According to Hindu Philosophers, Marriage is a sacrament, a divine covenant, and a pure relationship. Earlier marriage was an obligation, which once accepted, should be maintained by both the parties throughout their lives and which cannot be terminated through separation on some personal and selfish grounds. Today the attitude towards marriage is changing. The Ancient Hindu Law was unknown to the concept of divorce earlier as marriage was considered as an indissoluble union of the spouses. Divorce is not generally encouraged by courts; it is permitted only for serious and grave reasons[1]. According to Letourneau, “divorce as an institution is the final milestone in the process of freeing the woman from the slavery of man in the marital relationship”.
Life is full of changes, and it’s possible to change a divorce order to help you cope with those changes. Divorce modification is the legal process of amending a divorce order issued by a court. A final divorce decree will specify rights and obligations regarding child custody and visitation, as well as spousal support, division of property, and other matters. A petition to amend a divorce decree can be filed for modifying any of the rights and obligations specified in the divorce decree.
Can the Divorce Decree be amended?
It is possible to modify a divorce decree, even after the final decree has been issued in its name. Although, the reason for amending a divorce decree arises from a significant change in the circumstances of one of the parties subject to the decree, reason being, child support order, custody order, child visitation schedule or spousal support order, as divorce not only intends for the legal separation of husband and wife even major factors are involved relating to their future lives.
After completion of the divorce process, a final divorce decree will be issued. Typically, the final divorce decree will outline the rights and obligations of every person with regard to the division of marital property. Additionally, the final divorce decree can also include a child support order, custody order, child visitation schedule, or spousal support order.
Amending Divorce decree:
The concept of modifying the final divorce decree is not available as a remedy to everyone. In India, the concept of amendment of a divorce decree has not been addressed under law specifically. However, the concept of alimony and maintenance amendment has been exclusively defined under the heading of permanent alimony[2].
A petition to appeal or modify the final divorce decree can be filed, if the terms of the divorce decree are unjust or the circumstances have been changed. An appeal needs to filed in order to overturn the divorce decree. Generally, an appeal won’t be considered unless there are exceptional and compelling circumstances, such as rulings that don’t comply with the statutes, if there is a fundamental inequity in decree, or if it can be shown that fraud or misconduct has occurred.
Section 37, under the Indian Divorce Act, 1869, states that the Court has power to pass orders on account of changed circumstances after a decree for divorce has been passes[3]. Section 25 (2) under the Hindu Marriage Act, 1955, the court has the power to grant such amount of maintenance to the party and If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1) (where the court has power to grant a sum of amount as alimony), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just[4]. Under the Parsi Marriage and Divorce Act, 1936, Section 40 mentions Permanent alimony and maintenance and if there is change in the circumstances of the parties the court may or either party may vary, modify or rescind such order in such a manner as it may deem fit. Similarly, under the Dissolution of Muslim Marriages Act, 1939, and The Muslim Women (Protection of Rights on Divorce) Act, 1986, there is no such power vested with the Court where it can amend the decree of divorce for alimony grounds[5]. But here comparatively Section 125 of the Criminal Procedure Code can come into play where the party can approach the court for maintenance as a separate right than the right under these acts.
The members of the divorce party have 90 days in order to final an appeal against the final divorce decree order, which was only 30 days earlier. The government had introduced the ‘family courts’ in 1984 and had enacted the Family Courts Act which sets 90 days as deadline to file an appeal against decrees. The two different laws that provided for 90 days to file an appeal, as amended in 2003, and the Family Courts Act of 1984 that provides only 30 days were the Hindu Marriage Act (HMA) of 1955[6].
Appeals for Divorce Decree:
There are different ways that a final divorce decree can be challenged, and many of them are only granted according to the judge’s discretion. Some ways which can challenge the decree to include:
Appeal: The basic way to challenge divorce decree is an appeal which so one of the most time-consuming criteria. Generally, time for 30 days has been provided in order to file an appeal against the final divorce decree but later the Family Courts Act sets 90 days as the deadline to file an appeal against decrees. he courts have strict procedures and deadlines about filling the notice of appeal, failure to do so will loose the right to appeal.
Motion for Hearing: A motion for rehearing is a very technical type of procedure that must be filed almost immediately after the judgment is issued. Generally, the t to a hearing of the case is not given to the parties, this right is only granted by the judge.
Motion for relief from judgment: A motion for relief from judgment is only granted in limited circumstances, like if the other party committed fraud or concealed assets. The motion for relief can only be granted in cases where something serious has occurred or according to any of the party members the final divorce decree is unjust or there is some kind of serious mistake. The motion for relief from judgment usually has a longer deadline for filling than the motion for rehearing.
With the increased divorce rate, it is important to understand and find new and alternative therapeutic approaches to marital therapy. It is important to remember that violating an order contained within the final divorce decree is a serious matter. If any member of the party subject to the decree does not follow the terms outlined in the decree, they risk facing legal consequences. Therefore, if any of the orders issued in the final divorce decree is not followed then a request for modification or amendment can be applied. As noted above, modifications of the final divorce decree, other than the part dealing with property division, are permitted so long as the request for modification is made either in the best interests of the child or due to a material change. Further, if both parties are in agreement as to the modification of the final divorce decree, a court will likely grant the modification without issue.
References:
[1]Smt. Mala v. Bal Krishna, 2016 AIR (Sikkim) 28; 1974 AIR (SC) 165.
[2]“ How to amend a Divorce Decree”; by Deb; Law House; 9 March, 2019; https://www.lawhousekolkata.com/2019/03/09/how-to-amend-a-divorce-decree/
[3]India Divorce Act, 1869
[4]Hindu Marriage Act, 1955
[5]“ How to amend a Divorce Decree”; by Deb; Law House; 9 March, 2019; https://www.lawhousekolkata.com/2019/03/09/how-to-amend-a-divorce-decree/
[6]“Hindu couple can remarry 90 days after divorce:” Bombay High Court”; by Sandhya Dangwal; India.com; December 8, 2016; https://www.india.com/news/india/hindu-couple-can-remarry-90-days-after-divorce-bombay-high-court-1696657/
This article is authored by Advocate Nidhi Mishra, LLB, LL.M, at Maharashtra
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