Divorce laws in India

Section 13 (1) of the Hindu Marriage Act says that "Any

marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by
either the husband or the wife, be dissolved by a decree of
divorce on the ground that the other party:

[(i) has, after the solemnization of the marriage, had

voluntary sexual intercourse with any person other than his
or her spouse; or]

[(a) has, after the solemnization of the marriage, treated

the petitioner with cruelty; or]

[(ib) has deserted the petitioner for a continuous period of

not less than two years immediately preceding the
presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another

religion; or

(iii) has been incurable of unsound mind, or has been

suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with the
respondent."

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The legally or formally recognized union of two people (a

man and a woman) as partners in a personal relationship is
marriage and the legal or formal ending of a marriage is
divorce.

A divorce is the most disturbing event for any couple. The

entire procedure of separation which begins with dealing
with emotional trauma to fighting in the dreadful courts for
getting a divorce decree is obviously a difficult episode to
overcome.

However, with the advancement of laws and social awareness,

the divorce procedure has been simplified in India to help
couples come out of unwanted relationships.

In India, marriage and divorce are governed by personal

laws. Personal laws are connected to the religion of the
people. For Hindus, Buddhists, Sikhs, and Jains divorce is
governed by the Hindu Marriage Act , 1955. The Muslim,
Christian, and Parsi communities, on the other hand, have
different laws governing marriage and divorce. For couples
belonging to different communities and castes, marriage and
divorce are governed by the Special Marriage Act, 1956.
There is also the Foreign Marriage Act, 1969, governing
divorce laws in marriages where either spouse is of a
different nationality.

In India, you can obtain a divorce in two ways-

1. Divorce by mutual consent

2. Divorce without mutual consent i.e. contested divorce

MUTUAL CONSENT DIVORCE

In situations where both husband and wife are willing to end

the marriage, they can opt for mutual consent divorce . Both
the husband and wife agree to a peaceful separation. Mutual
Consent Divorce is the simplest way of dissolving the
marriage legally. The only ingredient is the mutual consent
of each of the spouses. The only two aspects on which the
couple has to reach a consensus are alimony or maintenance
and child custody. As per the law, there is no minimum or a
maximum limit set for maintenance. This amount can be worked
out effectively between the parties. Child custody in Mutual
Consent Divorce can be exclusive or joint depending on the
understanding of the couple. Section- 13 (B) of the Hindu
Marriage Act states that the parties can seek divorce by
mutual consent by filing a petition before the family court.

Here are certain common answers to questions with respect to

mutual consent divorce:

When can a mutual consent divorce be filed?

The parties intending to end a marriage are required to wait

for at least one year from the date of marriage. The couple
has to show proof that they have been living separately for
a period of one year or more before filing the petition for
divorce and that during this one year of separation they
have not been able to live together as husband and wife.

Where do you file the divorce petition?

As per Section 19 of the Hindu Marriage Act, 1955 you file

the divorce petition before a civil court of a district-

1. Where the couple seeking divorce last resided together

2. Where the marriage took place

3. Where the wife is residing at present

4. Where the respondent(opposite party) is residing at the

time of presentation of the petition.

The district court here implies the family courts that are
established under the Family Courts Act, 1984.

How do you file a divorce petition by mutual consent?

The petition should be in the form of an affidavit and is to

be submitted to the family court. The court grants divorce
after the filing is done and the statements of the couple
are recorded. After the said six months the couple has to
visit the court again for making a second motion confirming
the mutual consent divorce filed earlier. It is only after
this second motion that a decree of divorce is granted by
the court.

After the recent judgment of the Supreme Court, a Hindu

couple needs to wait for six months for a separation order,
the marriage can be terminated legally just in a week. The
cooling-off period is not mandatory and can be waived off.
Where the parties have been living separately for at least a
year there is no requirement to wait further for another six
months as this would only prolong the situation.

Can either of the party withdraw the mutual consent petition

after filing it in court?

During the period of 6 months when the divorce petition is

pending in the court, any of the spouses is at complete
liberty to withdraw the divorce petition by filing an
application before the court stating that he/she does not
wish to seek divorce by mutual consent. In such
circumstances, the court grants no divorce decree.

Can I remarry without getting a divorce from existing

partner?

No, remarriage without getting a divorce is a punishable

offense with seven years imprisonment.

Can I apply for divorce in an event of desertion from my

spouse?

If there is sufficient proof of the desertion (absence of

spouse without any information to the other spouse about his
whereabouts for a continuous period of 7 years), a divorce
petition can be filed in court.

When can I remarry after divorce?

It depends on the nature of the judgment and after the

expiry of three months from the date of such judgment
without any appeal filed by the other spouse. You can
remarry.

How much time does the mutual consent divorce take including
the passing of the judgment?

On average, a divorce takes between 6 months to 1 year from

the date of filing of the petition. However, it varies on
the facts and circumstances of the case.

Related Post: How to End a Marriage in India?

CONTESTED DIVORCE

In case of a contested divorce, certain specific grounds are

required to be fulfilled before the filing of a petition.
The reasons for divorce are as follows although not all are
applicable to all religions.

Cruelty

Cruelty can be physical or mental. According to the Hindu

Divorce Laws in India, if one spouse has a reasonable fear
in the mind that the partner's conduct in all likelihood is
injurious or harmful, then there is sufficient ground for
obtaining divorce due to cruelty by the spouse.

Adultery

Under Indian laws, if a man who commits adultery (consensual

sexual intercourse outside of marriage) can be punished with
a criminal offense. The wife may, also, file for divorce as
another remedy. However, if a wife commits adultery, she
cannot be charged with a criminal offense, though the
husband can seek prosecution of the adulterer male for
adultery.
Mental Disorder

If either spouse is incapable of performing the normal

duties expected in a marriage because of any mental illness
then it becomes a valid ground for divorce.

Desertion

A spouse leaving/ abandoning the other without reasonable

cause is a valid ground for divorce. However, the spouse who
abandons the other should do so in the desert and there
should be evidence of it. For instance, as per Hindu laws,
the desertion must last for at least 2 continuous years.

Communicable Disease

Under the Hindu Divorce Laws, if a spouse suffers from a

communicable disease, such as HIV/AIDS, syphilis, gonorrhea
or a virulent and incurable form of leprosy then it is a
valid ground for divorce.

Presumption of Death

If either of the spouses has not been heard of by the other

spouse as being alive for a period of at least seven years,
then the spouse who is alive can obtain a divorce.

Conversion

If a spouse converts to another religion then the partner

can seek a divorce. This reason does not require any time
limit to have passed before a divorce can be filed.

Renunciation of the World

If either of the spouses surrenders his/her married life and

chooses to be a sanyasi, the aggrieved spouse may obtain a
divorce on this ground.

To understand contested divorce better, some common

questions have been answered below:

What are the numerous steps involved in pursuing a contested

divorce?
With a contested divorce, a couple has to go through various
steps before getting a divorce which include:

- To prepare, file, and deliver the divorce petition (legal

paperwork and grounds for the divorce)

- Reply to the petition

- Hiring an advocate

- Information and investigation for the divorce process

- Settlements and negotiations between the advocates of the

couple (during the settlement phase, spouses are often
unable to resolve issues.

Although the divorce judge may encourage spouses to work

things out when that doesn't happen the next step is divorce
court. If settlement talks are unsuccessful, prepare for a
court trial. Complete court proceedings where both spouses
present witnesses who are then cross-examined by their
lawyers and present arguments. After the trial is over, the
court will issue a final order stating all of the judge's
decisions which will ultimately finalize the divorce. The
decision can be challenged as an appeal, if there is any
dispute on the trial judge's decision(s) or if either spouse
feels the need for it.

What are the various documents required to file a petition

for a contested divorce?

- Marriage certificate

- Address proof of wife

- Address proof of husband

- Address of matrimonial home

- 4 passport size photographs of marriage

- Evidence proving the couple has been living separately for

more than 1 year

- Evidence relating to the failed attempts at reconciliation

- Income tax statements for the last 2-3 years

- Details of the profession and present salaries

- Information about the family of both the spouses

What are the different limitations in the calculation of

alimony?

The right of maintenance extends to any person economically

dependent on the other spouse in the marriage. When deciding
the alimony, the court will take into account the earning
potential of the spouse who is entitled to pay alimony and
the liabilities.

Various constraints determining the alimony are:

1. The status and position of the husband, his income,

his assets, and his lifestyle.

2. The reasonable wants of the wife.

3. The wife's own income or earnings.

What are the provisions relating to child custody?

Courts generally agree to the decision of the parents in a

mutual consent divorce, however, the courts are supposed to
see to the best interest of the child.

In a contested divorce, the courts examine the ability of

the parents of the child. For instance, money is not the
most important factor that is considered, non-working
mothers are often given custody of the child with the father
expected to provide financial assistance.

VOID MARRIAGES

The following grounds shall render a marriage void/ illegal:

Bigamy

The offense of marrying someone while already married to

another person is bigamy. The subsequent marriage is an
illegal marriage. It is void-ab-initio and non-existent.

Lineal ascendants are to be seen from both sides, i.e. from

the father's side as well as from the mother's side. So,
both the father and mother are lineal ascendants and fall in
degrees of disallowed relationships.

Sapinda relations
Presuming A to be a boy. Since he is regarded as one
generation, relatives falling in four more generations
upwards from him from the side of his father shall be his
Sapinda relations. Therefore, A's father, A's grandfather,
A's great grandfather, and the father of A's great
grandfather shall all be A's Sapinda relations. But on the
mother's side, this chain is to extend to only three
generations that include A.

Therefore, A's mother and A's maternal grandmother only

shall be A's Sapinda relations from the mother's side, 'A'
himself being one generation. Marriages of such
relationships are void.

A few common questions about void marriages have been

answered below:

How will a wife get maintenance in such cases?

A very important question is whether the wife whose marriage

is void has a right to claim maintenance from her husband.
It is generally held that even in such cases, the wife is
entitled to maintenance.

The generally accepted law in such cases is that the wife is

entitled to maintenance under Section- 18 of the Hindu
Adoptions and Maintenance Act and also under Section- 24 of
the Hindu Marriage Act.

Are the children legitimate who are born from such

marriages?

According to law, children are legitimate.

Section-16 of the Hindu Marriage Act states that if a child

is born out of a void marriage then that child will not be
considered illegitimate but shall be considered legitimate
despite the marriage being void from its inception. The
section provides relief to the children of void marriages.

How can a Lawyer help you?

Divorce is a stressful time for everyone involved. Hiring an

attorney to complete a divorce is one way to reduce the
stress of the divorce. While the attorney will need to
gather information from you regarding the case, he or she
will also take care of all the paperwork, allowing you more
time to take care of yourself and your family. An
experienced divorce attorney can give you expert advice on
how to handle your divorce owing to his years of experience
in handling such cases.