Divorce Law

Divorce Law

Divorce Law

The cessation or the legal termination of the marriage is called divorce (‘parpachuke’ or ‘sambandha bichhed’). It is legal dissolution of a marriage by a court or other competent body. Chapter 3 of the Civil Code, 2074 makes legal provision relating to divorce. There are many grounds for the husband and wife to claim for divorce. If both the husband and wife desire for divorce, they may divorce the relationship of husband and wife at any time according to section 93 of the Act. But if there is not the consent of either of the parties, there are certain circumstances to suit for divorce.

Grounds for husband

According to section 94, the husband may file suit in any of the following conditions even without the consent of the wife:

  • If the wife has been living separately for 3 years or more consecutive years without the consent of the husband (except where the husband and wife are living separately by taking their partition share or separating mana chamal in accordance with the law),
  • If the wife deprives the husband of maintenance costs or expels the husband from the house.
  • If the wife commits an act or conspiracy that causes to grievous hurt or severe physical or mental pain to the husband,
  • If it is proved that the wife has made sexual relation with another person.

Grounds for wife

Similarly, section 95 lays down some grounds where the wife may file divorce suit without the consent of the husband viz.:

  • If the husband has been living separately for 3 or more consecutive years without the consent of the wife,
  • If the husband commits an act or conspires to cause grievous hurt or severe physical or mental pain to the wife,
  • If the husband concludes another marriage,
  • If husband is proved to have made sexual intercourse with another woman,
  • If the husband is proved to have raped the wife.

Petition to be filed for divorce

The spouse desirous to make divorce has to file petition in the court. And after such petition is filed for divorce, the court shall, to the extent possible, remind and convince both the parties and conciliate them by mediation and if deems appropriate to get the relationship divorced rather than to continue, the court shall effect divorce between them.

Partition of property to be effected before divorce

According to section 99, if divorce is to be effected because of the husband, if the wife demands, the court makes the partition between the husband and wife before effecting divorce.
Section 100 says that if the wife wanting divorce, desires to obtain to obtain lump sum amount or annual or monthly alimony or expense instead of the partition share, the court may order to provide so on the basis of his property or income and if the wife has not obtained the partition share just because the husband has no property, the wife may demand for the maintenance cost from the income of the husband by the order of the court.

Previous child or husband to obtain property

Section 103 says that if a divorcee woman dies, her son, daughter, if any, shall be entitled to her property, and if she has not son or daughter, the previous husband shall obtain the property received by her from the previous husband and the successors on her mother’s side shall obtain the other property.

Judicial separation

Under the family law, it is a court decree requiring a husband and wife to cease cohabiting but not dissolving the marriage. It is temporary suspension of marital rights between the spouses as a result of decree passed by the court on the grounds like Adultery, Cruelty, Desertion, Conversion, Unsoundness of mind, Leprosy, Venereal diseases, presumed death etc. and additional grounds like bigamy, rape, sodomy etc. for the wife as per the Hindu Marriage Act (India). But Nepalese law does not have the provision of judicial separation. However, section 213 of the chapter on partition says that husband or wife may get separated by obtaining partition share in any of the following circumstances:

  • If the husband or wife expels the wife or husband from the house,
  • If the husband or wife causes physical or mental torture to the wife or husband.

Time limitation

Section 104 has provided the time limitation for the person aggrieved from such act can make lawsuit within 3 months after the date of accrual of the cause of action or knowledge of such action.

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