A divorce can amount to be the most traumatic experience for any couple and can be a long-winded and costly procedure in India if the divorce is contested. Even if the couple mutually agrees to take a divorce, however, must have to prove to the court that they have been separated for a year before the court could consider their plea.
In India, as with many personal matters, divorce rules are somewhat connected to religion. Divorce among Hindus is controlled and governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936, and Christians by the Indian Divorce Act, 1869. The Special Marriage Act, 1956 governs all civil and inter-community marriages. The divorce law is not applicable in all situations.
Before dissolving a marriage a spouse can initiate to give a legal notice for divorce to the other one.
There are varied divorce petitions and by this article, understand the procedures on how to get a divorce in India. The divorce process, rules, and laws in India are a bit complicated. You can always get help from a legal expert.
TYPES OF DIVORCE PETITIONS
Divorce can be filed both ways – either by the mutual consent of the couple or by either spouse.
DIVORCE IN CASE OF MUTUAL CONSENT
A court will consider a divorce when the husband and wife both agree to the divorce mutually. The petition will only be accepted if the couple has been separated for over a year. They also must prove that they have not been able to live together. Often, in case of either husband or wife being reluctant to the divorce, they still agree in the end to such a divorce as it is relatively inexpensive and less traumatic than a contested divorce. Matters relating to children’s custody, maintenance, and property rights could be settled mutually.
A husband and a wife have to reach a consensus regarding three aspects.
- Alimony or maintenance issues of the first one. There is no minimum or maximum limit of support legally. Any figure can be decided or sometimes no figure.
- The second question is about the custody of the child. The custody of the child must undoubtedly be worked out between the two parties. Because this is the part that requires the greatest amount of time in divorce without mutual consent. Child custody can also be shared in a mutual consent divorce. Child custody can also be joint or exclusive but that will depend upon the understanding between the spouses.
- The third question is about the property. The husband and wife have to decide about who gets what part of the property. Both movable and immovable property is included in this. Everything must be divided. It does not have to be fair as long as it is agreed upon by both parties.
REFERRING TO THE SECTION: The duration of a divorce by mutual consent may vary from six to eighteen months, building upon the decision of the court. Courts usually prefer to end mutual consent divorces as soon as possible.
Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954 says that the couple should be living separately for over a year before the divorce proceedings can commence. Section 10A of the Divorce Act, 1869 says that the couple should be separated for at least two years for their petition to be accepted. It is not necessary to live in different locations, the spouses simply have to prove that they have not been living as husband and wife during this time period.
DIVORCE WITHOUT MUTUAL CONSENT
The petition can be filed on some specific grounds in case of a contested divorce. But the spouse filing for a divorce must have a valid reason for the same. Various reasons can be as follows, though some of them are inapplicable to all religions.
- Cruelty: Cruelty might be physical or mental. Hindu Divorce Laws mention that if one spouse has a reasonable doubt in their mind that the other spouse’s action is likely to be injurious or harmful, then there is sufficient basis for obtaining a divorce because of cruelty by the spouse.
- Adultery: In India, adultery committed by a man (i.e., having consensual sexual intercourse outside marriage) can be charged with a criminal offence. In this case, as a civil remedy, the wife can file for a divorce. On the contrary, a wife cannot be charged with a criminal offence if she commits adultery. Though the husband has the right to seek prosecution of the adulterer male for adultery.
- Desertion: Desertion by one spouse to the other without any reasonable cause (for example, cruelty) can be a reason for divorce. However, there should be proof of desertion. According to Hindu Laws, the period of desertion should be at least two years. However, Christians cannot file a divorce petition for this reason alone.
- Conversion: If one spouse converts to another religion the other spouse can seek a divorce in this case. There is no requirement of any time duration to be passed for filing a divorce in such a scenario.
- Mental Health: Incapability of the spouse in performing the normal duties required in a marriage due to mental illness, divorce can be filed by the spouse.
- Communicable Disease: In case the spouse suffers from a communicable disease, like HIV/AIDS, syphilis, gonorrhea, or virulent and incurable leprosy, the Hindu Divorce Laws in India allows to take divorce.
- Renouncing the world: if one spouse decides to renounce his/her married life and follow the path of renunciation (sannyasa), the aggrieved spouse can file for divorce.
- Presuming death: If one spouse has not heard from the other one and is not sure if he/she is alive for a period of at least seven years. Then the former spouse can obtain a judicial decree of divorce.
Before proceeding with anything, one should be aware to produce a divorce notice to his/her spouse. This step would clarify the emotions and also work as a platform to initiate your thoughts about discontinuing the marriage. A legal notice works as clarity to the other spouse about the future of the relationship. It makes the intentions clear from the side of one spouse about the future of the marriage. It can be understood as a formal communication which is the first step towards breaking the “husband and wife” connection.
In a marriage, the husband and wife have an obligation to support each other in all aspects. This does not always end up in divorce. The Code of Criminal Procedure, 1971, incorporates the right of maintenance that extends to the person who is economically dependent on the marriage. This includes either spouse, children, and even indigent parents.
Only if the husband has sufficient means, the claim of the wife will be considered. The court will consider the earning potential of the husband while deciding the alimony. Apart from earning potential, the court will also examine his ability to regenerate his fortune and his liabilities.