Insanity-
Insanity suggests that once the person is of unsound mind. mental illness as a
ground of divorce has the subsequent 2 requirements-

1.The respondent has been incurably of unsound mind.

2.The respondent has been suffering incessantly or intermittently from
disorder of such a form and to such an extent that the petitioner cannot fairly
be expected to measure with the respondent.

Venereal Disease-
Under this concept, if the disease is in infectable disease and the partner can
be also be infected by the disease, then this can be considered as the valid
ground for divorce.

Renunciation of World-
It means that once one among the spouses conceive to renunciate the globe
and walk on the trail of the God, then the opposite spousal equivalent will
approach the court and demand the divorce. during this idea the party World
Health Organization renunciates the globe is taken into account as civilly
dead. it's a typical Hindu follow and regarded as a legitimate ground for
divorce.

Presumption Of Death-
In this case, the person is probable to possess died, if the family or the buddies
of that person doesn't hear any news regarding the person alive or dead for
seven years. it's thought-about because the valid ground for divorce, however
the burden of proof is on the one who demands the divorce.

Concept of Divorce with Mutual Consent-

As per Section 13B, the person will file the petition for divorce by mutual
consent of each the parties. If the parties need to dissolve their wedding as a
mutual consent square measure needed to attend for one year from date of
wedding. they need to indicate that they're living singly for one or a lot of year
and powerless to measure with each other.

No petition for Divorce within one year of Marriage-

As per Section 14, no Court can entertain the petition of divorce among the
one year of the wedding. however, will be diverted if the matter is said to
bigamy, and wherever the consent of the married person was taken through
deception, fraud, undue influence etc.

Sec.13 A and Sec.13 B of The Hindu Marriage Act-

Sec.13(A)-
Alternate Relief in Divorce proceedings-The court
may whereas handling the petition for divorce have a
discretion to grant a decree for rescript.

Sec.13(B)-
Divorce by Mutual Consent-It says such a petition
is needed to be affected together by the parties to wedding on
the ground that they need been living individually for an amount
of one year or additional and that they haven't been able to live
together and additionally that they need united that the wedding be
dissolved with impact from the date of decree.

CASE LAW

V.Bhagat Vs.D. Bhagat AIR 1994 SC 710-

Bench for the case-

Jeevan Reddy, B.P.(J)
Kuldip Singh(J)

Facts of the Case-

The respondent was operating in an exceedingly tv Company at the time of her
wedding. once the birth of a baby she left the duty in August 1967. The
respondent started operating once more from the year 1972 onward. to begin
with she was utilized in an exceedingly agency. Somewhere around 1978-79,
the petitioner began suspecting her of unfaithfulness. in keeping with him,
once he questioned the respondent of her adulterous behaviour, she admitted
identical and asked to be pardoned. The better half denies this. She says, she
ne'er created any such admission which the allegation may be an all false one.
From 1980 onward the petitioner was creating tries to get a divorce by
consent. The respondent wasn't willing. On May 28, 1985, he instituted the
current petition for divorce within the District Court, Delhi. The divorce
petition runs into over a hundred and sixty paragraphs. the most ground is free
love. in keeping with the husband, the better half is associate uncorrectable
loose woman. The respondent flied the written statement denying the
allegations. The written statement, it something, is even lengthier and a lot of
voluminous than the divorce petition.

She has denied the allegation in toto. in keeping with her, the husband is like
Othello a pathologically suspicious character.

Grounds of Divorce for both under Special Marriage Act,1954-

Under Sec 27(1) of Special Marriage Act 1954 A petition for divorce may be
presented to the district court either by the husband or by the wife
on the ground that the respondent-

1.Had done adultery

2.Had deserted the petitioner for two years or more
3.Is undergoing a sentence of imprisonment for seven
years or more
4.Had treated the petitioner with cruelty
5.Has been of unsound mind
6.Has venereal disease
7.Leprosy
8.Has not been heard for seven years or more
9.That there has been no resumption of Cohabitation
between parties for one year or upwards
10.That there has been no restitution of conjugal rights for
one year or upwards
Evolution of Family Courts in India

The need to ascertain the Family Courts was initial emphasised by late Smt
Durga Bai Deshmukh when her visit to China within the year 1953, wherever
she had the chance to check the operating of Family Courts. She mentioned
the topic with Hon’ble adult male Justice M.C. Chagla of Mumbai judicature
and additionally Hon’ble adult male Justice P.B. Gajendragadkar, then they
choose, Mumbai judicature. She additionally mentioned the matter of putting
in place of the Family Courts with the then Prime Minister Pandit Jawahar Lal
Jawaharlal Nehru. many ladies’ associations, welfare organizations and people
additionally mounted pressure for setting-up of the Family Courts to supply a
forum for quick settlement of family relates disputes. the stress was on a non-
adversarial technique of resolution family disputes and promoting conciliation
and securing speedy settlement of dispute regarding wedding and family
affairs.

The Law Commission in its 59th report (1974) additionally counselled for
setting-up of special courts wherever rules of procedure would be easier. The
Law Commission additionally emphasised that such courts could adopt and
approach radical steps distinguished from the present civil courts which such
courts ought to create affordable efforts for settlement before commencement
of the trial. In 1975, the ‘Committee on the standing of Women’ counselled
that each one matters regarding the ‘family’ be handled on an individual basis.

In 1984, the Family Courts Act was passed and it came into force on Sept
fourteen, 1984. the target was to require family and married disputes aloof
from the overcrowded daunting and engorged setting of ancient courts of law
and produce them to congenial and sympathetic surroundings. The aim was
‘conciliation’ between the alienated members of the family and not
‘confrontation’.
Family Court Mumbai was established with impact from seventh October
1989.it began with five Courts at first and through could 1995 sixth and
seventh Court operations started.