Guidance on Divorce
1 year ago
I got married in Feb 2014 and moved in with husband in another state after 2-3 months of marriage he started fighting/screaming for every small reasons. After a year of marriage I was told that he was not in favor of this marriage since the beginning as he wanted to marry a girl with a job. Most of the time he will left me back his parent’s house I was humiliated, taunted for not being capable of getting job by his family and him. When I got job in 2019 he then taunts me for earning less, he was not at all supportive when it comes to look after my daughter. He spend most of the time out of the house in the name of office, his family is too controlling my husband follows them blindly. We don’t have relationship as husband and wife should usually have. We are like roommates, who hardly talk or even look at each other we are just staying together for the sake of daughter but I don’t think this is the right environment for my child to grow and develop.
Why am I suppose to stay in such marriage that cost me my mental peace and self respect??
He is not even ready for divorce. Need some guidance.
A.Dear Madam,
You may go for divorce with alimony for you and maintenance for your daughter.
There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872.Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 &The Muslim Women(Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.
A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it clear broadly that the Divorce can be obtained by two ways:
• Divorce by Mutual Consent
• Contested Divorce
1. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. 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. Next important consideration is the 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.
Duration of Divorce in Mutual Consent varies from one month to six months or more from States to States and as per the High Court directions.
2. Contested Divorce
As the name suggests, you will have to contest it. Indian laws in general recognizes cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years), Unsoundness of mind( of Incurable form), Impotency, renouncing the world, etc. Aggrieved party has to take one of the above grounds of divorce and will have to file the case in the Court of appropriate jurisdiction. Party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly.
ANNULMENT OF MARRIAGE:
Marriage in India can also be dissolved by means of Annulment. Procedure for annulment is same as that of Divorce except that the grounds for annulment are different than that of divorce. Grounds for annulment are fraud, pregnancy of wife by person other than the husband, impotency prior to the marriage and subsist even at the time of filing the case.
Once annulment is granted by the Indian Court, status of the parties remains as it was prior to the marriage.
VOID MARRIAGE:
There are certain form of marriages which are null and void despite the performance /solemnization of the same. Marriage is void under following circumstances:-
a) neither party has a spouse living at the time of the marriage
b) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
c) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Time duration for obtaining divorce varies from case to case & place to place. Generally speaking, contested divorce proceedings take approximately 18 to 24 months. Mutual Consent Divorce varies from 4 weeks to 7 months and more. In Delhi, Mutual Consent Divorce is possible with in two to four weeks.
Generally speaking procedure for obtaining Divorce in all forms of law (based on religion) is same with only bit of variation.
There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872. Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.
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.
What are the costs involved in getting divorce by mutual consent?
If you hire an advocate, it will be somewhere from Rs 25,000 to Rs 75,000.
But if you get the documentation done by us and file on your own without a lawyer, the cost will be very very low. You will not have any problem in filing your petition with our guidance, and you will save a lot of money.
How much time does the whole process take from filing the mutual consent petition in the court till the passing of the decree (judgment) by the court?
It takes from six months to one year from the date of filing of the petition. It varies from case to case & place to place.
You mentioned having a daughter with your husband to whom you feel responsible as a parent for providing a healthy environment. We would suggest you and your spouse to resolve matters as amicably as possible for the same sake. Hence trying a marriage counsellor to help resolve dispute is an advisable option. Since you mentioned your spouse to have family members supporting him by holding similar stance as he does, we would suggest if possible connecting with your own family members outside of marriage for relieving stress and getting emotional support. Using law and litigative methods shall cause a strain to your marriage but since it possible you might need some legal recourse if the above efforts go vain we have compiled below some circumstantial remedies available to you.
1.Serving legal notice with the help of a lawyer to your spouse, shall cover your demands, expectations and conditions you hold for your marriage and spouse, it is one way to deal with matter legally.
2. You my file a complaint of domestic violence.
It is covered under the Domestic Violence Act, 2005.Section 3 of the Act states that domestic violence includes any act, omission, commission, or conduct that harms, injures, or endangers the health, life, limb, safety, or well-being, whether mental or physical of the aggrieved person.
Also, it is mentioned in your query that your husband does not want divorce, we would urge you to contemplate if you want the same or not, for better assessment.
Hopefully this resolves your query, best wishes. Thank you.
Many a times giving some space to a relationship brings the bonding and liking that is needed for the relationship to survive. You may try for legal separation without going for divorce and let the marital chord be strong again. since you are earning you can try to live separately with your daughter.
Divorce should be the ultimate thing when you are very sure that this marriage is not at all workable.
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