Divorce Laws in India

Introduction

Divorce is the most traumatic situation in the life of a legally married couple. Not only it affects the emotional mindset of the person, in fact it is financially draining and time taking process. If a couple agrees to separate mutually, they have to first show i.e., to provide the court with evidence that they are living separately from a particular period of time, usually a year. Then only the court takes up the plea. It is just because in ancient times in many legal histories, marriage has been stated as a divine power, a relationship of care, loyalty, etc.

But, in India the process of divorce depends upon religion. As our country is a ‘Secular’ state, the word itself depicts that a variety of religions and religious norms will be found. In fact, in many cases where there is a conflict between two religious beliefs, the law remains silent on those bases. Likewise, for conducting or having a divorce, each religion has its own processes and beliefs. Currently in India, marriages of Hindus, Buddhists, Sikhs, and Jains are governed by the Hindu Marriage Act, 1955, Muslims by Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by Indian Divorce Act, 1869.

Herein, we will talk about how divorce is taken in India. The laws related to divorce are a little complicated in India due to the reason I have already stated earlier. All the laws for divorce-related to different religion governing in the country are one or the other contain similar grounds and the way petition for divorce should be filed.

Divorce Petition

A couple can mutually consent to take divorce or either of the spouse can file a petition for divorce without the consent of another one.

Mutual Consent

When both husband and wife agree to take a divorce, the court can hear the plea. However, to make the court to hear the plea, both of them have to prove that they are living apart from one year or so as per the relevant act. These types of divorce are comparatively less expensive and are less traumatic than contesting a divorce. Mutual agreement in the case of a child, or property is done afterward.

The divorce given under mutual consent varies from a period of 6 to 18 months depending upon the time court takes to give a decision. Courts usually give their decision in the cases where mutual consent is there between both the spouse.

Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, states that the couple should at least living separately for a term of one year before the court proceedings begin. However, in the Indian Divorce Act, 1869 Section 10A states that the couple should be living separately for two years. Provided that the court does not need to know whether they are living in the same house, at the same place or not. Court only need proof that they were not living together as husband and wife.

Without Mutual Consent

In cases where the petition is filed by one of the spouses, without the consent of others, the reason for the same has to be made. It isn’t like that husband and wife can ask for divorce without giving any reason. Below are some of the grounds mentioned from which some are not related to any religion.

I. Adultery

It is one of the important grounds for divorce. Though, Supreme Court has waived off the criminality of it, but, any of the spouses can ask for a divorce if the other one has a consensual sexual intercourse outside the marriage.

II. Cruelty

It can be termed as both physical or mental cruelty. According to the Hindu Marriage Act, if one spouse thinks and feels that the conduct of other spouses will be harmful and injurious to them, then it can act as a sufficient ground for obtaining a divorce.

III. Desertion

One of the partners deserting the other one without any reasonable cause will amount to sufficient ground for divorce. Provided, the proof for desertion by the partner should be produced in the court. In Hindu Law, it is a ground for divorce, while, Christians cannot claim divorce on this ground.

IV. Mental Disorder

If the spouse is dealing with such type of mental illness that it is not possible for the person to perform normal duties of the marriage, then it can be a valid ground for obtaining a divorce. Provided that such disorder cannot be cured and is there for a long period of time.

V. Conversion

Divorce can be pleaded by the spouse if the other partner has changed their religion. No time is required to file a plea in the court for obtaining a divorce.

VI. Renunciation

If the spouse renounces his/her marriage and opt for sannyasa, then the other can file a case for divorce.

VII. Communicable Disease

If one of the spouses is having a communicable disease like HIV/AIDS, gonorrhea, syphilis, or incurable form of leprosy, then the Law states that the other partner can opt for divorce.

VIII. Presumption of Death

A spouse who is living may opt for a decree of divorce if he/she does not listen about the whereabouts about spouse for a period not less than seven(7) years, about whom he/she may have listened if alive.

Notice of Divorce

Going into any procedure or terms of the divorce, the notice for the same has to be issued and to be delivered or given to the spouse. This has to be done to clarify the thoughts for initiation for the court proceedings. This will give a clear picture to both the spouse as to what all to be done and for giving clarity for future relationships.

A notice is a ‘formal communication’ for initiating court proceedings and merely a sign to dissolve or severe “husband-wife” relationship.

Mutual Agreements

There are many situations on which mutual agreement has to take place in the case of divorce. If one the spouse is not having a source of income then alimony has to be provided by the other one for the maintenance of his/her health and also to take care of the child if any and having the custody for proper upbringing of them.

Same like that, if there is a property which is being shared between them being in a marital relationship, then the property should be either taken by one of the spouses or it should be sold and money should be equally divided between them if both of them were having a share in it.

And the last but not the least, custody of a child, if any. It was seen earlier that most of the time mothers use to get the custody of a child. But it is not the case now. Both have to give a mutual consent for the custody, and if not, then the court has to see for the best possible interest for the child. Generally, a non-working mother has the custody and financial support is given by the father.

Cost of Divorce

Court fees are somehow low in these cases. Only the fees of lawyers may vary from thousand to lakhs. Lawyers take fees for appearing in the court and for all other work they do related to the case.

Required Documents

1. Address proof of both the spouse.
2. Certificate of marriage.
3. 4 passport size photos of marriage.
4. Evidence of not living together for one year.
5. Evidence of failure of reconciliation.
6. 2 to 3 years of income tax statement.
7. Detail of profession and salary.
8. Information regarding property and assets owned by the petitioner.
9. Family background.