SOMETIMES WE HAVE TO LET IT GOTOPICS ON DIVORCE THAT CAN HELP FOR AN INFORMED DECISION
The term “Divorce” means “a dissolution or end of marriage where all responsibilities and duties of both the husband and wife towards each other are terminated by obtaining an order from a court of law”.
In India, a divorce cannot be granted before the completion of at least one year from the date of marriage, until and unless it is proved, without any doubt, that the marriage is a case of exceptional hardship to either of the parties. A divorce can only be granted if there has been a ‘valid marriage’ between the couple, after performing all the ceremonies/traditions in accordance with custom.
DO YOU REALLY NEED A DIVORCE?
Whether a divorce is required to end a marriage or not, shall depend upon the situation that the couple is in. No two marriages are the same, as are no two divorces. However, there are certain situations which make a divorce inevitable.
Ways in which a marriage can be ended
Contrary to the common belief, the bond of matrimony can be dissolved in more ways than one, which includes out of court settlements- easier and cordial solutions. A long drawn court case is not the only option available to a couple intending to end their matrimonial relation.
The law grants equal power to a husband and a wife to demand divorce from each other. While divorce can be filed for multiple reasons, the statute provides various grounds on which a couple can decide to end their marriage. Even though the grounds for divorce may vary depending upon the couple’s religion as well as the manner in which the marriage has been solemnised, a few grounds are found to be common across the board.
When a marriage fails, the husband and wife begin to blame and accuse each other. These allegations are not true until proven so in the court of law.
Factors that generally lead a couple to the court are-
- IRRECONCILABLE DIFFERENCES:
This is a no-fault ground to obtain a divorce, where neither of the spouses makes any allegations against another; instead they just claim that the marriage is broken beyond repair due to irreparable differences between the couple.
- DOMESTIC VIOLENCE:
Domestic violence is a behaviour involving violence or other abuse by the husband against the wife in a “domestic” setting, such as in a marriage or cohabitation. To deal with this issue, the Domestic Violence Act, 2005 was instituted.
While domestic violence and cruelty may go hand in hand, cruelty may be physical, mental and/or emotional. Any act of either spouse, which puts another’s life or health in danger or makes them believe that their life or health is in danger, amounts to cruelty.
Cruelty has been defined under Section 498A of the Indian Penal Code as well as under various provisions applicable to marriages under different religions.
Adultery is an act by a married man of having consensual sexual intercourse with a married woman. According to our law, only a man can be charged with the criminal offence of adultery. 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 offence. The husband can seek prosecution of the adulterer male and file a divorce petition against the wife.
Dowry is the property or valuable security given or agreed to be given either directly or indirectly by the bride’s family to the groom’s family over the promise of marriage. The Dowry Prohibition Act, 1961 constitutes giving or taking dowry as a criminal offence.
- MENTAL DISORDER:
Where a spouse is incapable of performing the typical marital obligations on account of mental illness, divorce can be sought. In such cases, the parties can also choose the option of annulment of marriage.
If one spouse abandons the other, for a continuous period of at least 2 years, without a valid and reasonable cause then the spouse who has been abandoned can seek a divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it.
|INFIDELITY- The spouse is romantically involved with someone outside of marriage.||IMPOTENCY- Incapacity of the spouse to engage in sexual intercourse, either physically or mentally.||INFERTILITY- Inability of the spouse to reproduce.|
|LEPROSY- Incurable skin disease which causes extreme disability making it difficult to perform matrimonial duties.||SEXUALLY TRANSMITTED DISEASE- Communicable venereal disease which is spread through sexual intercourse threatening the life of the partner.||RENUNCIATION OF THE WORLD- Giving up worldly pleasures thereby ostracising matrimonial norms.|
|NO RESUMPTION OF COHABITATION- The couple refuse to resume their marriage after judicial separation.||REFUSAL TO STAY TOGETHER- The spouse moves out of the matrimonial home without any just cause.||GUILTY OF SEXUAL CRIMES- The husband has been pronounced guilty of sexual offences;|
|BIGAMY- The spouse marries another person without obtaining divorce from first spouse.||ILLEGAL AGE- The wife was of 15 years of age at the time of marriage and repudiated the marriage before turning 18.||MARRIAGE NOT CONSUMMATED- Unjustified denial of the spouse to engage in sexual intercourse resulting in cruelty.|
This is not an exhaustive list since apart from the grounds for divorce given in the statute; there can be numerous other accusations which can be levelled by the spouses against another.
A marriage is a union of two souls, they say. In a lot of cases, this union turns sour, we grow into different people, we grow apart. What do you do when this happens?
You try to resolve your issues, sort them out - sometimes they do, but when they don’t - you think of parting ways. Statistics show an increase of 350% in divorce matters in India over the years.
If you’re cordial enough to sit across each other and discuss about your marriage with your spouse, actually believing yourself and your spouse to come to a conclusion - you ought to go the mutual, uncontested way. However, if you know that there is no way that you both can agree on a simple issue, let alone agreeing to the terms of divorce, you ought to contest a divorce.
In a contested divorce, the parties are generally in conflict with each other and state different grounds for obtaining a divorce.
In a mutual divorce, the parties agree with each other. A joint petition is presented by both the spouses where they mutually agree to end their marriage by reason of living separately for a period of more than one year and that they have not been able to live together.
The parties then have to wait for a period of at least six months before any further steps can be taken. After the six months’ time period has lapsed, upon the proposition of both the parties, if the petition is not withdrawn, the court hears the parties, makes inquiries and passes an order to grant divorce. If more than eighteen months have elapsed before the request is made by the parties before the Court, then such a request is disposed off by the court.
Hence, whether you drag yourself and your erstwhile beloved to Court, or you both agree to an amicable solution - is solely a matter of choice!
Both husband and wife are entitled to certain rights in a divorce case. There are chances that one might not be aware of the rights that the law grants to them. It is important to know the rights one has, before instituting or responding to a divorce petition.
We’ll help you understand your rights - fight for what you want and lead a happy, content life.
Rights of Women
Being termed as the ‘weaker section’ of the society, women are given special protection under the law. To ensure social and financial stability, the statutes lay down the following rights of women-
- Right to Streedhan:
“Streedhan” as the word suggests is essentially the gift (wealth, in any form) that the bride receives at the wedding from her family. According to the law, the ownership rights to Streedhan belong solely to the wife, even if it is placed in the custody of her husband or her in-laws.
- Right to residence:
“Matrimonial home” i.e. the home where a couple resides, belongs as much to the wife as it does to the husband. A wife has the right to reside in the matrimonial household, irrespective of whether it is an ancestral house, a joint family house, a self-acquired house or a rented house.
- Right to a Monogamous Relationship:
A man cannot marry another woman unless he is legally divorced from his first wife. If a married man is in a relationship with a married woman then it would amount to ‘adultery’, which is a criminal offence under the law. His wife also has the right to file for divorce on the grounds of his extra-marital relationship.
- Right to maintenance by husband:
Alimony, maintenance, support or allowance is the undeniable right of the wife requiring financial assistance. The spouse is entitled to claim maintenance to secure decent living standards & basic comforts of life from the spouse as per their living standards.
- Right to child maintenance:
The husband and the wife are under an obligation to provide for their minor child. If the wife is incapable of earning a living, the husband must provide financial support. If both the parents are financially incapable, then they can seek help from the grandparents to maintain the child.
Rights of Men
Men per say had not been given specific rights under the law, as the laws meant for divorce are more inclined towards protecting the rights of women. However, through various judicial pronouncements, the Courts have laid down several grounds on which men are entitled to certain rights in a divorce case-
- Conjugal Rights:
‘Restitution of Conjugal Rights’, laid down under Section 9 of the Hindu Marriage Act, 1955, states that if a wife deserts a husband without any reasonable excuse, the husband can file an application in the court to resolve the issues between them and to make her stay with him.
- Right to Maintenance:
A man is entitled to claim maintenance from his estranged wife, if it is proven that he has insufficient financial resources to sustain himself and the wife is in a financially better position than him.
- Property Rights:
The right to continue living in your marital home is granted to both married partners and neither spouse can force the other to leave. This right applies to both partners unless a court decides otherwise due to circumstantial reasons.
- Right to Custody:
Fathers have a right to claim their child’s custody. Custody does not automatically transfer to the woman just because of the emotional attachment; the courts tend to decide what’s in best interest of child keeping in mind their age, gender, financial stability of the Parent, etc.\
Innocent until proven guilty
Our law presumes that a person is innocent until and unless proven guilty. This right equally applies to men and women. The guilt of an accused is proven by the scrutiny of evidence and the testimony of witnesses, thoroughly examined by the court. There is no prejudice in the mind of the court and the accused person is considered to be innocent until they’re proven to be guilty.
When you're already going through a rough patch in life, not having a divorce lawyer will only make things worse. It wouldn't be wise to suggest that you won't need a lawyer. A do-it-yourself divorce is a gamble, which you possibly cannot afford to play since it does not only affect your life but it will affect your children’s future as well.
Hiring a lawyer to fight your divorce case can add heaps of advantage. A professional will always seek the best recourse to secure your interests. They will know exactly what to present to the court to make your case stronger. The legal processes, drafting and documentation require expertise that only a lawyer can provide. You might miss out on some hidden loopholes in the other party’s claims but a professional won’t - they will use every piece of evidence to secure a judgment in your favour.
When you are already going through major changes in life, not hiring a lawyer can take an emotional, physical and mental toll on you. It would be prudent to hire a divorce lawyer so that all the issues involved in a divorce case like custody of children, maintenance, division of assets etc., can be appropriately presented in the court keeping your best interests in mind.
It is difficult to accurately state the actual cost of a divorce. However, there are certain factors that eventually decide the total cost of the divorce. It has been observed that divorce by mutual consent costs lesser than a contested one. Higher number of disputes on the crucial issues would result in increase of cost. Also, divorce matters that involve the custody of minor children will be more expensive when compared to one with adult children.
The costs involved in a divorce matter can be approximately broken down under the following heads:-
- Lawyer's fee- Retainership fee/ Hourly charge/Charge per session, fee for Court Appearance
- Expenses related to filing and photocopying of documents
- Cost of consultation with experts like accountant, if required
- Cost of appointing mediator, if required
- Cost of travel
- Miscellaneous expenses
Apart from the mandatory heads of cost listed above, there are a few things you can keep in mind to minimise your bill-
- You could reduce your bill considerably by doing your homework in the areas that would eventually save your time. For example, before you first meet your lawyer, jot down a concise note on the backdrop of your case and outlining your present financial position.
- You may list definite areas that you wish to discuss. Segregation of queries as urgent and not so urgent might help you to prioritise and thereby consume lesser time in your session.
- Finally, try to ensure that you reserve long conversations about your emotional state with your close ones, rather than expecting your lawyer to empathise on the same.