Divorce law in India
Divorce law in India
Divorce is one of the most traumatic incidents in one’s life, not only because of the separation but of it taking the long-winded time and being an expensive affair. Even to the couple who decides mutually to file, a divorce goes through the same, as they need to prove in the court that they have mutually been separated for at least a year before the family court considers the plea.
In India, divorce is a personal matter, and it being connected to religion, the personal laws deal with it. Divorce in Hindu is governed by Hindu Marriage Act, 1955, in Muslims, it is governed by Dissolution of Muslim Marriages Act, 1939, in Parsis it is governed by the Parsi Marriage and Divorce Act, 1936, and in Christians, it is governed by the Christians by the Indian Divorce Act, 1869. All the other and inter-community marriages are governed by the Special Marriage Act, 1956.
Types of Divorce petition
Divorce with mutual consent
When both the parties, the husband and the wife agree to take a divorce, the court takes it as a mutual consent. However, as we discussed to the petition get accepted, the couple needs to be living separately for over one year or two (depends upon the relevant act), and they need to prove that they are not able to live together. Even if the court grants the divorce, but maintenance and custody of children (if any) remains an important matter.
There are three points on which a divorce takes a longer time; they are:
Alimony or Maintenance: The maintenance depends totally upon the demand of the wife and husband’s consent to it.
Child/children’s custody: The child custody can also be joint, depending upon the understanding of the couple.
Property: Property includes all types- movable properties, immovable properties, and bank accounts. Everything should be divided fairly or equally, and if not, it must be agreed upon by both parties.
The time duration that a divorce by mutual consent takes may vary, but it is between six months to 18 months, depending upon the court.
According to Hindu Marriage Act, 1955 Section 13(b) and Special Marriage Act, 1954 Section 28: Both the husband and the wife should be already living separately for more than one year before the divorce proceedings start.
According to the Divorce Act, 1869 Section 10: Both the husband and the wife should be already living separately for more than two years before the divorce proceedings start.
It is noteworthy that living separately does not compulsorily means living in different locations; it means the couple has to prove that they were not living as husband and wife during this separation period.
Divorce without mutual consent
In a divorce petition without mutual consent, there are certain grounds on which it can be filed. However, some of the grounds are only applicable to the husband. The grounds are:
Cruelty: Cruelty includes both physical and mental cruelty. Under the Hindu Divorce Laws in India, if one of the parties has a judicious apprehension in mind that another party is likely to be harmful, then it is a proper ground for getting a divorce due to cruelty if he/she can prove it in the court.
Adultery in India means a condition when a man has consensual sexual relation with any person out for his marriage. Adultery can be charged as a criminal offense in India. If adultery is done, a wife can file a divorce on that basis. But on the other hand, if in a marriage a wife commits adultery, she is not liable for any criminal offense. However, the husband can seek prosecution for the adultery of the adulterer male.
Deserting any of the spouses by another without reasonable cause can be a ground for a reason for divorce. But the intentions of the spouse who has deserted another must be proved in the court. According to Hindu Law, the lasting period of desertion should be at least two consecutive years.
Conversion of religion is another ground for divorce. If either of the spouses converts his/her religion, then a divorce can be considered by the court. It is noteworthy that it doesn’t need any particular time span to pass for filing a divorce under this ground.
Accounting mental illness, if either of the spouses is incapable of performing regular duties of a marriage, it can be considered as a ground for divorce. But this needs to be proved in court that the mental illness is up to that extend that regular matrimonial duties cannot be performed.
If either of the spouses is suffering from a communicable disease like HIV/AIDS, syphilis, leprosy, etc., then it can also be considered as a ground for divorce under the Hindu Divorce Law in India.
Renunciation of the World
In case any of the spouses choose to renounce his/her married life to opt the Sannyasa, another one can seek a divorce.
Presumption of Death
In case any of the spouses has not been heard being alive for a period of minimum seven years, another one can file a judicial decree of divorce.
Notice for divorce
In order to convey the intention to take legal steps for seeking a separation from the spouse, the divorce seeking party has to send a legal notice to another party. It is considered as formal communication that is the first step to break the legal relation.
Alimony for divorce
Maintenance is not only compulsory under Hindu Marriage and Divorce Law, but under the Code of Criminal Procedure, 1973 as well. Under the Code of Criminal Procedure, 1973, Section 125, it is the right of an economically dependent of a marriage to get maintenance. The dependents include spouses, dependent children, and parents.
Generally, it is the wife who seeks maintenance while deciding the alimony court tries to make the wife cope with her present living standards and considers her living standards before marriage as well. However, the payment or the amount of the alimony also hugely depends upon the husbands’ earning potentials and his ability to fulfill his liabilities.
Factors impacting alimony
It is the length of the marriage that mostly decides the tenure, amount, and the alimony of a divorce. In typical cases, a long existed marriage, the spouse entitles life-long alimony. Other factors affecting alimony are:
- The spouse’s age (the party who is entitled to receive the alimony).
- Financial conditions and earnings of the party who will give the alimony.
- Health condition of both the spouses.
- The spouse who will hold the child’s custody would either pay less alimony or will pay a bigger amount, in case the child is a minor.
Custody of children
Though it is true that generally in divorce cases, the mother has a more substantial side for child/children’s custody, the final decision of the court comes out by looking at the best interest of the child. In a divorce case, the court usually examines the best ability of both the spouses to be the best parent of the child.
Documents required for divorce petition
- Address proof of both the husband and the wife.
- The certificate of marriage.
- Passport size photographs of the husband and the wife.
- Evidence to prove that both the spouses are living separately since more than one or two years (depending upon different acts).
- Evidence to prove that both the husband and wife have failed all the attempts to reconcile the marriage.
- Income tax statement of last two or three years of both the spouses.
- Professional and earning details of both the spouses.
- Information of the family background of both the spouses.
- Detailed documents of the properties (both movable and immovable) of the petitioner.
The Honorable Supreme Court of India in January 2020 has removed the duration of six months as the statutory cooling period. Earlier, it was a compulsion before granting a divorce, provisioned under the Hindu Marriage Act of 1955. After this judgment, if in case there seem no possibilities of reconciliation between the divorce seeking parties.