Everything You Need To Know About Divorce Laws In India And What To Do

Divorce laws in India and the divorce procedure in India are based on separate religion based laws, so here's a handy primer.

Divorce laws in India and the divorce procedure in India are based on separate religion based laws, so here’s a handy primer.

Divorce is the process of separating from a spouse legally. It can be a traumatic experience or a liberating experience, depending on the couple and their relationship.

India is a country where marriage is considered sacred and a divorce is considered a stigma, especially on the part of a woman. There is actually what most Indians consider the ‘worthy divorcee’, who needs to be a survivor of physical abuse for them to feel any sympathy. Mental, emotional abuse is far more common, but since there are no obvious injuries and women are usually silenced from speaking out about it to be deemed ‘good women’, it is usually not considered ‘enough’.

Fortunately, this is not stopping women from prioritising themselves over others.

Divorce laws in India

So what are the divorce laws in India that come under the various personal laws of each religion?

• Hindu Marriage Act, 1955 is applicable to the divorce of Hindus, Jains, Buddhists and Sikhs.
• Christians under the Christian Marriage and Divorce Act, 1957.
• Muslims by the Dissolution of Muslim Marriages Act, 1939. Since a Muslim marriage is in the form of a contract, here are also some details you can check.
• Parsis by the Parsi Marriage and Divorce Act, 1936.
• Inter-religious and inter-community divorces come under the Special Marriage Act, 1954.

Under these Acts, there are different divorce procedures in India, through which one can file for a divorce, with or without the knowledge of the other spouse.

Grounds for dissolving a marriage in India

What are the grounds for dissolving a marriage under the various divorce laws in India?

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This in-depth article will answer all your questions on divorce under various laws. Some of these include:

• What are the divorce laws in India that come under the various personal laws of different religions?
• What are the grounds for dissolving a marriage under the various divorce laws in India?
• What are the specific provisions for divorce under the specific acts for Hindus, Muslims, Christians, and Parsis?
• When can a wife petition for divorce under Dissolution of Muslim Marriages Act?
• How are the rights of Muslim women protected under The Muslim Women (Protection of Rights on Marriage) Act, 2019?
• What are the 3 types of divorce procedures in India?
• What are the steps to be followed, and documents required when a couple wants to obtain divorce by mutual consent?
• What are the steps involved and documents required to file a petition for a contested divorce?
• What are some important considerations with respect to child custody, alimony, and property division in case of divorce?

According to Section 10 of the Indian Divorce Act, 1869, a spouse can file for a divorce at the district court on the following grounds:

• The spouse has committed adultery, and this is not applicable for Muslim women as limited polygamy is allowed by Muslim law.
• The spouse has converted to another religion.
• The spouse has been suffering from some venereal communicable disease for at least two years
• The spouse is of unsound mind for at least two years.
• The spouse has not been heard from and is presumed dead for at least seven years.
• The spouse has refused to consummate the marriage.
• The spouse has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the order against the respondent.
• The spouse has deserted the petitioner for at least two years.
• The spouse has treated the petitioner with cruelty and has a reasonable apprehension or has caused mental or physical harm to the petitioner.

A look at the divorce laws in India in some detail

The Hindu Marriage Act, 1995

The Hindu Marriage Act, 1955 was drafted to provide a uniform law in the case of marriage to Hindus, Sikhs, Jains, and Buddhists. It is applicable to all of India’s permanent residents who’re not Muslims, Parsis, Jews or Christians.

According to Section 13(1) and Section 13(2) of the Hindu Marriage Act, 1995, a petition for a divorce can be filed on the above-given grounds.

As per Section 13(2)(ii) of the Act, a wife can file for a divorce if the husband does not provide maintenance to his wife despite her living apart. Some of the requirement under this Act are:

• The wife should have filed the petition for obtaining the decree of divorce.
• There should have been an order of maintenance in a case under Section 18 of the Hindu Adoption and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure.
• The couple has been living apart for at least one year.

Special Marriage Act, 1954

The Special Marriage Act, 1954 replaced the old Act III. This Act provides marriage and divorce laws for all people living in India and outside India irrespective of their religion.

A divorce can be filed under Section 27 of this Act by either spouse on the grounds mentioned above. One other ground included in this Act is that a spouse can file for a divorce if their partner is imprisoned for more than seven years under the IPC.

Parsi Marriage and Divorce Act, 1936

A divorce can be filed under the Parsi Marriage and Divorce Act, 1936 under the following grounds.

• The marriage has not been consummated within a year.
• The defendant at the time of the marriage was mentally ill
• The defendant was at the time of the marriage pregnant by some person other than the plaintiff, only if the petitioner was not aware of it at the time of marriage and, the suit has been filed within two years of the date of marriage, and marital intercourse has not taken place after the petitioner came to know of the fact.
• The couple has been separated for seven years.

Christian Marriage and Divorce Act

Christians in India can file a divorce under the Christian Marriage and Divorce Act, 1957. A couple can petition for divorce through mutual consent if they have lived separately for at least two years and have mutually settled the child custody and maintenance. A divorce without mutual consent can be filed if:

By the husband, if his wife commits adultery after their marriage is solemnised and a wife can file for a petition if the husband changes his religion, commits bigamy or has committed adultery along with showing cruelty towards the wife.

Dissolution of Muslim Marriages Act, 1939

A Muslim marriage may be dissolved by court verdict under the Dissolution of Muslim Marriage Act, 1939. Under this Act, a wife may petition for a divorce on the following grounds. The Act is only applicable to women.

• The husband has deserted her for at least four years
• The husband has been imprisoned for a period of seven years or more.
• The husband has neglected or has failed to provide her maintenance for two years.
• The husband has been mentally ill for two years or is suffering from a venereal disease.
• The husband was impotent at the time of marriage and continues to be so.
• The husband has failed to fulfil his marital obligation for a period of three years.
• Having been married off by her father or another guardian before she attained was 15 years of age, the women rejected the marriage before she turned 18.

The Muslim Women (Protection of Rights on Marriage) Act, 2019

This Act criminalises triple talaq and deems it unconstitutional for men to instantly divorce their wives.

The Act provides the following protection to women:

• The pronouncement of talaq by a husband upon his wife, by words, either spoken or written or in electronic form or any other manner whatsoever, shall be void and illegal.
• The husband who pronounces talaq upon his wife shall be punished with imprisonment for a term that may extend to three years and be liable to a fine.
• A married woman upon whom talaq is pronounced is entitled to receive maintenance from her husband for her and her children.
• A married woman shall get custody of her children in the event of talaq pronouncement by her husband.
• Triple talaq is a non-bailable offence unless deemed by the magistrate

Types of divorce procedures in India

Divorce laws in India can be categorised into three. – Divorce by Mutual Consent, Contested Divorce and Void Marriages.

Divorce by Mutual Consent

A divorce by mutual consent can be filed under the divorce laws in India if both the spouses mutually consent to the end of their marriage.

The couple will have to have

• lived separately for at least a year before filing a petition (living separately does not mean in different locations, the couple only needs to prove that they have not been living as husband and wife),
• and have to have reached a consensus on the alimony /maintenance issues, and child custody if the divorce includes children.

Contested Divorce

A petition for contested divorce can be filed if only one of the spouses wishes to divorce. The petitioner can file based on the grounds mentioned above for divorce.

Void Marriage

A marriage that goes against the law is deemed as a void marriage.

• Bigamy- if the spouse is already married to another person, then this marriage is deemed void without any formal proceedings
• Marriage between close family members that can be deemed incestuous
• If there was no intention to enter into a civil contract by either person because of a mental disorder or intoxication.

What are the steps to be followed for the divorce procedure in India?

When a couple agrees to divorce with mutual consent, the court will consider it under Section 10A of the Indian Divorce Act, 1869. Here is a good compendium of what to expect.

Divorce Procedure in India: Steps to proceed in the case of a divorce by mutual consent

• Drafting a petition: stating the reason for seeking a divorce, which both parties have agreed on.
• Filing a petition: A joint petition should be filed by the couple to the family court in the form of an affidavit, where they state that they have not been able to live together for a year or more, and have agreed to a mutual divorce. Both the parties should sign it
• Appearing before the court for inspection: both the parties should appear before the family court with their lawyers for the court to critically observe, and even attempt to bring reconciliation
• Recording statements of the parties: once the court scrutinises the petition, the court passes an order to record each party’s statements on oath
• Final hearing: both the parties with their lawyers should be present for the final hearing, where the parties have to state that they do not have any disagreements in the matter’s alimony, child custody, and property. The court then passes a decree of divorce, which declares that the marriage is dissolved.

The cost for hiring a divorce lawyer, documentation takes anywhere from 5,000 to 10,000. After the recent changes in the divorce law, the procedure can take from two months to six months from the date of filing.

Documents required to file a petition for a mutual divorce:

• Address proof of both the spouses
• Marriage certificate/ Nikah Nama
• Four passport size photos of both the parties
• Evidence of separation for at least a year

Divorce procedure in India: Steps involved in filing a petition for a contested divorce

• Preparing, filing and serving a divorce notice in the court, and to the spouse. The notice should include the grounds on which it is filed
• The spouse to whom the notice is served must respond to the petition
• Divorce discovery- gather information and depositions
• Pre-trial legal motions by the lawyers, and hearings
• Negotiate settlement proposals
• If settlement fails, the divorce goes to trial
• Prepare for the trial with the divorce discovery
• Court trial
• Appeal if the divorce is not granted

Documents required for a contested divorce:

• Address proof of both the spouses
• Marriage certificate
• Four passport size photos of both the parties
• Evidence of separation for at least a year
• Income tax statements of the past few years
• Professional details and current salary
• Family background information
• Property details owned by the couple

The cost for a contested divorce can be anywhere between 25,000 to lakhs.

Important considerations in case of a divorce

Child Custody

Child custody is one of the major factors to be considered in the case of a divorce. The welfare of the children, financial maintenance, and a safe environment are some of the major factors that are to be examined. There are four types of custody.

• Physical custody – where the child’s child’s custody is given to one parent, and the other is given visitation rights
• Joint custody – where the child lives with both the parents in rotation. The court or the parties can decide the duration
• Legal Custody- The parent who has legal custody makes the major decisions in the children’s lives
• Third-party custody- this custody is usually given to the parties’ family if the court deems both the parents as unfit to take care of the child

Here is a good video that explains child custody.

Alimony

The right to maintenance or alimony extends to any person economically dependent on the marriage. This includes spouse and children.

Maintenance is a regular, recurring payment, and alimony is a one time settlement. The court will take into account the earning potential of the spouse and their liabilities. If the other party cannot pay for the legal fees, the earning spouse would be ordered to pay it.

Constraints for determining the alimony

• Age of the person
• Earning and financial status
• The health of both the parties
• Custody of the child

Property division

• Under the current law, the wife is not entitled to the husband’s ancestral property. In the case of property brought jointly, the wife can claim her share.
• Any contribution by the spouse is taken into consideration. Even if the wife has not contributed financially but has given her time and energy towards the house as a homemaker, she is entitled to a share in the place.
• If the property is Stridhan or Mehr, the husband is obligated to return the same.

Divorce can be a traumatic event, even when it is by mutual consent, or an escape from an abusive marriage. The least that can be done is prepare for it by knowing beforehand what to expect, and what to do.

Hopefully, this will help.

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