How To Get A Divorce In India
There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872.Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women(Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.
A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it clear broadly that the Divorce can be obtained by two ways:
- Divorce by Mutual Consent
- Contested Divorce
1. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses.
Duration of Divorce in Mutual Consent varies from one month to six months or more from States to States and as per the High Court directions.
2. Contested Divorce
As the name suggests, you will have to contest it. Indian laws in general recognizes cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years), Unsoundness of mind( of Incurable form), Impotency, renouncing the world, etc. Aggrieved party has to take one of the above grounds of divorce and will have to file the case in the Court of appropriate jurisdiction. Party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly.
ANNULMENT OF MARRIAGE:
Marriage in India can also be dissolved by means of Annulment. Procedure for annulment is same as that of Divorce except that the grounds for annulment are different than that of divorce. Grounds for annulment are fraud, pregnancy of wife by person other than the husband, impotency prior to the marriage and subsist even at the time of filing the case.
Once annulment is granted by the Indian Court, status of the parties remains as it was prior to the marriage.
There are certain form of marriages which are null and void despite the performance /solemnization of the same. Marriage is void under following circumstances:-
a) neither party has a spouse living at the time of the marriage
b) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
c) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Time duration for obtaining divorce varies from case to case & place to place. Generally speaking, contested divorce proceedings take approximately 18 to 24 months. Mutual Consent Divorce varies from 4 weeks to 7 months and more. In Delhi, Mutual Consent Divorce is possible with in two to four weeks.
Generally speaking procedure for obtaining Divorce in all forms of law (based on religion) is same with only bit of variation.
Maintenance flows from the concept of marriage. The question of maintenance is not dependent upon the divorce proceedings. Even before the case of divorce is filed, Indian Law provides the right to claim maintenance through the medium of the Court.
If we look at the entire gamut of Indian matrimonial law, we will find that the provisions for maintenance are available in following statues in case of Hindu Marriage:
- Section 125 Criminal Procedure Code( Cr.P.C.)
- Section 20 of Protection of women from Domestic Violence
- Section 18 of Hindu Adoption and Maintenance Act
- Section 24 of Hindu Marriage Act
- Section 25 of Hindu Marriage Act
A general conjoint reading of the aforesaid provision makes it amply clear that the objective of law is to provide maintenance to the Spouse who does not have sufficient means to maintain himself/herself by the one who has capacity and means to provide maintenance. The object is salutary and the scheme appreciating.
A cursory look at the past practices and belief is a clear cut indication of the fact that it is the man who has been bestowed with the power, capacity and capability to look after the family. Womanhood is expected to take care of the domestic chores while men were held responsible for all financial support to the family.
Law is expected to change with time. So, when women starting assuming proactive roles in the society, then maintenance law in India took care of this fact and brought the working men and women in the same pedestal. In number of cases, it was held that Husband is entitled to maintenance if he does not have sufficient means and the wife is working.
While awarding maintenance, Court considers following factors among other:
- Status of the husband and wife.
- Salary/ Income of the husband
- Salary /Income of the wife
- Liabilities of husband, if any
- Reasonable wants of claimant.
- Financial Background
- Movable & Immovable properties of the Husband
Though there is no fixed formula to arrive at the calculation of maintenance. Yet, the figure hovers around 30% to 40% of the salary/income.
It will be a no defence in case of maintenance that other spouse is at fault or marriage is solemnised on the strength of fraud, the other claimant wilfully and without reasonable cause left the society of the spouse, etc. Court awards maintenance on the strength of marriage and conduct of the party could play a part in determining the quantum of maintenance. Thus, as a matter of general rule maintenance is awarded.
The Job of Divorce/maintenance lawyer as well as the Court is to have an award of reasonable maintenance depending upon the status of the parties.
The secular mind-set of the Indian judicial system has initiated proclamation of various personal laws based on different religious faiths. Hindus, Christians and Muslims are governed under separate marriage acts and grounds for divorce in India.
Let us have a look at the various grounds for divorce in India.
The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.
Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act and such are included under cruelty.
Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.
Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.
No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.
The following are the grounds for divorce in India on which a petition can be filed only by the wife.
- If the husband has indulged in rape, bestiality and sodomy.
- If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
- A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
- If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
Based on the Dissolution of Muslim Marriage act, 1939, a Muslim woman can seek divorce on the following grounds for divorce in India.
- The husband’s whereabouts are unknown for a period of four years.
- The husband has failed to provide maintenance to the wife for at least two years.
- The husband has been under imprisonment for seven or more years.
- The husband is unable to meet the marital obligations.
- If the girl is married before fifteen and decides to end the relationship before she turns eighteen.
- The husband indulges in acts of cruelty.
Let us check out the following grounds of divorce mentioned under the Indian Divorce Act, 1869.
- Conversion to another religion
- One of the couples suffering from an unsound mind, leprosy or communicable venereal disease for at least two years before the filing of the divorce.
- Not been seen or heard alive for the period of seven or more years.
- Failure in observing the restitution of conjugal rights for at least two years.
- Inflicting cruelty and giving rise to mental anxiety that can be injurious to health and life.
- Wife can file a divorce based on the grounds of rape, sodomy and bestiality.
The following are the grounds for divorce in India included in the Parsi Marriage and Divorce Act, 1936 and the amendment of the same in 1988.
- Continuous absence of seven years.
- Non-consummation of marriage within one year.
- Unsound mind provided the other spouse was unaware of the fact at the time of marriage and the divorce must be filed within three years of marriage.
- Pregnancy by some other man provided the husband was unaware of the incident during the time of marriage and that he must not have undergone sexual intercourse after he came to know about the situation. The divorce must be filed within two years of marriage.
- Adultery, bigamy, fornication, rape, or any other type of perverse sexual act.
- Act of cruelty
- Suffering from venereal disease or forcing the wife into prostitution.
- Sentenced to prison for seven years or more
- Desertion for two or more years
- Non-resumption of cohabitation after passing an order of maintenance or a decree of judicial separation.
“Divorce Procedure & Laws for Hindus in India”
- by Prem Prakash Gupta
Divorce is a legal procedure whereby the married couple decides to separate and break all the vows that were taken during the sacred ceremony of a marriage. In India, divorce is still a taboo and is looked upon as a social stigma especially for women who take the step for divorce. Many a times, Hindu women in India resort to suicide or compromise in their marital life rather than opting divorce.
The procedure for divorce in India for Hindus is a long process, and somewhat tedious, given the numerous loop holes in the legal enactments. Mainly, the Hindu Marriage Act is framed to address the divorce related issues relating to the Hindu community in India.
First and foremost, the couple is usually advised to keep the marriage and if things don’t work out, then they go for divorce. Many a times, divorce in Hindu communities is looked upon as an empowerment to women to come out of the domestic abuse. In a recent article on yahoo.com, the writer mentions that the increasing rate of Indian divorces is the only measuring scale for women empowerment in India. Though this statement was widely contested and criticized, Hindu divorce is definitely a way out for women who are unable to cope with the pressures of domestic problems that may or may be restricted to the evils of dowry. By and large, divorce is looked upon as a tool in the hands of women, but even men do resort to divorce for various reasons.
The Hindu Marriage Act lays down the following procedure for Divorce where there is an option for the Hindu married couple to approach the courts of law for separation procedure.
- The pre condition for divorce for Hindus is that the couple should be living separately for at least one year.
- The first step in applying for a divorce is to hire a competent lawyer. The competency of the lawyer makes or breaks the case. The lawyer should be understanding and experienced in handling similar cases. He should be able to devote time and energy to the case.
- There are two types of approaches to file an application for divorce. One is “by mutual consent” and the other is “by contest”.
- The divorce application “by mutual consent” is easier as it takes lesser time as both husband and wife agrees for the grounds on which separation is sought. If the application is made “by content” it leaves room for the counter party to contest the application and drag the case for years together without a valid reason.
- The papers to be submitted includes the Income Tax returns for three years, details of present income, the purpose for applying the divorce, birth and family details and the details of the assets possessed
- A Vakalatnama has to be issued in favor of the lawyer to present the case.
- The applicant(s) should be open in discussions with the lawyer as to the marriage date, situations that compelled the divorce and the like. The more detailed the information is, the more easy it will be for the lawyer to file and fight the case in the applicant’s favor
- The procedure for divorce is time consuming in India and may last for at least a year or more in certain cases. Therefore, during this period, it will be very tough for the estranged couple to handle the emotional part.
- The grounds for Hindu divorce can be anything from adultery, desertion, mental disorder, renunciation, life threatening disease, no-resumption of co-habitation.
- Also the children, if any, will be mentally affected if a divorce happens. As tender brains, the separation will leave untold trauma in their minds against family values and love relations. Their future appears blank as the separation of their parents will leave them indecisive with whom to choose as their caretakers. There may be cases when the law declares one parent to take care of the child whereas the child himself prefers to live with the other.
- Once the application is made, the case comes up for hearing after six month during which period, the couple is asked to reconsider. If the couple does not appear in the court after this “cooling period” the application stands void automatically. Also, the couple can withdraw the application during these six months.
- During the divorce process, the couple should come to a conclusion related to custody of child, return of marriage gifts, post divorce maintenance and litigation expenses.
- The alimony is a relatively new concept in India, whereby the separating partner agrees to support the other financially. In mutual consent cases of divorce, the alimony amount is decided mutually, but in contested cases, the courts of law steps in to decide the alimony amounts, when the parties fail to come out with an alimony amount.
The payment of alimony in Hindu Divorce cases has time and again been criticized on the grounds of inherent flaws in the making if rules related to alimony by the law drafters. Recently, the case of Shah Bano has reestablished the consequences of improper legal procedure to claim alimony/ financial support and post divorce maintenance. In spite of all the problems in marriage, compromise is advised by many consultants. Divorce, according to them, should be resorted to, when it becomes ultimately necessary.
Divorce tougher than getting married
Swati Deshpande, TNN Dec 21, 2007, 02.50am IST
She is 27 years old, he 29. They lead separate lives, have separate sets of friends and interests that don't match. So, what's the catch? It's only their third month of marriage and, although both want out, the law is coming in their way. A trip to their lawyer revealed they could not even approach the court with a joint petition till they had a year of separation to show. And then they would have to wait six more months before the divorce decree would be passed to make them legally free to move on.
Kranti Sathe, family court lawyer in Mumbai, says young married couples are increasingly questioning the need for a year's separation before they can file a mutual-consent divorce petition. "Why do I have to wait that long?' is a constant query I face," she says. The Hindu Marriage Act, which governs marriages between Hindus, and the Special Marriage Act - a secular piece of legislation to solemnise both inter- and same-faith marriages - allow divorce by mutual consent.
But the fine print says there should be at least a year of separation before the divorce process can be kicked off in courts. The Indian Divorce Act, dealing with marriages of Christians, requires two years of separation. With changing times, and a fast-evolving society, is the year's separation necessary? Legal experts, social and marriage counsellors say it's time to take a fresh look at divorce laws, especially as six more months are required for the court to pass the final order.
So 18 months have to pass, at the very least, before a decision to end the marriage mutually can have legal sanction.
Sathe, who handles multiple divorce cases, notes: "There is a distinct rise in the number of mutual-consent petitions and the bulk comprises young newly married couples. Most first-time urban marriages take place when both parties are post-25 and, hence, if they decide mutually that their marriage is not working out, we must respect their decision to walk out of it."
Her views are echoed by other legal experts. Counsel Mahesh Jethmalani is categorical: "Once two adults go to court and say their marriage has broken down irretrievably, they should be granted a divorce immediately and be spared their misery. The law is no longer practical and, by implementing it, the process is being too technical. We are not talking about child marriages any more." "When a couple are married for more than a couple of years before they decide on a divorce, they easily state they have been living separately for a year even though they may have been sharing the same house and bed," a family court lawyer says. The law abroad permits the couple to live in the same household but they have to show they ate and slept separately.
In India, though the law is not very specific, the Supreme Court has laid down that the couple could be considered to be residing separately even if they are staying in the same household.
The other hitch is that the law requires both spouses to be present at the time of filing the joint petition and then meet the marriage counsellor in the court; they also have to be present when the decree is passed. Some judges of the family court in Bandra also come to the aid at times, waiving away the six-month wait.But this is done more when a contested petition or a petition for child custody, pending for years, has been converted midway into a consensual decision to split. The long wait in a contested plea is well-known.