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 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 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 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 spouse. The only two aspects on which the couple has to reach consensus is alimony or maintenance and the child custody. As per the law, there is no minimum or 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 the 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. 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 in the 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 divorce from existing partner?
No, remarriage without getting a divorce is a punishable offence 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 the 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 an average, a divorce takes between 6 months to 1 year from the date of filing of the petition. However, it varies from the facts and circumstances of the case.
Related Post: How to send Legal Notice for 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 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.
Under Indian laws, if a man who commits adultery (consensual sexual intercourse outside of marriage) can be punished with a criminal offence. The wife may, also, file for divorce as another remedy. However, if a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
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.
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 to 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.
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.
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 includes:
– 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 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 couple has been living separately for more than 1 year
– Evidence relating to the failed attempts of reconciliation
– Income tax statements for the last 2-3 years
– Details of profession and present salaries
– Information about 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.
The following grounds shall render a marriage void/ illegal:
The offence 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 fall in degrees of disallowed relationships.
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 grand-father 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 grand-mother only shall be A’s Sapinda relations from the mother’ 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, the children are legitimate. Section-16 of 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 a relief to the children of void marriages. Reasons and Grounds for Divorce?