Divorce Law in India: Divorce Process in India

Divorce is an event that severely disrupts life and may cause considerable stress—financial, emotional, and even spiritual, and is one of the most traumatic events that can happen to any marriage. Divorce is highly stigmatised in India. Divorce is a personal affair and is governed differently for various religions.

The divorce process in India is governed by the Hindu Marriage Act of 1955 for Jains, Sikhs, Hindus, and Buddhists. The Dissolution of Muslim Marriage Act,1939, rules divorce laws for Muslims, the Parsi Marriage and Divorce Act,1936, governs divorce laws for Parsis, and the Indian Divorce Act,1869 governs divorce laws for Christians. The Special Marriages Act of 1954 governs all intercommunity marriages.

Types of Divorce Petitions

Divorce petitions are of the following types:

Divorce with mutual consent

A married couple can seek a divorce from the courts if they voluntarily agree to dissolve their marriage. However, the marriage will not be immediately dissolved by the court. It is essential to demonstrate that the couple has been living separately for at least a year or two for granting the divorce petition.

A divorce petition may be filed not because of a disagreement between the husband and wife but because of financial difficulties that prevent the pair from earning a living. The couple could seek a divorce with mutual consent in such instances.

When a husband and wife seek a divorce, they should consider the following three factors:

  • First, the quantity of time that the pair need at a minimum and a maximum.
  • The issue of child custody is the second facet. When a couple divorces by mutual consent, it is up to them to decide who will retain custody of their kid. Custody can be shared or exclusive, depending on the agreement of both parties.
  • The third factor is property, specifically how much of the husband’s property and the property the woman will receive.

Various laws specify varying time frames for the divorce procedure of couples belonging to different religions. To commence divorce procedures, both the husband and wife must have lived apart for a minimum of one year, according to Section 13B of the Hindu Marriage Act, 1955.

Christians are governed by different laws. According to the Divorce Act of 1869 Section 10A, the spouse must live apart for a minimum of 2 years before the divorce filing. Living apart does not imply that the couple must reside in two distinct places. It is sufficient to show that they were not living as husband and wife even though they lived together.

Divorce without mutual consent

The following grounds can be used to get a divorce without mutual consent:

Cruelty

Cruelty may be both physical and mental; if one of the parties believes that the other party’s behaviour towards him/her is likely to inflict some mental or bodily damage, then this is a valid reason to seek divorce.

Adultery

Adultery was once a criminal offence in India, but adultery has been decriminalised in a recent Supreme Court decision. However, it can still be used to seek a divorce from a spouse who has been committing adultery.

Desertion

If one of the parties abandons the other party without a valid reason, then a request for a divorce may be admissible. The individual who abandons the other spouse, on the other hand, must have the purpose to desert and the proof to back it up. The desertion must have lasted at least two years in Hindu law, while there is no such time bar under Christian law, and a divorce petition can be filed simply by claiming that the other spouse committed desertion.

Conversion

A spouse’s conversion to another faith is another basis for seeking a divorce from the other person. Waiting a certain amount of time before filing for divorce is not recommended.

Mental illness

If the spouse cannot execute regular tasks that he/she gets expected to undertake owing to a mental problem or disease, divorce may get requested. However, if the person’s mental condition does not impair his or her ability to execute his or her obligations, the divorce cannot be granted.

Death presumption

If a spouse has not been heard of for at least 7 years, the spouse who has not heard any news about his/her spouse’s whereabouts can file divorce as the courts presume the missing spouse as dead.

Abandonment of the World

The offended spouse might seek divorce if the partner intends to abandon the world and join a holy order. This resignation, however, must be absolute and irreversible when it comes to the divorce process in India.

Divorce Notice

The divorce process in India is time consuming. Therefore, you should be aware that you must provide your spouse with a divorce notice to clear your emotions and provide a platform to begin thinking about ending the relationship. A formal divorce notice informs the other spouse of your intentions for the future relationship.

A spouse can send the other spouse a formal notice of divorce to convey his or her decision to pursue legal action to discontinue the marriage connection. It is a formal communication, and it is the first step in separation.

Alimony

When two individuals marry, they owe each other a promise to support one another. As per the Code of Criminal Procedure, 1973, the right to maintenance applies to every individual economically dependent on the marriage. As a result, any spouse, dependent children, or even poor parents are included.

Alimony is a monetary allowance or payment that a court requires one spouse to make to the other for support.

When a couple divorces by mutual consent, according to the Divorce law in India, whether either side should pay alimony/maintenance is a matter of mutual agreement. In such circumstances, alimony/maintenance may be paid by either the husband to the wife or the wife to the husband, which is dependent on the mutual agreement of the couple.

The court issues the divorce decree based on the conditions agreed upon by the couple. The decree is legally binding on the couple and can be enforced by the court.

How to file a divorce in India

If a couple wishes to divorce, the divorce process in India proceeds as follows:

  • The couple must first employ a lawyer to give them all the facts.
  • The lawyer will submit a petition to the court.
  • The spouse will then receive a copy of the petition.
  • The spouse may either consent to divorce or file a divorce suit.
  • The facts of the case will determine the conclusion of the procedure.
  • In the case of divorce by mutual consent, the parties must demonstrate that they have lived separately for more than a year.
  • The parties are granted six months to contemplate their divorce.
  • If, after the six-month term, the parties are still of the view that they desire a divorce, the court can issue a divorce judgement.

Documents required to file a petition for a contested divorce

The following papers are necessary for the filing of a divorce petition for a disputed divorce:

  • Proof of husband’s address
  • Proof of wife’s address
  • Marriage certificate
  • Both husband and wife must have four passport-size pictures.
  • There should be evidence that both the husband and wife have lived apart.
  • Evidence demonstrating that attempts to reconcile were made but were unsuccessful.
  • Income tax returns in the past two to three years
  • Details about the petitioner’s occupation and current income
  • Both parties’ family backgrounds should be disclosed
  • Specifics about petitioner’s property

Contents of a Divorce Petition

The Code of Civil Procedure, 1908, governs filing a divorce lawsuit in India. Starting a divorce process in India begins with either the husband or wife submitting a divorce petition, followed by an affidavit from both parties. The following information should be included in the divorce petition:

  • Names of the parties
  • The wedding date and location
  • The parties’ status and place of residence
  • A permanent location the parties lived together
  • The last place the parties lived together
  • Name of the kid (if any) as well as a copy of their birth certificate
  • Cause for filing for divorce or separation
  • Parties must provide a written declaration guaranteeing that they are not misrepresenting the court.
  • If the court is pleased with the petition and facts are given, the court can issue a judgement granting the couple a mutual divorce.

Grounds for the dissolution of marriage

The Indian court system’s secular attitude has promulgated several personal laws based on diverse religious religions. Separate marriage legislation and reasons for divorce govern Hindus, Christians, and Muslims in India.

1. Grounds for divorce under the Hindu Marriage Act of 1955

The Hindu Marriage Act of 1955 specifies the following reasons for divorce in India.

  • Adultery: It is defined as the act of engaging in any type of sexual acts, including intercourse, outside of marriage. Adultery was a criminal felony requiring extensive proof to establish. According to a 1976 modification to the law, a single act of adultery is sufficient for the petitioner to get a divorce.
  • Cruelty: When a spouse is exposed to any type of mental or physical damage that puts his or her life, limb, or health in jeopardy, he or she has the right to petition for divorce. Intangible acts of cruelty such as mental torture are evaluated on a sequence of episodes rather than a single action. Cruelty includes food deprivation, continual ill-treatment and abuse to get a dowry, bizarre sexual acts, among others.
  • Desertion: If one of the spouses willingly abandons his or her partner for at least two years, the abandoned spouse has the right to petition for divorce on the grounds of desertion.
  • Conversion: If one of the spouses changes to a different faith, the other spouse may seek divorce on this basis.
  • Mental Illness: If the petitioner’s spouse suffers from incurable mental disorder and insanity and cannot get expected to continue together, the mental disorder might cause divorce.
  • Leprosy: In the instance of a ‘virulent and incurable type of leprosy, the other spouse may submit a petition on this basis.
  • Venereal condition: If one of the spouses is suffering from a severe disease that is easily contagious, the other spouse may petition for divorce. Sexually transmitted illnesses, such as AIDS, are classified as venereal diseases.
  • Renunciation: A spouse has the right to divorce if the other spouse renounces all worldly activities by joining a religious organisation.
  • Not heard alive: If a person is not heard alive or seen for 7 years by people anticipated to be naturally hearing of the individual, the person is believed to be dead. If the other spouse wishes to remarry, he or she should petition for divorce.
  • No resumption of cohabitation: If the couple fails to resume their cohabitation after the court has issued a separation judgement, it becomes grounds for divorce.

The following are the reasons for divorce in India that only the woman can submit a petition.

  • If the husband has a history of rape, bestiality, or sodomy
  • If the marriage is solemnised before the Hindu Marriage Act and the husband marries again while the first wife is still living, the first wife may seek divorce
  • A girl has the right to divorce if she was married before the age of 15 and renounces the marriage before 18
  • After a year of no cohabitation and the husband failing to pay the court-ordered support, the wife may file for divorce

2. Grounds for divorce under the Dissolution of Muslim Marriage Act, 1939

A Muslim woman in India can seek divorce for the following reasons, according to the Dissolution of Muslim Marriage Act, 1939.

  • The husband’s whereabouts have remained unclear for the previous four years
  • The husband has neglected to maintain his wife for at least two years
  • The spouse got imprisoned for 7 years or more.
  • The spouse is unable to fulfil his marital responsibilities
  • If the girl marries before 15 years of age and decides to divorce before the age of 18
  • The husband engages in nasty behaviour

3. The Indian Divorce Act of 1869 specifies the following reasons for divorce.

  • Infidelity
  • Conversion to a different faith
  • For at least two years before initiating the divorce, one partner suffered from insanity, leprosy, or a contagious venereal illness
  • Not seen or heard from in 7 years or more.
  • Failure to comply with the return of conjugal rights for at least 2 years
  • Inflicting cruelty and causing mental anguish, both of which can be harmful to one’s health and life.
  • A divorce can be sought based on rape, sodomy, or bestiality by the wife.

4. Grounds for Divorce under the Parsi Marriage and Divorce Act, 1936 (Amendment 1988)

  • Continuous absence of 7 years
  • Failure to consummate a marriage within a year
  • Insanity, if the other spouse was unconscious of the fact at the time of the marriage and the divorce was filed within 3 years of the marriage
  • Pregnancy by a man other than the husband provided the husband was uninformed of the incidence at the time of marriage and did not engage in sexual activity after learning of the condition. The divorce must be filed within 2 years after the conclusion of the marriage.
  • Adultery, bigamy, fornication, rape, or any other heinous sexual crime
  • Cruel behaviour
  • Inflicting venereal illness on the wife or driving her into prostitution
  • Imprisoned for 7 years or more
  • Two or more years of desertion
  • Inability to resume cohabitation following the issuance of a maintenance order or a judicial separation judgement.

Factors influencing the duration and amount of alimony

The length of the marriage typically determines alimony amounts and duration in divorce processes in India.

  • Lifetime alimony is available to couples who have been married for more than 10 years
  • When determining alimony, the age of the husband should be considered. Typically, alimony is granted to a young recipient for a limited time if the court believes that he or she will soon be able to become financially secure through anticipated job brilliance.
  • Alimony can bring both couples’ economic situations into balance. The higher-earning spouse is entitled to a sizable alimony payment
  • The spouse expected to have a successful job is obligated to pay a large amount of alimony
  • If one partner is in bad health, the other partner is forced to make a large alimony payment to ensure adequate medicine and well-being of the other partner.
  • In India, the rules and conditions of alimony payment differ from one personal law to the next. Because of legislation establishing precise procedures for giving alimony, none of the Indian personal laws is immune from criticism

Judicial separation

Judicial separation is the legal separation of a husband and wife initiated by a petition filed in court by either the husband or the wife. In the event of judicial separation, the pair is still officially married, but they live apart, and neither couple is permitted to remarry.

Section 10 of the Hindu Marriage Act of 1955 governs judicial separation under the Hindu religion. If a decree for judicial separation is passed, it is no longer obligatory for the parties to cohabit with each other. On being satisfied by the facts presented by one of the parties, the court can rescind the decree.

Difference between judicial separation and divorce

Allhough judicial separation and divorce appear to be the same, they have distinct definitions from a legal point of view:

  • The first distinction is that a petition for judicial separation can be submitted at any time before marriage. Still, a divorce petition can only be filed one year after the completion of marriage.
  • Judicial separation procedure is considerably speedier and less time-consuming as it requires a decree for separation. However, divorce is a two-stage process, namely reconciliation and, if the parties still desire to split, final divorce.
  • Judicial separation may be defined as a temporary suspension of marriage, in which both parties continue to be referred to as husband and wife. Divorce is a full stop to the marriage, and they are no longer referred to as husband and wife.
  • Although the pair is separated following the decree of judicial separation, they cannot remarry; nevertheless, when the decree of divorce is issued, both parties cease to be husband and wife and, as a result, are separated and can choose to remarry.
  • When a couple is judicially separated, they can remarry because the separation is only temporary. However, when a divorce order is issued, there is no turning back and no chance of reconciliation.

Conclusion

In the last decade, the Indian society has seen significant changes in the divorce process in India. However, attitudes about divorce vary across India. Even though divorce has become a more common term than it was previously, our society has not embraced it in the manner that it should be.

As a result, rather than making the difficult decision to divorce and be happy, couples remain silent and strive to improve their married lives. Divorce is still viewed as a war between right and wrong, rather than as a choice made by two people to live a better life in a better way.

Prior to considering divorce, understanding our rights and responsibilities, what happens when a divorce petition is filed is critical. The article looks at the many paths spouses may pursue divorce.

FAQs

How long does it take for a divorce to be granted in India?

The period of a divorce procedure is determined by the facts and circumstances of the case. It may take anything from 8 months to 2 years or more. This procedure is challenging to finish because it is a long and tedious legal and an emotional process. While fighting for their case, the parties experience conflicting emotions; moreover, their families, particularly children, are vulnerable.

On what basis is alimony calculated?

Spousal support, often known as alimony, is calculated using the following factors:

  • Petitioner's annual gross income.
  • Petitioner's annual net income.
  • The spouse's gross annual income.
  • The spouse's net annual income.
  • Payment is paid in child support by both contending parties for their children.
  • The duration of the marriage.

What is the Decree for Dissolving the Marriage?

The marriage is finally dissolved when the court passes a final judgement and decree. This document provides the judge's rulings on all of the case's problems. If the court finds sufficient evidence to pass a decree dissolving the marriage, the court will do so; however, if the court is not pleased with the evidence, the court will not do so.

What is the lawyer’s fee one expects to pay for divorce cases in India?

In general, the fees for filing a divorce case are not excessive; however, a lawyer who is hired to defend a divorce case may charge for his services. Divorce litigation may cost as little as ten thousand rupees, and it can cost as much as ten lakhs.

Categories:
Family Law & Divorce