Divorce Law in India - An Overview

What and How of Divorce in India

 

Divorce is the legal dissolution i.e. breaking up of marriage.

India is a land of various religions and varied cultures, so the laws governing the divorce vary accordingly. The Hindu Marriage Act, 1955 governs and regulates the terms of divorce concerning All Hindus as well as Buddhists, Sikhs and Jains. The Divorce Act 1869 governs divorce terms for Christians; Parsi Marriage and Divorce Act 1936 govern Parsis; The Dissolution of Muslim Marriages Act 1939 governs divorce terms in Muslims.

On the other hand, the Special Marriage Act, 1956 governs and regulates the terms of divorce concerning Spouses belonging to different communities and castes. Also the Foreign Marriage Act 1969 regulates the terms of divorce if one of the spouses belong to a different country. 

 

Divorce laws in India are majorly divided into:  ‘Divorce by Mutual Consent’, ‘Contested Divorce’ and ‘Void Marriages’. 

 

1. Divorce by Mutual Consent

Mutual Consent means that both the partners mutually agreed to separate on peaceful terms. It is the easiest way of dissolving the marriage without much problem. There are two issues on which the parties need to have mutual consent for; first is alimony and second is child custody. There is no maximum or minimum limit if the amount is mutually agreed upon. The wife can agree to no alimony amount at all, there are no obligations. The matter of child custody can be solved at mutual consent; individual custody of either wife or husband or joint custody, they can decide and stated while filing for divorce.

One of the most important terms or obligations for filing divorce petition is that the couples need to file for it after one year from the date of marriage. They can't be earlier than that. The court needs to be sure that the couples don’t want to live together anymore. They also need to make the court that they have been living separately for one year and they don't wish to remain husband-wife.

For seeking divorce on mutual consent the parties are required to file for divorce in court through a divorce lawyer. 

The court in which the divorce petition is filed should be the family court of the area in which the partners lived together or is their matrimonial home. After filing affidavit in the court, the court records their statements and gives the date of next hearing 6 months later on and then again confirms about the mutual consent of the parties after that time period. If the parties finally agrees to divorce it is granted to them. 

In case one of the parties decides to withdraw their mutual consent, they can do it between the period of 6 months granted to them by filing his/her stand in the court through an application. In that case, the marriage will not be annulled after 6 months of time and a normal divorce application will be required to file by the partner asking for separation.

In such case, only certain situations/exceptions can grant the other party a divorce like domestic violence; cruelty; willful sexual intercourse with another person; other partner being of unsound mind; conversion of religion; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.

 

2. Contested Divorce

Contested Divorce happens in a situation when one of the spouses is not ready to go ahead with the marriage and wants to dissolve it. It is an official manner for seeking divorce when your spouse is not agreeable to the idea of divorce. Here the important point to be focused on is that the wish of the partner seeking divorce does not matter and he/she needs to have strong reasons to get out of marriage, something that makes the person fed up/ annoyed with his/her spouse. It can be conduct, actions or omissions on the behalf of the spouse or failure to discharge expected reasonable behavior from him/her. 

The reasons can be as follows; may not be applicable for some religions:

1.   Cruelty(mental or physical)

2.  Adultery(extra marital affair in simple terms)

3.  Desertion(if no reasonable reason is involved)

4.  Conversion(divorce petition can immediate)

5.  Mental Disorder(incapability in performing normal duties of marriage)

6.  Communicable Disease (such as HIV/AIDS, syphilis, gonorrhea, etc.)

7.  Renunciation of the World(Sanyasa in simple language)

8.  Presumption of Death

Without a mutual consent, when you seek divorce the procedures get a bit more complex than within mutual consent. Some of the usual steps involved in contested divorce proceedings are:

·    Preparing documentation and all affidavits to file in court to seek a divorce.

·    Responses to the application by spouses

·    Getting a divorce attorney/lawyer for fighting from your behalf

·   Information gathering began from recording to examining the stances of witnesses and spouses

·    Pre-trial hearings are conducted

·    The clients and attorneys sit back and try for some settlements 

·    If the negotiations fails, then they go for trial 

·    Finalizing of the judgment by court 

·    Appealing, if any of the party disagree with judgment 

In contested divorce there are some restraints on alimony and child custody is also contested and decision is taken by the court for child's interest. 

In alimony, any of the people who are financially dependent on the marriage are provided with maintenance by another one. The person can be spouse, dependent children or even indigent parents.

Some ofthe factors to be kept in mind while determining the alimony are:

·     Age of the person receiving alimony

·     Earning status of person paying for the alimony

·     Health status of the spouse receiving the alimony 

·     The child custody also determines the amount of alimony

The decision of the custody of a child is taken by courts by taking into account the ability of either of the parents to take care of the child. While the father is generally expected to take care of the finances of the child, the mothers get custody most of the time.

 

3. Void Marriages

A void marriage is that marriage which can be deemed illegal since its inception. No laws of a legal marriage can be applied to it. It is a case where all the procedures i.e. traditional rituals of marriage are performed by the girl and boy but it will not be a marriage in the eyes of law.

Following are the cases in which the marriage shall be considered null and void are: 

~Bigamy

If either of the spouses have a spouse alive from another marriage not divorced then the present marriage will be considered null and void. One person cannot be married to two at the same time.

~Persons falling within degrees of prohibited relationship

If both the parties i.e. the girl and boy have Lineal ascendants i.e. genetical relations from both the mother’s and father’s side.

~Sapinda relations

If the parties are sapindas to each other then according to the law such marriage are unlawful and thus void. 

There are various laws and legal issues relating to maintenance of a wife after declaring the marriage null and void and legitimacy of child born out of it.

 

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