Divorce Laws in India for Mutual and Contested Divorce

Divorce is the legal dissolution of marriage. A divorce is among the most traumatic misfortunes for any couple. The entire process of divorce that starts from coping up with emotional ups and downs to contesting for the long-awaited divorce decree for several months is definitely a tough affair to get through. Before opting for a divorce one should be aware of the fact that a divorce procedure in India extends for almost a year and in some special cases of disputes the procedure may continue for years.

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Since India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking a divorce. All Hindus, as well as Buddhists, Sikhs, and Jains, can seek divorce under the Hindu Marriage Act 1955 according to the divorce laws in India. The Muslim, Christian, and Parsi communities, on the other hand, have their own laws governing marriage and divorce. Spouses belonging to different communities and castes can seek divorce under the Special Marriage Act, 1956. There is also the Foreign Marriage Act 1969, governing divorce laws in marriages where either partner belongs to another nationality.

With the advancement of time and social awareness, several acts have been passed by the government which state the divorce rules in India to make the present-day divorce procedure more progressive with respect to gender affairs and related sensitive issues.

Divorce laws in India are broadly categorized into ‘Divorce by Mutual Consent’, ‘Contested Divorce’, ‘Void Marriages’, here is a detailed overview of each of them.

1. DIVORCE WITH MUTUAL CONSENT

So, according to the divorce laws in India under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court through a divorce lawyer. Mutual consent means that both parties agree for peaceful separation. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolve it legally. The 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. The next important consideration is 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.

2. CONTESTED DIVORCE

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 for divorce are as follows, though some are not applicable to all religions.

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.

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.

Desertion

One spouse deserting the other without reasonable cause (cruelty, for example) is the 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.

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 a divorce can be filed.

Mental Disorder

If the spouse is incapable of performing the normal duties required in 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.

Communicable Disease

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

Renunciation of the World

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

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.

3. VOID MARRIAGES

Following are the grounds that shall render a marriage void or the court shall deem it to be illegal are:

Bigamy

None of the parties to the marriage shall have a spouse living at the time of their marriage. If either of them has a spouse alive from an earlier marriage, their subsequent marriage is no marriage in the eyes of law. It is void ab initio and non-existent.

Persons falling within degrees of prohibited relationships

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 who fall in degrees of prohibited relationships.

Sapinda relations

Sapinda relations can be illustrated as under:

Suppose A is a boy. Now if he is considered 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 grandfather shall all be A’s Sapinda relations. But on the mother’s side, this chain is to extend to only three generations which include A. Therefore, A’s mother and A’s maternal grandmother only shall be A’s Sapinda relations from the mother’s side, A himself being one generation. Marriages made up of such relationships are void.

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