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Divorce refers to the legal dissolution of a valid marriage. Typically, the court of law grants divorce on specific grounds, such as adultery, unsoundness of mind, and venereal disease, among others. In India, divorce laws vary based on religious affiliation. For Hindus, Sikhs, Jains, and Buddhists, the Hindu Marriage Act governs divorce. Christians can legally end their marriage under the Indian Divorce Act. Muslim divorces in India are governed by Dissolution of Muslim Marriages Act, 1939. The Special Marriage Act governs the inter-religious divorce in the country.
This blog post will serve as a guide to understanding the divorce rules in India under various acts for individuals practicing different religions.
In India, divorce is categorized into two types namely: Mutual Consent Divorce and Contested Divorce. Depending on the religion of the parties that are involved, these divorce types are governed by various personal divorce laws in India, including the Hindu Marriage Act, 1955, the Indian Divorce Act, 1869, and the Special Marriage Act, 1954.
This type of divorce takes place when both the spouses mutually agree to put an end to their marriage in an amicable manner. Mutual consent divorce reflects that both the partners have reached a mutual understanding regarding terms of separation, including matters pertaining to child custody, property division and alimony.
According to Section 13B of the Hindu Marriage Act 1955, a couple must live separately for at least one year before they can file for divorce. If both the parties give consent for the dissolution of the marriage and reach an agreement regarding financial/custodial matters, the court grants them divorce after a mandatory six-month cooling-off period. This period can be waived under specific circumstances.
In this type of divorce, one spouse files for divorce without taking the other spouse’s consent. They cite specific grounds outlined under the law governing their divorce. Some grounds for contested divorce in the country include cruelty, adultery, desertion, renunciation of the world, communicable diseases, conversion to another religion, and mental disorder, depending on the law governing the couple’s specific religion.
Under Section 13(1)(ia) of the Hindu Marriage Act, if a spouse is a victim of physical or mental harassment caused by the other spouse, they can file for a contested divorce. The court examines the evidence before deciding the validity of the divorce grounds and granting the divorce.
The grounds for filing divorce under various Divorce Laws in India are as follows:
For Hindus, Sikhs, Jains and Buddhists, the grounds for filing divorce under the Hindu Marriage Act include the following:
Cruelty, including mental and physical abuse.
If the spouse commits adultery.
Desertion (for a minimum of 2 years) without a reasonable cause.
If one spouse opts for conversion to another religion.
Unsound mind.
Diseases like leprosy which result in permanent incapacity.
Renunciation of worldly life.
If the spouse is presumed dead.
The grounds for divorce filing under Special Marriage Act 1954 are almost same as those mentioned under the Hindu Marriage Act 1955.
For Christians, the grounds for divorce are outlined in the Indian Divorce Act 1869. These grounds including the following:
Adultery by the spouse.
If the spouse has married another woman along with adultery.
Cruelty inflicted on the spouse.
Conversion to another religion.
If the spouse has married another woman by fulfilling all the rituals.
Desertion.
Impotency.
Muslims can legally dissolve their marriage as per the grounds mentioned under the Muslim Marriages Act 1939. These grounds include:
The whereabouts of the husband are unknown for a period of four years.
The husband has neglected or has failed to provide for wife’s maintenance for a period of two years.
Spouse has been sentenced to imprisonment for a period of seven years or upwards.
Impotency at the time of marriage.
Insanity for a period of 2 years or suffering from leprosy or a virulent venereal disease.
Cruelty.
Failure to perform marital obligations for three years.
The Parsi Marriage and Divorce Act 1936 mentions the grounds for divorce for Parsis, including the following grounds:
If marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the spouse to consummate it.
Unsoundedness of mind.
Desertion for at least 2 years.
If the defendant was at the time of marriage pregnant by some individual other than the plaintiff.
If the defendant has willingly caused the plaintiff great harm since the marriage, infected the plaintiff with a communicable disease.
If the spouse is undergoing a sentence of imprisonment for seven years or more.
If the spouse has committed adultery or fornication or bigamy or rape or an unnatural offence.
After divorce, certain legal rights are granted to the parties related to alimony, child custody and assets/property division.
Either party may seek alimony under Section 25 of the Hindu Marriage Act or corresponding provisions under other personal laws. The amount awarded depends on factors such as income, financial needs, and the standard of living.
As of now, India lacks a unified law for the division of marital property. When deciding how to divide assets, the court considers factors such as individual contributions and ownership.
Courts prioritize the welfare of the child when determining custody, which may be granted as sole, joint, or with visitation rights. The Guardians and Wards Act, 1890, along with personal laws, governs children custody decisions.
The following documents are required at the time of filing divorce:
Address proof of the husband
Address proof of the wife
Marriage certificate
Four passport-size photographs from the wedding
Evidence showing that the spouses have been living separately for over a year
Proof of failed reconciliation attempts
Income tax statements for the last two years
Details of profession and current remuneration
Information about family background
Petitioner’s asset details.
Here are some important considerations revolving around divorce filing:
Cooling-Off Period: In mutual consent divorce, the court provides cooling-off period to the parties. This period is intended as the time for reconciliation. However, it can be waved under extraordinary circumstances.
Grounds/Circumstances for Waiving Cooling-off Period: The cooling-off period can be waived by the court in case of extended period of separation, no reasonable chance of reconciliation and pressing situations like plans to remarry.
Jurisdiction for filing divorce petition: The divorce petition must be filed in a court where the marriage was conducted, where either of the spouses currently resides or where the couple last cohabited.
Timeline for divorce: Mutual consent divorces typically take between 6 to 18 months. Contested divorces may take several years, depending on the complexity and number of appeals.
Legal Representation: Hiring an experienced family lawyer helps ensure proper handling of the case and smoother proceedings.
To conclude, divorce in India is handled differently depending on the religion of the spouses. For Hindus, Sikhs, Jains and Buddhists in India, we have Hindu Marriage Act. For the Christians, we have the Indian Divorce Act. For muslims, we have the Dissolution of Muslim Marriages Act for Muslims and the Special Marriage Act for interfaith marriages. There are two main types of divorce: mutual consent, where both partners agree to end things amicably, and contested divorce, where one partner files based on specific legal grounds like cruelty, adultery, or desertion. The whole divorce process involves things like the cooling-off period, grounds for divorce, and which court has jurisdiction. After divorce, things like alimony, child custody, and asset division are sorted based on the divorce laws in India and the couple's situation.
For legal assistance, you must connect with a legal professional or lawyer.
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