The divorce process in India

Process of filing divorce in India

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Meaning of divorce

Marriage is a holy tie between a man and a woman. Marriage is a process by which two individuals bind themselves as partners for life. As in life, nothing comes with conformity and so is the case with the marriage. When one person walks out of the marriage, the marriage gets dissolved which is known as divorce.

According to the Indian marital laws, divorce has been defined as the legal dissolution of the marital union between a man and a woman.

In layman terms, divorce is when there is an end of marital ties between two people through the procedure before the court. 

Divorce laws vary from country to country, state to state, but in most countries, divorce always requires the sanction or permission of the court or any legal authority assigned with the process.

The divorce process is not a separate issue and may also include other issues like alimony[1], child custody, distribution of property, parenting time, etc.

Difference between Divorce and Judicial Separation

Many times, people get confused between the concept of divorce and judicial separation, but they are two different concepts. In the case of judicial separation, the marriage continues to exist and neither of them can remarry. The rights and obligations which arise from marriage are merely suspended in the case of judicial separation.

The basic reasons for divorce are as follows:

  • Adultery
  • Domestic Violence
  • Midlife Crisis
  • Infidelity
  • Addictions like gambling or alcoholism
  • Cohabitation

Laws governing divorce in India

India is a diverse country with a lot of religions, customs and cultures. The religions, customs and culture change as we move from North to South or from East to West. Like religious, custom and culture change, the grounds and procedure of divorce also change.

Divorce is a part of personal laws and there is no uniform law for divorce in India. Some of the laws which govern divorce in India are as follows: 

Special Marriage Act (1954)

The Special Marriage Act was passed in the year 1954, which is an inter-religious law permitting Indian Nationals to marry and divorce irrespective of their religion or faith.

Grounds for Divorce under Special Marriage Act

Section 27 of the Special Marriage Act 1954 provides grounds for divorce which are 

  • Adulteration 
  • Desertion
  • Cruelty
  • Insanity
  • Leprosy[3]
  • Presumed death
  • Venereal disease    

 Hindu Marriage Act (1955)

The Hindu Marriage Act is applicable to all the Hindus including a Virashaiva, a lingayat, or a follower of Brahmo or Arya Samaj. This Act does not apply to Hindu only but also extends to Buddhist, Jain or Sikh religion. This Act also includes any person who resides or is domiciled in the territory of India but is not a Muslim, Christian, Parsi or Jew by religion.

Grounds for divorce under this Act are:

Section 13 of the Hindu Marriage Act provides grounds, some of them are as follows:

  • Cruelty
  • Desertion
  • Conversion 
  • Unsoundness of mind
  • Leprosy etc

Divorce by Mutual Consent

Section 13(b) was Incorporated in the marriage laws (amendment) Act 1976. The petition for divorce by Mutual Consent is said when the parties in a court say that they have been living separately for one year or more and they want to get separate and jointly agreed to dissolve their marriage.

The Divorce Act ( 1869)

The divorce Act 1869 applies only to the Christians which are domiciled in India while they are filing the petition. Under this Act, Section 10 provides grounds for the dissolution of marriage.

The Muslim Law

The Muslim laws are governed by the holy book of Quran. The personal laws of Muslims like marriage, divorce, succession, etc are derived from their holy book.

In Muslim law, divorce was even considered when a man says three times the word ‘Talaq’ without giving any reason to his wife. This system was nullified by the Supreme Court in the famous case of Shayara Bano v/s Union of India And Ors.[4] In the year 2017.

As stated above, there are different personal laws which govern and provide grounds for divorce in the same way. The procedure of divorce in India is governed by these personal laws and the process of divorce in every religion is different

Process of getting a divorce in India:

Although different religions have a different process of getting a divorce in India, the two main process which is common are :

  • Divorce by Mutual Consent
  • Contested divorce

Divorce by Mutual Consent:

Divorce by Mutual Consent is said when both husband and wife or both the parties agree to a peaceful dissolution or separation of marriage. It is considered one of the simplest way of dissolving the marriage and coming out of it. 

The foremost component which is required for such kind of divorce is the consent of husband and wife. In mutual consent of divorce, there are certain aspects to which the husband and wife have to reach a consensus. The most important are:

  • Alimony/maintenance: In Indian law, there is no limit (minimum or maximum) of maintenance. It can be in any figure.
  • Child custody: In mutual consent divorce, child custody can be shared or joint or exclusive. The child custody completely depends upon the understanding of the spouses.

When this type of divorce can be filed?

The parties have to show that the spouses are living separately for 1 year or more than one year. The parties have to show that they have not been able to live together as husband and wife.

Where to file the petition?

The petition has to be filed in the family court of the city or the district court where both the parties lived for the last time.

How to file the divorce petition and what happens in the court?

The petition in Mutual Consent divorce is filed in the form of an affidavit which should be submitted in the family court. The court generally gives the time period of 6 months to the parties and adjourns the matter for this period.

After 6 months the parties have to again present themselves on the court. After the second motion, the only decree of divorce can be granted by the court.

The contested divorce procedure in India:

This type of divorce is said when one of the spouses without the consent of other spouse decide to divorce his/her spouse. The petition in the divorce case can be filed with the help of a lawyer. After the petition filed by one of the spouses, the court sends the notice to another spouse.

The divorce lawyer with the submission of the petition also submits the following documents:

  • Identity proof of the spouses
  • Details of the profession of the spouses
  • Income tax statement
  • Properties or assets owned by the spouses

The court after sending a notice to other spouses ask the party to come before the court and answer the divorce petition filed by other spouses.

The other areas which court considers relating to divorce are as follows:

  • Maintenance: If a woman finds herself and her child financially weak, she can ask for the maintenance by her husband. This can be filed under Section 125 of Crpc and under specific personal laws. The maintenance to the wife is provided after consideration of factors like the husband’s salary, husband’s living expenses, etc.
  • Child custody
  • Division of jointly owned party: When spouses have the joined property the court distributes it accordingly.

The procedure for divorce:

There is an important procedure that needs to be followed by every individual in India to take a divorce.

The procedure is as follows:

1. Drafting and filing of divorce petition:  The party who needs to take a divorce needs to file the petition before the appropriate court with the help of a lawyer.

        The divorce petition can be filed in three territorial courts of jurisdiction

  •  Place where both the parties lived for the last time.
  • The place where the husband is presently living
  • The place where the wife is presently living
  1.  Service of summons: The summons is provided through the court stating that the divorce proceedings have already been initiated by their spouses.
  2. Response: After Summon has been delivered to the other party, the party who has received the summon has to be present in the court on the date that has been mentioned in the summoning. If a party fails to appear in the Court the judge can give the decision on an ex parte basis.
  3. Trial: One of the important processes is of trial. In this process both the parties along with their witness and evidence appear in the Court where the court heard both the parties pleadings.
  4. Interim orders: In this, the petition is filed by any of either party to get a temporary order in respect of child custody or maintenance in front of the court and if the court gets satisfied with the hearing court passes the interim orders.
  5.  Argument: In this, both the parties’ lawyers argue in court to prove their client’s point
  6. Final order:  After completion of all the proceedings the court based on the evidence, witness and argument of lawyer give its final decision. If either of the party is not satisfied with the decision they are free to move to the higher courts.

Statutory laws governing divorce procedure in India:

In India marriage and divorce comes under personal law and are based on the customs of different religions.

  • The Hindus, Sikhs, Buddhist, and Jains are governed by the Hindu Marriage Act 1955
  • Muslims are governed by the Muslim law and the dissolution of Marriage Act 1939.
  • Christians are governed by the Indian Divorce Act 1869
  • Parsis are governed under the Parsi Marriage and Divorce Act, 1936

In past years, divorce was considered a sin and the result of this was that women have to face all the consequences of an unhappy marriage. But as the laws developed related to divorce, people have the right to end their unhappy marriage and live their life independently. But court and law have to be extra conscious while completing the divorce proceedings.

Sources:

https://indiankanoon.org/doc/115701246/

Endnotes

  1. Divorce law and legal definition,

US legal.com

  1. Husband’s or wife’s provision for a spouse after divorce
  2. A contagious disease that harms the different parts of the individual’s body.
  3. Shayara Bano vs Union Of India And Ors. Ministry Of on 22 August 2017, Writ petition No. 118 of 2016.

Aarushi Agarwal - ILS Law College

Arushi Agrawal

Author

Arushi hails from ILS Law College, Pune and she spends most of her time researching on new topics, art and craft, painting. Her Interest area lies in criminal and family law. For any clarifications, feedback, and advice, you can reach her at agrawalarushi463@gmail.com

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