Divorce, Separation and Matrimonial Laws

Marriage is a social institution and have been there since the beginning of the human civilization in one or the other form. This institution was promulgated for a simple reason to institute a basis for the most important unit of the society “the family”. Marriage is gives rise to the establishment of a family which goes on to carry forward the genetic and cultural legacies.

All the society in all the culture gives a lot of value to this social institution and thus invariably in all the culture and civilization there are prescribed and elaborate ways and system to arrange the wedlock of two people who are willing to get into the relationship of being spouse to each other.

So, what is divorce and separation? Technically speaking when a couple decide to part ways and severe the matrimonial ties forever then it means that they are heading towards divorce and post-divorce they will not be legally spouses (husband and wife) to each other. Since the family disintegration involves lot of stakeholders like, spouses, children, parents, relatives etc. so the legal system of any country took efforts to intervene in this quite a private matter of marriage and separation and have legislated laws around this. The laws are made with the intention to ensure that whosoever goes ahead with separation gets proper justice and no one takes undue advantage of this system. In every legal system there is an elaborate mechanism and legislation around the process of divorce and it goes without saying that our Indian Judicial System has also a robust and well proven laws, mechanism and processes for divorce.

So, what is the Legal understanding of Divorce?

Divorce is the total disintegration of a marriage before the demise of either of the spouse. Once a coupe has been divorced under the law as per the laid down procedure it means that the man and the woman are no longer related to each other as husband and wife. It includes the cancelation of any legal obligations towards each other and from any past marital obligations or bonds between the said wedlock. After divorce, one's singlehood is legitimized and he or she is allowed to remarry. Simply put it is the end of the relationship between the man and the woman who were together due to the wedlock.

Legally, speaking a marriage can be said broken when two parties, husband and wife, decide not to stay together as spouses. The system allows them to either completely dissolve the marriage or put it into a suspended animation.

This gave rise to two legal concepts in dissolution of marriage – Judicial Separation and Divorce.

Judicial Separation: When the spouses decide to separate their ways and stay away from each other and do not co habit but still are husband and wife. The marriage tie is still alive and they cannot remarry some else. Separation is done under Section 23 of Special Marriage Act and Section 10 of Hindu Marriage Act.

Divorce: When the spouses decide to end the tie for ever and finish the marriage after that they are free to remarry. Contested Divorce case is filed under Section 27 of Special Marriage Act and under Section 13 of Hindu Marriage Act.

Common reasons for divorce

Marriage give rise to the natural bonding of a male and female and the family ties between the members and with the advent of modern ways of living there has been lot of demand to have space and freedom around oneself. This need of space and freedom in one’s life has been giving rise to lot of situations demanding disintegration of the marriage and family.

It’s not just the unwarranted demand of freedom and space but also the substantial reasons like modern ways of living in nuclear families which leads to a damaging relationship between the spouses and that calls for the dissolution of marriage, the much-needed separation.

One of the common grounds these days which give rise to divorce case are Sec 498A of IPC. So many domestic violence cases are being filed by the wives that the husbands are forces to file divorce case as a result.

Other common grounds of divorce cases are

• harassment,
• physical abuse,
• mental torture,
• cruelty,
• impotency,
• adultery
• remarriage

Procedure to File Divorce Case

First of all, look for a good divorce lawyer and get a good petition drafted. File the petition the District Court or the Family Court and follow the procedure as per the court. Once the petition is filed by the Applicant the notice will be sent to the Respondent with a copy of the petition. On the fixed date the Respondent will appear the trial will begin. Both parties will submit the evidences and witnesses followed by examination and cross examination. Finally, there will be argument and lastly the judgement will be passed.

In case of Mutual Consent Divorce – MCD, File the joint petition together and appear jointly Infront of the judge and follow the motion. On first motion the Parties will appear with present the petition and the court will send them for reconciliation. A cooling off period of six month will be granted. After the six-month second motion will the decree for divorce will be passed.

Read the blog on https://www.vidhikarya.com/legal-blog/how-to-get-a-quick-divorce

Child Custody in Divorce

Child custody is a tricky issue in case of divorce and court takes it very seriously. Lot of factors are taken into consideration before deciding who should be getting the custody of the child. The welfare and development of child is the prime factor while deciding whom the custody should be handed over. Generally, till 5 years of age mothers are the natural guardian they get the custody without any question unless there is any deviation like unsound mind or incapacity to handle the child.

Fathers too can ask for child custody rights after the child grown beyond 5 years of age, if not sole custody, then at least he can ask for joint custody or the visitation rights. In some cases where the mothers are not capable of bringing up the child or is found to be of questionable character in those cases fathers, very easily, can convince the court and get the custody of their children.

Read about child custody in this blog https://www.vidhikarya.com/legal-blog/child-custody-laws-in-india

Is Online divorce possible?

No there is possibility of online divorce but yes after the COVID-19 online filing of cases has started and thus in future there might be possibility and it has also started the trend of online hearing of cases and passing of judgements.

How to find divorce lawyers?

There are many ways to find divorce lawyers and internet is the best source to find a divorce lawyer online. One can explore and search many expert divorce lawyers on vidhikarya platform.

What are the laws which Govern the Divorce matters?

These are the following laws which govern the divorce matters in India.

• The Hindu Marriage Act 1955
• The Parsi Marriage and Divorce Act 1936
• The Dissolution of Muslim Marriage Act 1939
• The Special Marriage Act 1956
• The Foreign Marriage Act 1969
• The Divorce Act 1869

Which law govern marriage and divorce among Muslims?

Muslims are ruled by their own laws under which Nikah (marriage) is a contract. It can be temporary or permanent with the provision for a man having up to 4 wives on the condition that he treats all of them equally. Divorce or Talaq for Muslims can happen without involving the Court. However, if required, the spouses can move the court in the case of a dispute during a divorce.

Talaq can happen in either of the following ways:

• When the husband chooses to end it.
• When the wife chooses to end it.
• When both husband and wife end it together.

In most cases, it is the man who has more options than the woman to say that he no longer wishes to be part of the marriage without approaching the court.

Commonly asked questions on divorce

• How long will the divorce process take?

The contested divorce on an average can take anything between 3-5 years and the mutual consent divorce generally gets over witing 6-18 months.

• What will be the cost of divorce?

The cost of divorce depends on three elements namely; court fee, lawyer fee and alimony plus maintenance. The court fee is usual fixed is very nominal and may range from Rs.200 to Rs.400. Lawyer fee will depend upon what kind of lawyer you are hiring as it varies on the experience on location basis. For example, a Divorce lawyer from Delhi, Mumbai, Bangalore will be costlier than compared to other cities.

The third element is alimony or maintenance which is related to the social status and earning capacity of the respondent. Maintenance can range anything between 10% to 25% of the salary of the respondent husband.

• How the property will be divided after the divorce?

If there is a property which is bought in the joint name which can be divided then you will have to divide the property into equal halves and get the property registered again in your names. If the property can not be divided, like flat, then you will have to alienate (sale) the property together and then divide the proceeds among yourselves or one of you can sell to another or gift to another for a price.

• Who will get the custody of the child/children?

The custody of the children has to be mutually decided among you or else you might land up to the court once again for a case. The custody can be single custody with visitation rights or joint custody where the child gets to stay with both the parties.

• Is it necessary to keep husband’s name after divorce?

No, it is not necessary to keep the husband’s name and it your choice either to keep or not to keep. But if you have used to get some documents like passport, PAN card or Aadhar then think before changing as it may have some ramifications.

• What is the difference between legal separation and divorce?

In legal separation the spouses are allowed to stay away without any obligation in separate houses and still they are husband and wife. In divorce the man and woman are no more husband and wife and certainly they have no marital obligations on each other. Divorce is “dead marriage”, separation is “suspended marriage”

• When to seek a lawyer’s guidance?

The moment you feel that your life is getting out of your hand and your marital relationship is no more blissful you should see a counsellor first then followed by a lawyer.

• How much alimony or maintenance one can get?

Alimony or maintenance is dependent on the social status and need of the applicant plus the paying capacity of the respondent. Alimony is paid as one time and is mainly agreed between the parties during the Mutual Consent Divorce filing or else the Court decides in contested divorce cases. The quantum of alimony can be anything but is enough to sustain the applicant for future life.

The maintenance is paid within a range from 10% to 25% of the respondent’s earnings. While calculating the maintenance the expenditure of the respondent is taken into consideration.

You can read mor about alimony and maintenance in these blogs;

https://www.vidhikarya.com/legal-blog/Interim-Maintenance-under-the-Domestic-Violence-Act

https://www.vidhikarya.com/legal-blog/supreme-court-sets-alimony-benchmark-25-of-ex-husbands-net-salary

• Can husband get alimony or maintenance?

Yes, it is possible for a husband to seek and get maintenance from the wife in cases where the wife is earning more than the husband and the husband needs financial supports for his maintenance. He can apply to the court under Section 125 of CrPC and the court shall oblige.

• Does father get custody right of a child?

Yes, a father can get the custody right of a child. Till 5 years of age mothers have the natural right of custody as guardian but after 5 years even fathers can claim the custody rights. Even before the child turns 5 the father can seek the visitation rights.

Read about father’s custody rights in India in this blog https://www.vidhikarya.com/legal-blog/fathers-custody-rights-in-india