DIVORCE
The legal dissolution of a valid marriage by a court is known as Divorce. When a marriage breaks up, the divorce laws provide legal solutions for the husband and the wife who are not able to resolve their marital issues by mutual cooperation. The top Divorce lawyer is there for your assistance and is well versed in the divorce laws. Nowadays in our society people are becoming more and more aware of their rights as well as the divorce laws governing them and the number of divorce cases is increasing day by day with the reasons being the waning influence of the family and joint family, growing psychological and financial independence of people. Sometimes things don’t work out and sometimes the adults come under pressure from their family and parents and eventually call off their marriage due to personal differences. Recently there has been a rise in the number of divorce cases. 11,000 approx. divorce cases were filed in 2014 in Mumbai, 8,000 approx divorce cases were filed in Kolkata and a similar number of cases in the major metropolitan cities all over India. The divorce laws not only change the status of the husband and the wife but divorce laws also involve other issues like maintenance for wife and the kids, alimony, custody of the kid(s), property-related issues as well. A divorce lawyer in India can assist you in the divorce procedure. To know the divorce laws of various religions read this divorce law guide below.
In India marriage and divorce laws are divided on the basis of the religion under:-
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Hindu
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Muslim
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Christian
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Parsis
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Christians
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Jews
Hindus
The divorce for people married under the Hindu Marriage Act, 1955 which is also the divorce law provides for the grounds of divorce on which divorce can be obtained in accordance with divorce laws which are as follows:
1. Cruelty
Cruelty may be physical, emotional or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining a divorce under the divorce law due to cruelty by the spouse.
2. Adultery
In India, if a man commits adultery (i.e. has consensual sexual intercourse outside of marriage) then other than being governed by divorce laws he can be charged with a criminal offense. The wife may, of course, file for divorce as a civil remedy. If on the other hand, a wife commits adultery, she cannot be charged with a criminal offense, though the husband can seek prosecution of the adulterer male for adultery. It is provided as a ground of divorce to both under divorce laws.
3. Desertion
One spouse deserting the other without reasonable cause (cruelty, for example) is the ground for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu divorce laws, the desertion should have lasted at least two continuous years.
4. Conversion
Divorce can be sought by a spouse if the other spouse converts to another religion as per divorce laws in India. This reason does not require any time to have passed before a divorce can be filed.
5. Mental Disorder
If the spouse is incapable of performing the normal duties required in marriage on account of mental illness, divorce can be sought under the Hindu divorce laws. If the mental illness is to such an extent that the normal duties of married life cannot be performed.
6. Communicable Disease
If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.
7. Renunciation of the World
If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce under Hindu divorce laws.
8. Presumption of Death
If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have reasonably heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce under the Indian divorce law.
Apart from these grounds, divorce laws also provide additional grounds for divorce available to a wife. They consist of firstly, indulgence of the husband in rape or sodomy, secondly, if a marriage has been solemnized before the Hindu Marriage Act, and the husband has remarried in spite of the fact that the first wife was alive then the first wife can file a divorce petition, thirdly, if a girl has been married before the attainment of 15 years of age and renounces her marriage before she has attained 18 years of age, fourthly, in cases of non-cohabitation for a period of one year and the husband has neglected the judgement of fulfilling the maintenance awarded to the wife by the court. Considering anyone of the above grounds, a wife can file a divorce petition in accordance with the divorce procedure provided in Indian divorce laws.
The divorce under the Hindu divorce law can be either Mutual Consent Divorce or the Contested Divorce. Divorce laws provide that in a Mutual Consent Divorce both parties submit a joint divorce petition for divorce whereas in a Contested Divorce either of the spouse files for divorce under Section 13 of Hindu divorce law. The time period for mutual divorce is 1 to 1.5 years whereas the time period for a contested divorce is 3 to 4 years.
Under the Muslim Divorce Law, marriage can be dissolved either by the death of any of the parties to the marriage or by divorce. A husband may marry immediately after the death of the wife but the widow has to wait for the expiry of a specified time called Iddat as provided by Muslim divorce laws.
Both parties have the option of calling for a divorce under divorce laws from the contract of marriage but the husband has an upper hand under Muslim divorce laws. The husband can dissolve the marriage at his will in the Muslim divorce laws. The divorce under the Muslim divorce law can also take place by mutual agreement. But the wife cannot divorce her husband without his consent in Muslim divorce laws. She can, of course, purchase her divorce from her husband and can have the marriage dissolved by Tafweez (delegation).
A marriage may also be dissolved under the Dissolution of Muslim Marriage Act, 1955.
A Husband may divorce in the following manner as per Muslim personal divorce laws-
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Talaq- which is released from the marriage tie immediately or eventually.
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Ila- where a husband of sound mind takes a vow that he will abstain from all relationship from his wife.
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Zihar- where the husband is sane, adult and compares his wife to his mother or any other female within the prohibited degrees.
A wife may divorce in the following manner under Muslim divorce law-
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Talaqetafwiz-talaq by the wife under the husband delegated power.
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Khula- wife can ask for divorce by offering compensation to the husband.
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Lian- if the husband puts false charges of adultery and unchastity on his wife then the wife has the right to ask for divorce on these grounds under the Muslim divorce laws.
Divorce by judicial decree under the dissolution of The Muslim Marriage Act,1939
The following are the grounds on which a marriage may be dissolved under the Marriage Act which also governs Muslim divorce laws.
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Lian: Where the wife is charged with adultery and the charge is false. She can file a regular suit for the dissolution of marriage as a mere application to the court is not the proper procedure.
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Fask: The cancellation, abolition, revocation, annulment. Before the passing of the dissolution of the Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask.
WOMAN'S RIGHT TO DIVORCE UNDER THE DISSOLUTION OF MUSLIM MARRIAGE ACT. 1939
A Muslim woman may file for divorce on the following grounds in accordance with the Muslim divorce laws-
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When the whereabouts of the husband have not been known for a period of 4 years.
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When the husband has neglected or has failed to provide for her maintenance for a period of two years.
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When the husband has been sentenced to imprisonment for a period of seven years or upwards.
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When the husband has failed to fulfill his marital obligation for a period of three years.
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When the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease.
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When the husband was impotent at the time of marriage and continues to be so.
The woman, having been given in marriage by her father or another guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18 is a ground for valid divorce under Muslim divorce laws. Consult a divorce lawyer in India for obtaining a divorce.
Triple divorce
Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of the Holy Quran nor the approval of the Holy Prophet. Recently, the legislature has passed a law declaring triple talaq as unconstitutional thus raising questions on Muslim divorce laws.
Christians
The divorce proceedings for Indian Christians are held under their divorce laws which are known as the Indian Divorce Act, 1869.
When husband may present divorce petition for dissolution – Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.
When wife may present petition for dissolution- Wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman ;
Other than the above, the divorce laws provide for the following grounds of divorce :
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He has been guilty of incestuous adultery,
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He has done bigamy with adultery,
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He has married another woman with adultery,
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He has committed rape, sodomy or bestiality,
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Has done adultery coupled with such cruelty as without adultery would have entitled her to divorce a mensa et toro,
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Has committed adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Parsis
The Parsi marriages come under The Parsi Marriage and Divorce Act,1936.
If a husband or wife shall have been continually absent from his or her wife or husband for the space of seven years, and shall not have been heard of as being alive within that time by those persons who would have naturally heard of him or her, had he or she been alive, the marriage of such husband or wife may, at the instance of either party thereto, be dissolved under the divorce laws governing Parsis.
Any married person may sue for divorce as on any one or more of the following grounds given under divorce laws for Parsis:—
(a) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it;
(b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit: Provided that divorce shall not be granted on this ground, unless the plaintiff:
(1) was ignorant of the fact at the time of the marriage, and
(2) has filed the suit within three years from the date of the marriage;
27 [(bb) that the defendant has been incurable of the unsound mind for a period of two years or upwards immediately preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the plaintiff cannot reasonably be expected to live with the defendant. Explanation.—In this clause,—
- the expression “mental disorder” under the divorce law means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
- the expression “psychopathic disorder” under the divorce law means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the defendant, and whether or not it requires or is susceptible to medical treatment;]
- that the defendant was at the time of the marriage pregnant by some person other than the plaintiff: Provided that divorce shall not be granted on this ground unless: (1) the plaintiff was at the time of the marriage ignorant of the fact alleged,
(2) the suit has been filed within two years of the date of marriage, and (3) marital intercourse has not taken place after the plaintiff came to know of the fact;
that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offense: Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact;
- [(dd) that the defendant has since the solemnization of the marriage treated the plaintiff with cruelty or has behaved in such a way as to render it in the judgment of the Court improper to compel the plaintiff to live with the defendant: Provided that in every suit for divorce on this ground it shall be in the discretion of the Court whether it should grant a decree for divorce or for judicial separation only;]
- that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to submit herself to prostitution: Provided that divorce shall not be granted on this ground, if the suit has been filed more than two years
- after the infliction of the grievous hurt, or
- after the plaintiff came to know of the infection, or
- after the last act of compulsory prostitution;
- that the defendant is undergoing a sentence of imprisonment for seven years or more for an offense as defined in the Indian Penal Code (45 of 1860): Provided that divorce shall not be granted on this ground, unless the defendant has prior to the filing of the suit undergone at least one year’s imprisonment out of the said period;
- that the defendant has deserted the plaintiff for at least 2[two years];
- that an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for [one year] or more since such decree or order;
- that the defendant has ceased to be a Parsi [by conversion to another religion]: Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact.
The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries irrespective of their religion or faith followed by either of the parties. The act also provides for the divorce laws for the people who have married under this act.
Subject to the provisions of this Act and to the divorce laws and rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife with the help of divorce lawyer in India on the ground that the respondent:-
- has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
- has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
- is undergoing a sentence of imprisonment for seven years or more for an offense as defined in the Indian Penal Code.
- has since the solemnization of the marriage treated the petitioner with cruelty, or has been incurability of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,—
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the expression “mental disorder” under divorce laws means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
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the expression “psychopathic disorder” under divorce law means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or
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has been suffering from venereal disease in a communicable form]; or
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has been suffering from leprosy, the disease not having been contacted by the petitioner; or
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has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive;
A wife may also present a petition for divorce as per the Indian divorce law to the district court on the ground,—
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
either party to a marriage may present a petition for divorce to the district court on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
No party can file for a petition for divorce within one year of the solemnization of the marriage.
The Irretrievable breakdown of Marriage
The Marriage Laws (Amendment) Bill, 2010 which included the divorce laws incorporated another ground for seeking divorce under the Indian divorce laws, namely the ‘Irretrievable breakdown of marriage’ under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. As the term suggests, it leads to a situation whereby, either or both the parties to the marriage find it impossible to peacefully cohabit with each other, due to personality clashes, differences in opinion and have lived separately from each other for a long period of time and are no longer too eager to further carry on their matrimonial relationship.
Filing for the Petition for divorce
Every petition for divorce in India should be filed in the District Court as per the procedure laid down in the divorce laws within the jurisdiction of which
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The marriage was performed as per the ceremonies and rituals,
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Both parties to the marriage dwelled,
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The other party at the presentation of the petition resides; or
Where the petitioner is residing at the time of presentation of the petition in case the other party is residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years or more.
Divorce laws provide that Every petition should include the following details:
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The facts or details on the basis of which relief is sought for by the party seeking a divorce,
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Both the parties have not collaborated together to deceive the court by filing for a divorce,
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The averments made in the petition are subject to verification by the petitioner or any other reliable person.
Section 125 of the Code of Criminal Procedure, 1973 talks about the order for the maintenance of wives, children, and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
- his wife, unable to maintain herself, or
- his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
- his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
- his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means –
- ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
- ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such
The magistrate may consider any grounds of refusal stated by her and may make an order under this section notwithstanding such offer if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favor an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
The ideas and expectations of the husband and wife vary and sometimes their differences are such that they cannot be solved even after trying. However, it is always advisable to go with the legal proceedings carefully and seek proper legal help from divorce lawyers, before going ahead with a divorce.
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