Marriage and family have been considered as two significant institutions of society. Marriage was considered to be unbreakable tie between the husband and wife. But with the passage of time, transformation can be seen in this view. In present time, communication-gap, changing roles of husband and wife, and tensions of fast growing life bring this transformation. These factors have an adverse impact on the relationship of married couples which leads them to seek legal help in solving their marriage problems. The rate of divorce in the world is becoming alarming and geometrical in calculation. There are approximately 55,000 cases pending related to divorce.
What is the meaning of term divorce?
Divorce is a legal end of marriage institution. Such legal end of marriage can be sought with the help of court. When a court passes a divorce decree, it reorganizes or cancels the legal responsibilities and duties of marriage of marriage couples. Divorce is a legal separation of husband and wife and also includes division of property assets and issue of child custody.
What are the types of divorce?
There are two types of divorce according to the nature of its proceedings. These are:-
- Contested divorce
- Mutual consent divorce.
Contested divorce: Where one party wishes to get divorce, but the other party refuses for the same or parties are unable to settle the matters related to child custody, maintenance and property division etc. then such party has to contest the divorce. Contested can take period of more than 2 years as it depends on the lot of factors.
Mutual consent divorce: Where both parties are agreed to terminate the marriage and has mutually settled the other issues related to marriages, and then mutual consent divorce can be filed in the court. It is fastest way to get divorce. It takes maximum period of 6 months.
What are the laws?
India is secular country and wide numbers of religions are freely practiced. The major religions practiced include Hinduism, Islam and Christianity. People belongs to particular religion performs marriage with religious rituals and ceremonies, which are mostly codified by their personal laws. Therefore matrimonial issues like marriage, divorce, child custody and other related issues are governed by the personal laws of the parties depending on their religion:-
- Hindu Marriage Act, 1955 for people who are Hindus under the Act for e.g. Hindu, Buddhists, Sikh, Jain.
- Indian Christian Marriage Act, 1872 and the Divorce Act, 1869: For Christian people.
- Parsi Marriage and Divorce Act, 1936: For Parsi people.
- Special Marriage Act, 1954 applies to all people of all religions.
Divorce under Hindu Marriage Act:
Contested divorce: A party whose marriage was solemnized under Hindu Marriage Act can take divorce as per the provisions of this Act. The divorce petition is filed under Section 13 of the Hindu Marriage Act on following grounds:-
- Adultery: – It is a criminal offence where spouse is involved in sexual relations with someone out of marriage.
- Cruelty: – Cruelty included both mental and physical. It is a very wide term. It includes bodily harm, abusing and mental or physical torture etc.
- Desertion: – Where spouse left his/her partner without any intention of coming back. Desertion for more than 2 years could be a valid ground for divorce.
- Conversion of religion: – If spouse covert his/her religion then it can be considered as a ground for divorce.
- Mental disorder: – Mental disorder is ground for divorce. It includes unsoundness of mind, mental illness, or other mental disorder which makes the person abnormally aggressive.
- Venereal disease: – It is a ground for divorce if such disease is communicable by nature. The period of such disease is not relevant. It is necessary to point out here that now leprosy is not a ground for divorce as per latest amendment in personal laws in 2019.
- Renunciation of the world: – If spouse has renounced the world and has entered a holy order. The other party may take divorce if spouse has renounced the world.
- Presumption of Death: If the whereabouts of the spouse has not been known for 7 years or more, then it becomes a presumption of his/her death. The other party can take divorce on this ground.
Other grounds for divorce only available to women:-
- If husband is guilty of rape, sodomy or bestiality.
- The wife was married before the age of 15 years and refuses to accept the marriage after attaining that age. However, such refusal must be made before the age of 18 years.
- A decree or order has been passed by the court for maintenance to the wife and they have not been living together for more than 1 year.
Mutual consent divorce: Mutual consent divorce is filed under Section 13 B of the Act. For seeking mutual consent divorce parties must have been living separately for 1 year. They must be mutually agreed for the divorce.
When divorce can be filed?
Divorce petition can be filed after the expiry of 1 year from the date of marriage. However, in case of exceptional hardship petitioner can move application before High Court to allow him/her to file divorce petition before the expiry of said period.
When divorced person can marry again?
On obtaining the divorce decree, the remedy of appeal is available to the other party. A specific period is given for appeal in the higher courts. If the other party doesn’t prefer appeal within that specified period. Then after the expiry of that appeal period divorced person can perform his/her marriage again.
Divorce under Muslim Law:
A Muslim man can take divorce from his wife without interference of the court. But if Muslim woman wishes to take divorce from her husband then she can move petition under the Dissolution of Muslim Marriage Act. On the following grounds Muslim woman can get divorce from her husband:-
- Whereabouts of the husband is not known for 4 years.
- Husband failed to provide maintenance to wife for 2 years.
- Husband got imprisonment for at least 7 years for criminal offence.
- Husband failed to comply with his marital obligations for 3 years without any reason.
- Husband was impotent at the time of marriage.
- Husband suffering venereal diseases or of unsound mind for at least 2 years.
- Cruelty by husband.
- Wife married before the age of 15 years.
Now, the Triple talaq or Talaq-e-Biddat is void or illegal as per Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. It is a cognizable and non-bailable offence under this Act.
Divorce under Indian Divorce Act:
This Act applies to the Christian community in India. There are two ways to file divorce i.e. mutual consent divorce and contested divorce.
Mutual consent divorce: – If both parties are living separately from atleast 2 years and agreed to divorce then they can file mutual consent divorce before the Family court.
Contested divorce: – Contested divorce can be filed on the following grounds:-
- Conversion of religion.
- Unsoundness of mind for continuous period of 2 years.
- Virulent and incurable form of leprosy for 2 years.
- Not known the whereabouts for 7 years or more.
- Willfully refuse to consummate the marriage.
- Failed to comply with the decree of restitution of conjugal rights for period of 2 years or more.
- Desertion for 2 years.
- Husband is guilty of rape, sodomy or bestiality.
Divorce under Special Marriage Act:
This Act applies to the inter-caste or inter-religions marriages in India. Under this two forms of divorce are provided. Parties can either mutual consent divorce or contested divorce according to their circumstances.
Mutual consent divorce: – Parties can file mutual consent divorce under Section 28 of this Act. For filling mutual consent divorce parties must have resided separately for the period of atleast one year and mutually agreed to the divorce.
Contested divorce: – Contested divorce can be filed on following grounds:-
- Desertion for 2 years.
- Spouse got imprisonment for 7 years or more for criminal offence.
- Communicable or venereal disease.
- Spouse is missing for 7 years or more.
- Judicial separation.
Where the petition can be filed?
The divorce petition can be filed in the Family court which have jurisdiction to entertain the petition. A person can file petition where:-
- Marriage was performed.
- Parties last lived together after marriage.
- Party seeking divorce is currently living.
- Respondent resides at the time of presentation of petition.
What are the documents required for contested divorce?
The following documents are required for contested divorce in India:-
- Residence proof of husband and wife.
- Marriage certificate/ Nikahnama as the case may be.
- Documents related to the financial status of husband and wife like income certificate, tax returns etc.
- Documents proving the ground on which divorce is being filed.
What are the documents required for mutual consent divorce?
Documents required for mutual consent divorce are:-
- Residence proof of husband and wife.
- Marriage certificate.
- Photographs of husband and wife.
- Evidence with regard to separate living.
- Details of profession and income of husband and wife.
- Details of the property and assets owned by the spouse.
- Proof to show that mediation was unsuccessful and the parties couldn’t be reconciled.
Divorce is a most difficult phase of every married couple. It is important for every spouse seeking divorce to know about the rights and duties after the end of marriage institution. Many personal laws provide the solutions to get rid of unhappy marriage by filling divorce in the court. A divorce petition is drafted and filed in the relevant court. In India seeking a divorce is a lengthy legal process which may take time from 6 months to years depends upon the circumstances of each case.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali