DIVORCE IN INDIA

By dimple Sangeetha 

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 types of divorce petitions and you will hereby, understand the procedures on how to get divorce in India from wife. Divorce process in India, divorce rules in India and the divorce laws in India are a little complicated. You can get help from a CA or a legal expert. 

Types of Divorce Petitions

A couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other.

Divorce by Mutual Consent

“Divorce does not mean a failure; it is in fact a step towards self-realization and growth”

Ending of a marriage legally is divorce and the easiest and the least traumatizing way to get a divorce and dissolve the marriage which is not working for either of the spouses is by mutual consent.

The entire procedure of dissolution of marriage in India is initiated with a petition for divorce which is filled by either of the spouses associated with the divorce procedure with the notice of the same being served to the other one.

In a mutual consent divorce, the husband and wife mutually agree to separate and end the marriage. As a result, mutual divorce saves a lot of time as well as money in comparison to a contested divorce. In addition, it is also easier to file for a mutual consent divorce. Under Section- 13B of the Hindu Marriage Act, 1955, a provision has been provided for mutual consent divorce wherein certain conditions must be satisfied by the parties to get a divorce. In addition, Section- 28 of the Special Marriage Act, 1954 and Section- 10A of the Divorce Act, 1869, also cater to mutual consent divorce.

For instance, under the Hindu law if the aggrieved couple has been living separately for a period exceeding 1 year at least and if the couple is further unable to cohabit together, and both the spouses have mutually agreed that their marriage has completely collapsed, the court can grant divorce to the couple.

What are the requirements to remember in a mutual consent divorce?

• The husband and wife must have been living separately for at least 1 year.
• There must be no coercion, fraud or undue influence between the spouses and there must be free consent to get the mutual consent divorce.
• There is no possibility of adjustment or reconciliation between the husband and wife.
  
  

What is the complete procedure to get a mutual consent divorce?

A mutual consent divorce is one way of minimizing the trauma of ending a marriage when the marriage gets dissolved with mutual respect between the couple with minimum bad blood between the couple and their families.

The entire mutual consent divorce procedure is as follows:

• There are 2 mandatory appearances for the couple to be made in the Family Court in a mutual consent divorce proceeding.
• In a mutual consent divorce, both the spouses act as Petitioners because both the spouses are in agreement to dissolve their marriage.
• The first step towards initiating the divorce procedure is to draft a joint divorce petition and file it at the relevant Family Court.
• Subsequently, the spouses would present their separate lawyers to represent them in the court.
• The mutual consent divorce petition consists of a joint statement by the couple stating their incompatible differences and that they can no longer cohabit together and therefore, should be granted a divorce.
• The same joint petition further consists the agreement relating to the custody of children, splitting of assets, alimony, maintenance, etc.
• In the first motion, statements of both the spouses are recorded and then signed on paper in the Court.
• After this, a 6 month cooling off period (not mandatory) is given to the couple towards one final attempt for reconciliation which is solely to provide one last hope for the couple to re-think about their divorce and try and make things work out.
• After the lapse of the said 6 months also known as the reconciliation period, if both parties still don't agree to cohabit together, then the spouses have to appear for the second motion called the final hearing.
  
  

A recent Supreme Court judgement categorically stated that the 6 months reconciliation period (cooling off period) is not mandatory in cases where the couple has genuinely resolved all their matrimonial issues already and therefore, the cooling off period can be waived off but depending upon the discretion of the court.

• Besides this, if the second motion is not made within 18 months, then the court will simply cancel the decree of divorce.
  
• In addition, under the law it is clearly mentioned that either of the spouse can withdraw their consent at any time before the court passes the divorce decree.
• Above all, the most important requirement for getting a mutual consent divorce is free consent of each spouse. In other words, unless there is absolute agreement between both the spouses to end their marriage and unless the court is completely satisfied with the same, no divorce will be granted.

STEP BY STEP PROCEEDURE FOR MUTUAL DIVORCE

Step 1: Petition to file for divorce

Firstly, a joint petition for dissolution of marriage for a decree of divorce is to be presented to the family court by both the spouses on the ground stating that they have not been able to live together and have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more.

This petition will, then, be signed by both the parties.

Step 2: Appearing before Court and inspection of the petition

Both the parties will have to appear before the family court after the filing of the petition.

The parties would present their respective counsels/lawyers.

The court would critically observe the petition along with all the documents presented in the court.

The court may even attempt to bring reconciliation between the spouses, however, if this is not possible, the matter proceeds for further follow-ups.

Step 3: Passing orders for a recording of statements on oath

After the petition is scrutinized by the court and it satisfies, it may order the party's statements to be recorded on oath.

Step 4: First Motion is passed and a period of 6 months is given before the Second Motion

Once the statements are recorded, an order on the first motion is passed by the court.

After this, a six months period is given to both the parties to a divorce, before they can file the second motion.

The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.

Step 5: Second Motion and the Final Hearing of petition

Once the parties have decided to go further with the proceedings and appear for the second motion, they can proceed with the final hearings.

This includes parties appearing and recording of statements before the Family Court.

Recently, the Supreme Court has held that the 6 months period given to the parties can be waived off at the decision of the court.

Therefore, the parties who have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties, this six months it can be waived off.

Even if the court is of the opinion that the waiting period will only extend their sufferings, the six months can be waived off in this case also.

Step 6: Decree of Divorce:

In a mutual divorce, both parties must have given consent and there shall not be any differences left in the matters related to contentions regarding alimony, custody of a child, maintenance, property, etc.

Thus, there needs to be complete agreement between the spouses for the final decision on the dissolution of marriage.

IN SIMPLE TERM

What are the steps involved?

• In Mutual Consent divorce

STEP 1: First Motion involves joint filing of divorce petition.
STEP 2: Husband & wife appear before court to record statements after filing of petition.
STEP 3: Court examines petition, documents, tries reconciliation, records statements.
STEP 4: Court passes order on First Motion.
STEP 5: Cooling off period of six months given to couple by court to rethink decision.
STEP 6: Filing of Second Motion is done within 18 months of First Motion.
STEP 7: Decree of divorce passed by the court.

note:

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.

According to the Hindu Marriage Act, 1955; a petition for a 'mutual divorce' can be filed if you and your spouse are facing difficulties and have decided to part your ways legally. you can even file for divorce if the other party is not willing to get a divorce- this is called, 'Contested Divorce'.

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.

1. 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.

2. 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.

3. 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.

4.  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.

5. 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.

6. Renunciation of the World

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

7. 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.

What are the steps involved?

• In Contested divorce

STEP 1: Filing of petition by the husband or wife.
STEP 2: Court issues summons and seeks reply from the other spouse.
STEP 3: Court may suggest reconciliation.
STEP 4: Examination and cross-examination of witnesses and evidence.
STEP 5: Counsels for both parties present final arguments.
STEP 6: Decree of divorce passed by the court.

There are three aspects regarding which a husband and wife have to reach a consensus.

One is alimony or maintenance issues. As per law, there is no minimum or maximum limit of support. It could be any figure or no figure. The second consideration is the custody of the child. This must necessarily be worked out between the parties, as it is inevitably what requires the greatest amount of time in divorce without mutual consent. Child custody in a mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses. The third is the property. The husband and wife must decide who gets what part of the property. This includes both movable and immovable property. Right down to the bank accounts, everything must be divided. It is not necessary for it to be fair, so long as it is agreed to by both parties.

Divorce Notice:

Before anything, you should be aware to produce a divorce notice to your spouse. This is to clarify the emotions and a platform to initiate your thoughts on discontinuing the relationship. A legal notice for divorce will bring in clarity to the other spouse about the future relationship which you want to hold.

A spouse can send a legal notice for divorce to the other spouse in order to communicate his/her intention to take legal steps forward covering the marriage relationship. It is a formal communication which is the first step to break the ‘husband and wife’ connection.

What is Alimony?

When two people are married, they have an obligation to support each other. This does not necessarily end with divorce. Under the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage. This will include, therefore, either spouse, dependent children and even indigent parents.

The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the husband having sufficient means. When deciding the payment on the alimony, the court will take into account the earning potential of the husband, his ability to regenerate his fortune and his liabilities.

In case either spouse is unable to pay for the divorce, then the spouse who earns will have to pay these expenses.

Factors that influence the duration and amount of alimony:

In a contested divorce, the alimony, its amount and tenure, depend upon the length of the marriage. A divorce after a decade of marriage entitles the spouse to a life-long alimony. The other essential factors are:

1. Age of the spouse (or the person who is ought to receive the alimony)
2. Economic condition or the earnings of the person who is to provide the alimony
3. The health of both spouse (the failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favour of him or her. They can claim a larger alimony on the basis of their failing health).
4. The spouse that retains custody of the child would either pay lesser alimony or pay a greater amount while the child is a minor.

Custody

Custody of the children means when a parent separated or died, then the legal right or duty to care for children or his property.

• The custody of the child granted/awarded/gave by the court to the father.
• The custody of the child got/received by the mother.
• The parents were given joint custody.

The term child custody used in family law in which courts to define legal guardianship of a child under the age of minority i.e. 18 years old. At the time of divorce, the custody of the child often becomes a matter to determine by the court to resolve the issue. In most matter, the custody of the child legally to be shared by both the parents but in case of physical custody of the child, gains by one parent. Often the Family law courts make decisions on the best interests of the child or children, not on the best arguments presents by each parent.

Custody under Hindu, Muslim, Christian and Parsi Law

India is a secular country for this to make provisions for dealing with the matter of child custody enacted the matrimonial legislation under personal law. Such as:

Custody under Hindu Law

To deal with matters related to the custody of the child under the Hindus law. They have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Irrespective of caste, community or religion, there is a secular law to deal with matters relating to appointment and pronouncement of guardians. However, the Indian Courts in certain matters will give consideration to the personal law of the concerned parties. At the time of determining the question of custody of children, the court should read both the provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act 1890 in the welfare of the minor and not in derogation to each other. To define the word welfare means to include the moral as well as physical well being of the child and also have regard to the ties of affection.

The Mother is the original guardian of the child up to the age of 5 years as per the Hindu Minority and Guardianship Act, 1956.

There are so many views quoted by the judges relating to this- such as in view of Beaumont, CJ. ‘There is no possible way to find the adequate option for the child if the mother is a suitable person for caring.’

In Re kamal Rudra Das J. expressed the same view recently that: I have no hesitation in my mind that the mother’s lap is God’s own support for a child of this age, and that as between father and mother, other things being equal, a child of such caring age should remain with mother.

In case of male children above the age of 16 years and in case of the female above the age of 14 years, the courts considered the view of them which has been taken in the case for their welfare. In the case of Venkataramma Ayyangar v. Thulasi Ammal[1], the court held that if the children’s wishes found to induced by wholesale persuasion and were even tortured then the court has to be disregarded.

Custody to the third persons- Generally, custody of the children should be given to either of the parents. But in the case of the welfare of the children, the custody should be given to the third person also. In case of Baby Sarojam v. Vijayakrishnan Nair[2], the guardianship of the two minor children allowing to the maternal grandfather, the court expressed that regardless of whether the father was not discovered unfit, custody may be given for the welfare of the child to the third person.

Custody under Muslim Law

The matters relating to the custody of minor children shall be deemed to be under the provision of the Muslim Personal Law (Shariat) Application Act, 1937. It has been upheld under the Hon’ble High Court of Delhi in case of Mohammad Nihal vs. State, that concerning matters pertaining to succession, inheritance, marriage, divorce, guardianship, etc, the Muslim Personal Law (Shariat) shall be applicable if the parties are Muslims.

Mother’s right of hizanat-   The most importantly appropriate to have the guardianship of youngsters has a place with the mother and she can’t be denied of her right insofar as she isn’t discovered blameworthy of unfortunate behaviour. Mother has the right of guardianship in as much as, she isn’t disqualified. This right is known as the right of hizanat and it is very well may be authorized against the father or some other individual. The mother’s right of hizanat was exclusively perceived in the interest of the children and in no sense, it is an outright right.

In case of Son-  It is an established rule among the Hanafis that the mother’s right of hizanat over the son remains until he completes the age of seven years. In case of Shias the right of custody of her son up to the age of weaning. In view of the Malikis the mother’s right of hizanat over her son till the age of puberty. The rule among the Shafiis and Hanabalis is the same as the Malikis.

In case of Daughter- In view of the Hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Hanabalis, Shafiis and the Malikis the right of the mother of custody over her daughters continues up to they are married. In case of both the parent’s absence or on their being disqualified the grandfather is entitled to custody.

Father’s right of hizanat- The father’s right of hizanat recognize in all the schools of Muslim law under two conditions that are:

1. On the completion of the age by the child up to which mother or other females are qualified for custody.
2. In the absence of the mother or other females who have the privilege to hizanat of minor children.

Custody under Christian Law

There is no provision relating to the custody of children under Christian law but the matters are well solved by The Indian Divorce Act, 1869 which is applicable universally. The Indian Divorce Act, 1869 contains provisions concerning the custody of children. The provision of the custody of children provides under section 41 of the said Act with the order of separation in a suit. The court may from time to time in a suit of a judicial separation make such interim orders before making its decree, as it deems fit with respect to the custody, education, and maintenance of the minor children, the marriage of whose guardians is the subject of such suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the said Court.

In the case of ‘Rosy Jacob v. Jacob A. Chakramakkal'[3], the Court held that:

All orders identifying with the authority of the minor wards from their extremely nature must be viewed as temporary orders made in the current conditions. With the changed conditions and conditions, including the progression of time, the Court is qualified for vary such orders if such variation is considered as in light of a legitimate concern for the welfare of the wards.

Custody under Parsi Law

The matter relating to the custody of the children under the provisions of The Guardians and Wards Act of 1890 in which it is a well-settled principle that the welfare of the child is paramount i.e. the most important thing adopted by the Guardian Court when deciding custody.

There are factors considered by the courts when deciding the matters relating to the custody of children:

• The welfare of the minor child shall be considered in every case relating to it.
• The personal law of the father should take into account relating to the age, sex, and religion of the minor. The custody of the younger children should be given to the mother for the welfare of the child.
• If in the opinion of the court the allegations against the mother’s custody are baseless it shall be rejected.
• The courts prefer to keep children united and award custody of both to either the mother or the father.
• The preference should be given to the minor usually up to the age of 9 years old.
• The court considered that the child’s comfort, health, material, intellectual, moral and spiritual welfare.

How to settle property matters?

It seldom matters whether you or your spouse own the property. If you are married – irrespective of the fact that a divorce petition has been filed – you have the right to occupy the property. If you are also looking after children, the case is much stronger. While the property may be granted to one or the other spouse in the divorce settlement, until this is done, both spouses have the right to remain on the property.

How much does it cost to get a divorce?

Court fees for filing a divorce are low; the cost is mainly in the fees you pay your lawyer. Lawyers tend to charge fees for appearing in court and doing any other work. Depending on how intensely it works, therefore, it may cost anywhere from the low ten thousands to lakhs of rupees.

Documents required:

1. Address proof of husband
2. Address proof of wife
3. Marriage certificate
4. Four passport size photographs of the 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.

Annulment of marriage:

One can dissolve a marriage in India by means of annulment. The procedure for annulment is same as that of divorce, except that the grounds for annulment are different from that of divorce. Reasons for annulment are fraud, the pregnancy of wife by a person other than the husband, impotence before the marriage and subsisting even at the time of filing the case.

Once the Indian court grants an annulment, the status of the parties remains as it was prior to the marriage.

Void marriage:

A marriage is automatically void and is automatically can be invalid when the law prohibits it. Section 11 of the Hindu Marriage Act, 1955 deals with:

Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 of the Act.

Bigamy: If either spouse was still legally married to another person at the time of the marriage then the marriage is void, and no formal annulment is necessary.

Interfamily marriage: A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.

Marriage between close relatives: A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

Voidable marriage:

A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud.

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.

QUESTIONS RELATED

How to file divorce petition by mutual consent? What happens in the court?

The divorce petition is in the form of affidavit, which is to be submitted to the family court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months.

After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.

Can any one party withdraw the mutual consent petition after filing in the court? What will happen by that?

During this period of 6 months when the petition is pending in the court, any of the partner is fully entitled to withdraw the mutual consent 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.

What can the other partner do under such circumstances?

There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950.

In such a situation divorce can be granted only on certain specified grounds like cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.

Can the spouse consent for remarriage without getting divorce from existing partner?

Remarriage without getting divorce is a punishable offence with seven years imprisonment.

If either of the spouses is not heard for a long time, should the divorce be applied?

If there is proof of the absence of spouse without any information to the other spouse about his whereabouts for a continuous seven years period, a petition should be filed in this regard in the court.

When the divorced persons can remarry?

Depending on the nature of decree, after the expiry of three months from the date of decree if no notice of appeal is received by the person remarrying from the other person.