Divorce
Divorce in India - Laws, Types, and Requirements
Updated on Jan 13, 2024 05:43:18 AM
Divorce is a challenging, messy, and emotionally draining process. After you've made it through the transition, you'll feel alive with the belief that you've made the right decision to improve your life. Despite how complicated it could be emotionally, it is a very time-consuming and sophisticated process on paper also.
What are the Laws for Divorce?
Different laws under the Indian Constitution govern the divorce process in India. Due to the diverse cultures in India, every religion has a separate mention of laws for divorce under marriages in their religions. Let’s have a quick understanding of what the law says for marriage divorces in different religions.
The process for getting a divorce on mutual consent is a multi-step process. The procedure for mutual
consent divorce in India is as follows:
1. Hindu Marriage Act,1955
Section 13(1) of the Hindu Marriage Act,1955 provides the right to any one of the spouses to approach the court to seek divorce whereas according to Section 13(2) provision, only the wife is allowed to approach the court for a divorce. When only one partner wishes to divorce another it is a contested divorce where it should be filed on proper grounds for divorce.
As per Section 13B of the Hindu Marriage Act, any one of the spouses can file the divorce with the mutual consent of both of them.
Section 14 of the Hindu marriage act states that no one is allowed to file for divorce within one year of their marriage.
2. Dissolution of Muslim Marriage Act,1939
There are two categories of divorce under Muslim Law - Judicial and Extrajudicial.
Mutual divorce for Muslims falls under the extrajudicial category. The extrajudicial category is based on the belief that divorce is an act of two parties and the court does not need to intervene. Khula and Mubarat are two types of mutual divorce/agreement in Muslims.
3. Indian Christian Marriage Act, 1872 and Indian Divorce Act,1869
Section 10A of Divorce Act 1869 gives the right to a spouse to end their marriage with mutual consent. Both the partners are eligible for filing a petition for divorce in court. The grounds for Mutual Divorce are similar in all the laws additionally the petition can be withdrawn after 6 months from the date of presentation of the mutual petition but before a lapse of 18 months from such date.
4. The Parsi Marriage and Divorce Act, 1936
Mutual Divorce is governed by Section B of the Parsi Marriage and Divorce Act,1936 which understates certain grounds that needed to be fulfilled for mutual divorce in Parsi marriages
5. Special Marriage Act, 1954
The grounds for divorce are stated under Section 27 of the special marriage act,1954. The grounds for filing divorce could be adultery, desertion, imprisonment, cruelty, leprosy, and many others.
Grounds for Mutual Divorce
The grounds for Mutual divorce are basically similar in all the religions of India. What are the grounds for mutual divorce? Let us understand that:
Husband and wife are not able to live together anymore
They have been living separately for one year or more than one year
Both of them have mutually agreed that the marriage has been destroyed, and hence it needs to be ended.
Grounds for Contested Divorce
A proper petition needs to be filed with mentioning of grounds under which they want to divorce their respective partner. Without proper grounds (grounds mentioned under law), no one can file for divorce in court. Now let’s look at the grounds on which one can file a petition for a contested divorce in court.
1. Cruelty
Cruelty was not initially taken as a ground for divorce. Still, after the amendment of the Hindu Marriage Act, 1976, it is now considered a valid ground for a contested divorce in India. Cruelty in easy understanding could be related to physical and mental harms. It could be direct or indirect harm to the individual partner. In India, majorly divorces are being taken on the grounds of cruelty where husband or wife use violence against their life partners.
2. Adultery
If one partner gets involved in sexual intercourse with anyone other than their partner, it is considered a valid ground for applying divorce for the other partner who was not involved in intercourse. On this ground, they need to prove the allegation on the partner. The exact evidence is hard to find in these cases, so the most probable proofs can be considered.
3. Desertion
Desertion in very simple language could be understood as the negligence of one partner by another for a long period. If this negligence is part of their consent, it cannot be concluded under desertion ground for a contested divorce. It can also be a valid ground for divorce if the petitioner proved that there is nothing left in between them except living under the same roof.
4. Conversion
Conversion of one partner's religion to another is also a ground for a contested divorce in India. But not all the laws consider this as a valid ground. The dissolution of the Muslim Maritage Act, 1939 and the Special Marriage Act, 1954 does not consider it a valid ground despite being considered a valid ground under Hindu Marriage Act, 1955. This right is only for the one who was forced to convert into a different religion, not to the one who already belongs to their religion.
5. Mental Disorder
Mental illness or disorder is a ground under which if a person’s mental health is not curable and degrading day by day, the marriage can be moved to divorce by the partner. It can be taken as a state where the person (husband/wife) cannot handle himself/herself. The spouse must first prove the ill mental condition if he/she plans to file divorce on this ground.
6. Communicable Venereal Diseases
Before understanding the ground, first get the meaning of venereal disease. Venereal diseases(or STDs) are those diseases that transfer from affected individuals to healthier ones during intercourse. This ground is considered valid under all Divorce laws for getting marriage dissolved. The main motive of this ground is preventing the partner from venereal disease.
Mutual and Contested Divorce
Divorces in India are generally applied in two major forms. Forms indicate the nature and intention for applying divorce. The motive for divorce could either be with the agreement of both the parties i.e husband and wife or it could be initiated from only one side also. Whatever scenario may it be but the final result one is seeking to have is his/her divorce in India.
Mutual Divorce
Contested Divorce
Uncontested or Mutual Consent Divorce is a legal action taken by both husband and wife when they decide to end their relationship and get divorced on a mutual basis. In simpler words, when both parties (husband and wife) mutually agreed to divorce, it is called Mutual Consent Divorce. The procedure for Mutual consent divorce is simpler as compared to a contested form of divorce.
A Contested Divorce is a form of divorce where either of the partners disagrees for mutual divorce or any dispute regarding property, child, and alimony is in between them. In those cases, they have to seek help from the court for their dissolution of marriage. The time for taking contested divorce may vary from 1 year to 5-6 years also.
The petition for Contested Divorce and mutual consent divorce can be filed at the Family court of the city where the couple last lived together, such as their marital home, where the marriage was solemnized, or where the wife currently resides.
How is Judicial separation different from Divorce?
Some people often get confused between the two terms divorce and judicial separation and consider them to be a part of one another. But the reality is different from that. Our effort would be here differentiating both the terms for you.
Divorce
Divorce significantly means the end of the marriage.
The parties can only file it after one year of marriage.
While proceeding for divorce, the court has to consider their marriage to be broken.
Judicial Separation
Judicial Separation seeks the possible outcomes of living separately for a certain period of time.
It does not require any significant time frame to be applied.
There is no need for the court to consider their marriage as permanently closed or broken in the proceedings for judicial separation.
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