Divorce in India

DIVORCE 

By Adv. Sandigdha Mishra

Marriage was considered to be an imperishable  tie between the husband and wife. But Divorce is among the most traumatic occurrences for any husband and wife.

Divorce sometimes entails the canceling or reorganizing of the legal duties and responsibilities of the wedding, so dissolving the bonds of matrimony between a man and wife underneath the rule of law of the particular country or state. 

Divorce is the realisation of husband and wife because no longer they cannot live together. That decision may be affected by their children and the family surrounded by them.

In India, as with most personal matters, rules for divorce are connected to religion. Divorce among Hindus, Buddhists, Sikhs and Jains is 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. All civil and inter-community marriages are governed by the Special Marriage Act, 1956. The divorce law works with some conditions and not in all situations. A spouse can initiate to give a legal notice for divorce to the other spouse before ending the husband and wife relationship.

There are three aspects between a husband and a wife when they are looking for divorce: 

The first viewpoint is about the minimum and maximum amount of time which the couple needs from one another.

The second aspect is about the matter of child custody. At the point when a divorce is happened by mutual consent, it is dependent upon the couple to choose who will take authority of the child custody. The care can be joint or selective, according to their understanding.

The third angle is identified with property about how many portions of the property will husband get and what is the wife's share in the property.

Types of Divorce:

1. Divorce With Mutual Consent:

When husband and wife both agree to a divorce, the courts will consider a divorce with mutual consent. For the petition to be accepted, however, the couple should be separated for over a year or two years (as per the relevant act) and be able to prove that they have not been able to live together. Often, even when either husband or wife is reluctant, they still agree to such a divorce because it is relatively inexpensive and not as traumatic as a contested divorce. Matters such as children’s custody, maintenance and property rights could be agreed to mutually.

Usually, the courts prefer to end mutual consent divorces sooner, rather than later.

As per Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple should be living separately for at least one year before divorce proceedings can begin. Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at least two years. Do note that living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period.

2.Divorce Without Mutual Consent:

In case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a reason. 

The reasons are as follows, though some are not applicable to all religions.

a.  Cruelty

Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.

b.  Adultery

In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.

c.  Desertion

One spouse deserting the other without reasonable cause (cruelty, for example) is a reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.

d.  Conversion

Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before divorce can be filed.

e.  Mental Disorder

If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.

f.  Communicable Disease

If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhoea or a virulent and incurable form of leprosy, the Hindu Divorce Law in India say that the other party can obtain a divorce.

g.  Renunciation of the World

If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce.

h. Presumption of Death

If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.

Documents required:

1. Address proof of husband

2. Address proof of wife

3. Marriage certificate

4. Four passport size photographs of marriage of husband and wife

5. Evidence proving spouses are living separately since more than a year

6. Evidence relating to the failed attempts of reconciliation

7. Income tax statements for the last 2-3 years

8. Details of profession and present remuneration

9. Information relating to family background

10. Details of properties and other assets owned by the petitioner.

Finally,  The duration for obtaining divorce varies from case to case and place to place. Generally speaking, contested proceedings take 18 to 24 months. Mutual consent varies from 6 months to 18 months.