Procedure of a Divorce in India

Introduction:

Marriage is the social union between two individuals that forms the foundation of the family for many societies. A man and women when they come together they complete each other as a man cannot have a material existence until he has been married and had a wife. In several western societies, Marriage is understood as a social contract between two individuals, where they come and bind themselves together as a partner for life and are culturally recognized as spouses.

Marriage is considered to be important for a sexual relationship in a bond that is socially sanctioned. As it is designed to produce children and to socialize them successfully. If seen globally, polygamy is no longer a form of marriage in many existing societies also in some places it has been debated that marriage is an unnecessary legal fiction. Marriage can also be canceled and annulled which means that it will be considered invalid from the very beginning

Since the latter decades of the 20th century, there have been many traditional assumptions about nature and also the purpose of marriage and family has been challenged. Most particularly it was the gay rights advocacy groups who do not agree with the notion that the marriage could be heterosexual.

Meaning, Concept, and Grounds for Divorce

As one person walks out of the marriage, it leads to the termination of marriage which is known as Divorce. In common layman words divorce is the end of the matrimonial ties between two individuals through a legal procedure before the court. Divorce is an old and venerable institution and the most traumatic occurrence for any couple. According to the Indian Marital laws, divorce is the legal dissolution of the marital union between two individuals. The laws for divorce keep differing from country to country, from state to state, and also sometimes in terms of religion too. In many countries, divorce requires the permission of the court, legal sanction, or any legal authority. The process of divorce is not a separate issue other than the husband’s wife’s sanction it also includes division of assets, property, child custody, parenting time, and alimony.

There are certain grounds to attain divorce and those are as follows:

• Adultery
• Desertion
• Insanity
• Conversion
• Cruelty
• Renunciation
• Venereal Disease
• Presumption of Death

In the case of ‘Bhagwat Pitambar Borse vs. Anusayabai Bhagwat Borse’[1] (February 8, 2018) the Bombay High Court had granted a divorce in favor of the husband. The divorce was granted on the ground of adultery and it was in the view of provisions of Section 125(4)[2] and (5)[3] of CrPC hence the wife was not entitled to maintenance.

Divorce and Judicial Separation

Judicial Separation is not the same as divorce. These two words are completely different common terms and concepts that are most often misunderstood by many people. In Judicial separation despite being legally married the married couples are formally separated from each other.

This separation is done by a legal process through a decree of the court or by agreement between the parties. Judicial separation is also called as ‘divorce from bed and board’.

Laws governing Divorce in India

Marriage and Divorce are personal laws so therefore in India there are no uniform laws for divorce. India is a goldmine of customs and cultures. Customs, cultures, and ethics keep varying like we keep moving from north to south or from east to west. The laws governing divorce in India are as follows:

Special Marriage Act, 1954

This act was passed in 1954 and it deals with inter-caste and inter-religion marriages and applies to all the Indian nationals who live abroad. Section 27 of the Special Marriage Act 1954[4] states the grounds for divorce which are as follows:

• Cruelty
• Insanity
• Adulteration
• Desertion
• Presumed Death
• Imprisonment
• Leprosy
• Venereal Disease

The Hindu Marriage Act, 1955

This Act applies to all the Hindus including Sikhs, Buddhists, or Jains by religion. But doesn’t include Christians, Parsis, Muslims, or Jews by religion. Section 13 of the Hindu Marriage Act 1955[5] states the grounds for divorce and those are the following:

• Cruelty
• Adultery
• Desertion
• Religion Conversion
• Unsoundness of mind

The Divorce Act, 1869

This Act applies to the Christians only and they can confer the court’s jurisdiction in matrimonial matters. Section 10[6]of this act provides the grounds for divorce which are as follows:

• Adultery
• Unsoundness of mind
• Religion conversion

Muslim Law

Muslim laws are personal laws and are governed by their holy book ‘Quran’. In Muslim law, a marriage is a civil contract and is called a Nikaah. The dissolution of marriage can be done at the occurrence of husband by saying “Talaaq” thrice, by women “Khula” or through mutual consent “Mubarat”.

The Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed to protect the rights of women who have been divorced or have obtained a divorce from their former husbands. In the case of ‘Danial Latifi vs Union of India’ [7]the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged. The Supreme Court read this Act with Article 14 and 15 which prevents discrimination based on sex and also held that the framers intention could not have been to deprive Muslim women of their rights. Also, Section 3(1)(a) of the said act provides ‘a reasonable and fair provision and maintenance to be made and paid to her within the iddah period by her former husband’.

Types of Divorce in India

Divorce can be done in many ways. There are two types of Divorce in India i.e.

1. Divorce by Mutual Consent
2. Contested Divorce

Divorce by Mutual Consent

When both the spouses agree to a peaceful dissolution or they aren’t able to live with each other anymore and mutually decide to end their marriage then it is called Divorce by mutual consent. It is the most easiest way to come out of the marriage as compared to Contested Divorce. The husband and the wife have to reach a certain consensus in order to obtain the divorce by mutual consent, those aspects are:

1) Alimony/Maintenance

2) Child Custody

Divorce by mutual consent is talked about under Section 13(B) of the Hindu Marriage Act, 1955[8] and Section 28 of the Special Marriage Act 1954[9]. The husband and wife should be separated for a year or two in order to file a joint petition of divorce with mutual consent.

Contested Divorce

When one of the spouses decides to divorce the other without his consent then it is said to be a contested divorce. Therefore every couple has certain rights when they get married and when these rights are contravened by one then the other has to right to file a divorce petition.

General Procedure for Divorce

To obtain a divorce every citizen of India has to follow a certain procedure:

Step 1: Drafting and filing of divorce petition

The party whosoever wants a divorce needs to file a petition before the court with appropriate court fees and also with the help of a lawyer. The divorce petition can be filed in three territorial jurisdiction of courts:

• The last living place of the Husband and wife
• The place where the husband is living presently
• The place where the wife is living presently

Step 2: Service of Summons

After filing the divorce petition the next step is serving the summons through a notice which means that the divorce proceedings have already been begun by their spouses. They are served through speed post with a covering letter.

Step 3: Response

After the summons has been received by the party, the spouse against whom the divorce has been filed needs to appear before the court on the date that has been mentioned on the summons. And if the spouse fails to appear before the court on the said date then the court can give an ex- parte opportunity to the petitioner and after that pass an order on ex parte basis and can close the divorce process.

Step 4: Trial

The next process is the Trial which is a very important procedure. After the petitions have been submitted, both parties along with their witness and evidence appear in the court. The lawyers will then conduct the cross-examination and examination-in-chief of the spouses as well as of the evidences.

Step 5: Interim Orders

Another aspect of the process of divorce is Interim Orders. In this, the petition is filed by any of the parties to receive a temporary order in respect of child custody and maintenance before the court during the divorce proceedings, and then after the hearing, if the court is satisfied it shall pass the interim orders.

Step 6: Arguments

This is the most crucial stage as it determines who wins the divorce proceedings. I this stage the respective lawyers of both the parties argues before the court to state the contentions of their clients.

Step 7: Final Order

The last step of the divorce process is the pronouncement of the final order. After the completion of the preceding stage, the court passes the final order and if any party is not satisfied with the order passed then they can move on to higher courts.

Aspects of Divorce

During a divorce, certain factors are very important to be sorted and those are:

• Alimony/Maintenance
• Custody of child
• Joint Custody
• Physical Custody
• Legal Custody
• Third-Party Custody
• Settlement of property

Conclusion

The concept of divorce was always considered as a sin all the past years and also was an extremist for Indian society.

Presently laws relating to divorce have developed quite a lot. The countries with higher divorce rates are also the country with a higher rate for women empowerment. Everyone has the right to come out of their unhappy marriage and live their life independently. But it is also the duty of the court and lawmakers to be very cautious while deciding the divorce proceedings.

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References:

[1] Criminal W.P. No. 724 of 2016

[2] (4)-No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”

[3] (5)-On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

[4] https://indiankanoon.org/doc/695509/

[5] S. 13 Divorce https://indiankanoon.org/doc/1284729/

[6] S.10 Grounds for dissolution of marriage https://indiankanoon.org/doc/1387951/

[7] WP (Civil) 868 of 1986

[8] S. 13B Divorce by mutual consent https://indiankanoon.org/doc/439618/

[9] S. 28 Divorce by mutual consent https://indiankanoon.org/doc/1301592/#:~:text=(1)%20Subject%20to%20the%20provisions,together%20and%20that%20they%20have

Other Sources:

1. https://www.shoneekapoor.com/divorce-granted-in-favor-of-husband-maintenance-to-wife-dismissed/
2. https://indiankanoon.org/doc/410660/
3. https://www.indiatoday.in/information/story/stey-by-step-procedure-to-file-for-a-mutual-divorce-1534492-2019-05-27
4. https://economictimes.indiatimes.com/wealth/save/divorce-costs-documents-needed-and-steps-involved/articleshow/73608055.cms?from=mdr