Divorce Law in India: Know Your Legal Rights

Avik Chakravorty

A couple can be traumatized after going through the experience of a divorce. What makes matters worse, is the fact that the long-drawn nature of divorce makes it a very costly affair in India more so if a spouse happens to contest the divorce. Even when there is a mutual consent to divorce the courts will not even consider their plea until and unless couples have been able to satisfactorily prove in a court of law that they have been mutually separated for at least a year.

In India, similar to the vast majority of personal matters, divorce rules and laws are related to religion. For each and every religious group there are separate divorce rules and laws that are applicable to each of those religious groups. Divorce amongst Hindus, Buddhists, Sikhs and Jains for example, is in accordance with 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. Likewise, Civil and inter-community marriages are in accordance with the Special Marriage Act, 1956.

Types of Divorce Petitions

The options for a couple mutually consenting to a divorce or either of the spouses filing for divorce sans consent:

Divorce with Mutual Consent: If couples agree to divorce then the courts would consider granting the divorce based on mutual consent. The precondition for the acceptance of the petition, however, is that the couple ought to be legally separated for at least a year or even two years according to the applicable act and provide evidence that living as a married couple has not been possible for them. Oftentimes, notwithstanding the fact that either spouse may be reluctant to a divorce, they would nonetheless be consenting to divorce as its less expensive and traumatic in comparison with a contested divorce. There can be an agreement on children’s custody, maintenance and property rights matters mutually.

The aspects that couples need to reach a consensus on are alimony issues. It's pretty much open-ended as there isn’t any minimum or maximum level of maintenance or support that the law has set. The second aspect is child custody which has to be resolved among the parties as it invariably time-consuming when mutual consent is lacking in a divorce.  Child custody can either be shared, joint or exclusive in a mutual consent divorce and it largely depends on how well the understanding is between the spouses. The third aspect is the property. Couples have to make a decision as to division or partition of the properties including both movable and immovable properties along with the bank accounts. It does not necessarily have to be fair and square as long as both parties agree.

It takes about six to eighteen months for the courts to grant a mutual consent divorce depending on the decision of the courts. The courts, in most cases, prefer ending mutual consent divorces as soon as possible and do not want to let it linger indefinitely.

According to Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, couples ought to live separately for at least a year prior to starting divorce proceedings. Section 10A of Divorce Act, 1869, nonetheless, makes it mandatory for couples to live apart for a minimum of two years. To clarify on living separately, it's not necessarily that couples would be living in two different locations, rather couples need to provide evidence or prove unequivocally that they have not been living as husband and wife during the one year period of separation. 

Divorce sans Mutual Consent: In the event of a contested divorce, there are certain reasons for making the petition. Without a valid reason, couples cannot possibly get divorced. The possible reasons for divorce are the following, although some aren’t applicable to every religion.

1.     Cruelty

Cruelty could be either physical or mental cruelty. Based on the Hindu Divorce Laws in India, if a spouse has reason to believe or is apprehensive that the other spouse could assault or cause injury which would be harmful then these are valid reasons for getting a divorce. 

2.     Adultery

A man committing adultery in India which means an extramarital affair is liable to be indicted for committing a criminal offense. The wife certainly can seek divorce as a civil remedial measure. Conversely, if the wife is adulterous indictment can be waived. Although the husband can prosecute the adulterous male for committing adultery.  

3.     Abandonment

If a spouse abandons the other spouse for no reason, then the spouse abandoning should be able to provide evidence of his/her intention of abandonment. According to Hindu laws, the abandonment ought to last for a minimum of two consecutive years. Christians, though, are exempted from filing a divorce the reason being abandonment.

4.     Conversion

A spouse can seek divorce if in the case of the other spouse there has been a religious conversion. In this case, instant filing for divorce is permissible as there isn’t any separation period.

5.     Mentally Deranged spouse

The incapability of a spouse in leading a normal married life due to being mentally deranged seeking a divorce, in that case, is permissible.

6.     Communicable Disease

If a spouse is suffering from any transmittable disease, including HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, according to the Hindu Divorce Laws in India the other spouse may seek divorce.

7.     Renouncing the World

A spouse renouncing his/her married life and opting for sanyasa is a valid reason for the other spouse seeking divorce. 

8.     Presumed Dead

If there isn’t any news whatsoever as to whether a spouse is alive for at least seven years at a stretch from reliable sources then presumably the spouse is dead. In that case, the living spouse can seek a decree of divorce from the courts.

What is Alimony ?

As and when two people get married, the onus is on both of them to support themselves. As couples divorce supporting each other does not stop, rather it goes on. Based on the Code of Criminal Procedure, 1973, maintenance rights go beyond to people including either spouse, dependent children and not to mention even poor parents. 

Either spouse can claim but in reality, in most cases, it’s the wife claiming from the husband who ought to be able to provide. While considering the alimony amount that is to be paid, the earning potential of the husband would be taken into consideration and his wherewithal to reclaim his assets and his liabilities in case his wife gets the property.

If either spouse cannot afford the divorce then, in that case, the expenses would be borne by the earning spouse.

Factors influencing the duration and amount of alimony

If it’s a contested divorce, the tenure and amount of alimony would be correlated to the duration of the marriage. Couples contemplating divorce after being married for a decade are eligible for lifetime alimony. The other necessary factors that need to be looked into are:

1. Spouse’s age or the person entitled to get the alimony  

2. The alimony provider’s economic condition or the person’s earnings

3. Both spouse’s health condition is a major factor in considering the alimony amount as the poor health condition of either of the spouses may lead to getting a higher alimony amount from the other spouse.

4. The spouse responsible for child custody would either be paying lesser alimony or could get

a greater amount while the child is a minor.

How are property matters settled?

It hardly matters whether either of the spouses is owners of the property. Regardless of the fact that a petition for divorce has been filed married couples– occupying the property have the right to do so. If a spouse is entrusted with child custody then the case is even stronger. While either one of the spouses may get property rights when it comes to the divorce settlement, until and unless the decree of divorce is final, both spouses can rightfully be occupants of the property.

What about child custody?

It’s a common assumption that the mother would always get custody of her children. However, this isn’t the case. In the case of a mutual consent divorce, the courts usually agree with the parents on whatever they decide, however, the expectation is that the courts would ensure that the best interests of the children are taken care of. In case of a contested divorce, the courts would analyze both the mother’s and father’s ability to being the child’s parent. Money isn’t a consideration. Stay-at-home mothers get custody of their children on a regular basis but fathers are supposed to provide financially.

What is the cost of a divorce?

The court fees are nominal for filing a divorce; paying lawyer fees is essentially the cost of a divorce. Lawyers typically charge fees for appearing and representing clients in court and doing any additional work. The cost of a divorce may be ranging between low ten thousand to lakhs of rupees depending on the intensity of contesting the divorce.

Annulment of marriage

In India, marriages can be dissolved through annulment. Divorce and annulment procedures are exactly the same the only difference being the basis of annulment and divorce differ. Annulment of marriage occurs when fraud is perpetrated, wife gets pregnant through an extramarital affair, and last but not the least, impotence prior to marriage and persisting even as the case is filed. Once an Indian court grants annulment the status of the parties reverts to before the marriage.

Void Marriage

If a marriage is prohibited under the law then the marriage is automatically voided. Section 11 of the Hindu Marriage Act, 1955 lays the instances of a void marriage:

After the commencement of this Act is any marriage is solemnized the marriage will be considered null and void and may, by virtue of a petition put forward by either party to the suit, against the opponent party be pronounced by a decree of nullity if it violates any one of the preconditions stated in clauses (i), (iv) and (v), Section 5 of the Act.

Bigamy: Being legally married to someone else during the marriage is a case of a void marriage and annulment isn’t necessary.

Interfamily marriage: Marriages amongst ancestors and descendants, or amongst relationships like brothers and sisters, whether by the half or the full blood or through adoption.

Marriage between close relatives: Relationships including uncles and nieces, aunts and nephews, or amongst first cousins, whether by the half or the full blood, are all void marriages in the eyes of the law. The only exception being marriages validated by customs.

Voidable Marriage:

In cases of an annulment that is not automatic, it's considered a voidable marriage and one of the parties must seek to make the marriage voidable. Usually, either one of the parties may seek an annulment if at the time of the marriage the intent to get into a civil contract was not clarified for any one of the reasons including mental illness, intoxication, duress or fraud.

How long it might take to finalize a divorce varies on a case by case basis as well as based on location. Usually, divorce proceedings that are contested would take anywhere between 18 to 24 months while mutual consent divorce would vary from 6 to 18 months.



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