Navigating Divorce Laws in India: What You Need to Know


September 26, 2023, 12:32 pm | Updated September 30, 2023, 5:32 pm IST
Navigating Divorce Laws in India: What You Need to Know
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Table of Contents

Introduction

Divorce laws in India are governed by various personal laws, primarily based on an individual's religion and cultural background. India is a diverse country with a rich tapestry of religions, and as a result, there are different divorce laws applicable to Hindus, Muslims, Christians, and other religious groups. In addition to religious laws, there are also civil divorce laws that apply to interfaith marriages and couples who do not belong to a specific religious group.

Divorce Laws in India

The different types of divorce laws that exist in India are discussed below;

Hindu Marriage Act, 1955

The Hindu Marriage Act is applicable to Hindus, Buddhists, Jains, and Sikhs in India. Under the Hindu Marriage Act, 1955, divorce in India for Hindus, Buddhists, Jains, and Sikhs can be based on various grounds:

  • Adultery

    When one spouse is involved in an extramarital relationship.

  • Cruelty

    When one spouse inflicts physical or mental suffering on the other

  • Desertion

    When one spouse has abandoned the other for an uninterrupted duration of at least two years.

  • Conversion

    If one spouse converts to another religion.

  • Unsoundness of Mind

    If one spouse suffers from a mental disorder.

  • Venereal Diseases

    If one spouse has a communicable venereal disease.

  • Presumption of Death

    If one spouse is presumed dead after seven years.

  • No Resumption of Cohabitation

    If the couple has lived separately for one year.

Procedures

  1. Contested Divorce

    File a petition in the family court and provide evidence.

  2. Mutual Consent Divorce

    If both spouses agree, file a joint petition for a quicker process.

The court also addresses issues like maintenance, child custody, and property division, considering various factors. Legal assistance is advisable for a smoother divorce process.

Muslim Personal Law

Divorce under Muslim Personal Law in India is primarily governed by Islamic principles, as interpreted and applied by different schools of thought within the Muslim community. The primary mode of divorce under Muslim Personal Law is through the practice of "talaq," which means the unilateral repudiation of marriage by a Muslim husband. Here are the key aspects of divorce under Muslim Personal Law:

Types of Divorce

  • Talaq

    • Talaq is the most common form of divorce in Islamic law.
    • It can be initiated by the husband verbally pronouncing "talaq" three times, either in a single sitting (triple talaq) or with intervals over a period.
    • The practice of instant triple talaq was declared unconstitutional by the Supreme Court of India in 2019, making it illegal.

  • Talaq-e-Ahsan

    • This is a more considered and gradual form of talaq.
    • It involves a single pronouncement of talaq, followed by a waiting period (iddat), during which reconciliation attempts can be made.
    • If reconciliation fails, divorce is finalized after the iddat period.

  • Talaq-e-Hasan

    • Similar to Talaq-e-Ahsan but involves three pronouncements of talaq, with waiting periods in between.
    • Divorce is final after the third pronouncement, provided there is no reconciliation.

Procedure

  1. Notice of Talaq

    The husband must provide a written notice of talaq to the wife and the appropriate religious authority.

  2. Iddat Period

    After the pronouncement of talaq, there is an iddat period during which the wife must observe waiting, typically three menstrual cycles or three lunar months, during which she cannot remarry.

  3. Arbitration and Reconciliation

    Efforts for reconciliation can be made during the iddat period through arbitration involving family members and religious leaders.

  4. Final Divorce

    If reconciliation is unsuccessful, the divorce becomes final after the iddat period.

Christian Marriage Act, 1872

Divorce under the Christian Marriage Act, 1872, governs marriages among Christians in India. Grounds for Divorce under the Christian Marriage Act:

  • Adultery

    When one spouse is involved in an extramarital relationship.

  • Cruelty

    When one spouse inflicts physical or mental suffering on the other

  • Desertion

    When one spouse has abandoned the other for an uninterrupted duration of at least two years.

  • Conversion

    If one spouse converts to another religion and the other spouse does not wish to follow the same religion.

  • Unsoundness of Mind

    If one spouse is of unsound mind or has been suffering from mental illness to the extent that it is impossible for the other spouse to live with them.

  • Venereal Diseases

    If one spouse has been suffering from a communicable venereal disease in a communicable form.

  • No Resumption of Cohabitation

    If the couple has lived separately for a continuous period of one year or more and has not cohabited afterward.

Procedures

  1. Contested Divorce

    If one spouse wishes to file for divorce based on any of the grounds mentioned above, they can file a petition for divorce in the appropriate family court. The court will then hear both parties and consider evidence before granting or denying the divorce.

  2. Mutual Consent Divorce

    If both spouses agree to end their marriage and there is no contestation, they can file for mutual consent divorce. This process is relatively quicker and involves both parties jointly filing a petition and appearing before the court. They must also present a joint statement confirming their consent to divorce.

Special Marriage Act, 1954

Under the Special Marriage Act, 1954, which applies to marriages between individuals of different religions or those who do not wish to marry under their personal religious laws. The grounds of divorces under the Special Marriage Act are the same as that of Hindu Marriage Act and Christian Marriage Act. The divorce procedures are as follows:

Procedures

  1. Filing a Divorce Petition

    To initiate divorce proceedings, one spouse must file a petition for divorce in the district court where either spouse resides.

  2. Hearing and Evidence

    The court will hear both parties and consider evidence related to the grounds for divorce. Legal representation is common in contested divorce cases.

  3. Judgment

    The court will render a judgment based on the evidence and arguments that have been presented. If the court finds merit in the grounds for divorce, it will grant the divorce.

Parsi Marriage and Divorce Act, 1936

Under the Parsi Marriage and Divorce Act, 1936, which applies to the Parsi community in India, Grounds for Divorce under the Parsi Marriage and Divorce Act:

  • Adultery

    When a spouse involves themselves in extramarital relationships.

  • Cruelty

    When one spouse inflicts physical or mental cruelty upon the other to a degree that living together becomes unbearable.

  • Desertion

    When one spouse has abandoned the other for an uninterrupted duration of at least two years.

  • Conversion

    In the event that one spouse converts to a different religion.

Procedures

  1. Filing a Divorce Petition

    To initiate divorce proceedings, one spouse must file a petition for divorce in the appropriate family court.

  2. Hearing and Evidence

    The court will hear both parties and consider evidence related to the grounds for divorce. Legal representation is common in contested divorce cases.

  3. Judgment

    The court will render a judgment based on the evidence and arguments that have been presented. If the court finds merit in the grounds for divorce, it will grant the divorce.

Conclusion

It's important to note that divorce in India can be a complex and time-consuming process. Each personal law has its own set of procedures and requirements. Additionally, divorce proceedings can involve issues such as alimony, child custody, and the division of assets, which may require legal assistance.

Moreover, Indian courts have become more receptive to the concept of no-fault divorce, where couples can seek divorce without having to prove fault or wrongdoing on either side. This has made divorce more accessible and less adversarial in some cases.

In recent years, there have been ongoing discussions and reforms regarding divorce laws in India, aiming to make the process more equitable, especially for women. It is essential for individuals contemplating divorce in India to consult with a qualified legal professional who can provide guidance based on their specific circumstances and the relevant laws applicable to their situation. If you want to know more about divorce laws in India or are stuck in complex divorce issues then it is advisable to consult a divorce lawyer in your area. For example, if you are living in Kolkata then you must contact a divorce lawyer in Kolkata.

 

FAQs

  1. How much can a wife claim in divorce in India?

    When alimony is provided as monthly payments, the Supreme Court of India has established a guideline wherein the husband should allocate 25% of their net monthly salary to the wife. However, if alimony is in the form of a lump-sum payment, it typically falls within the range of 1/5th to 1/3rd of the husband's total assets.

  2. What can a wife claim in divorce?

    She can assert ownership over a property in which she has invested her financial contribution. Additionally, she can seek alimony, which is financial support aimed at maintaining or improving her standard of living after divorce.

  3. What is the 7 years rule for divorce in India?

    As per Section 13 (vii) of the Hindu Marriage Act, 1955, if a person has not been reported as alive by those who would typically be aware of their existence for a continuous period of 7 years or more, it is legally presumed that they are no longer alive.

  4. What are the 5 grounds for divorce in India?

    The 5 grounds for divorces in India are as follows;
  • Adultery
  • Cruelty
  • Desertion
  • Conversion
  • Insanity

 

Written By:
Vidhikarya

Vidhikarya


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