Divorce is a personal and social concern that people face and feel in their veins. The laws regarding divorce are different from state, and they depend upon the personal law of an individual, which is based upon the religion in India. It may vary for Hindu, Muslim, Christian or Parsi marriages or if the couple follows the provisions of the Special Marriage Act. Due to this variability of the legal system, it is evident that divorce procedures vary for different factions in India. This blog casts light on Indian divorce rules – the practice of it, the possible grounds for it, the procedures, time, cost, and some of the issues that a divorce case in India entails.
An Insight into the Legal Position of Divorce in India
India’s legal practice has roots of cultural and religious geographic therefore, the laws of divorce vary with the different Indian religious communities. Based on principles there are personal laws which are the marriage laws of a particular community, and there are secularity laws, governing inter-religious marriages.
Hindu Marriage Act, 1955
Since 1955, the Hindu Marriage Act has been in force for Hindus, Buddhists, Sikhs and Jains. It is under this Act that those communities allow for the dissolution of marriage for those who wish to part ways. It permits contentious and mutual consent divorce according to the case of the parties involved. According to the Hindu Marriage Act, divorce can be claimed for some reasons like adultery, cruelty, desertion for a continuous period of not less than two years, and any mental disorder that has not been cured for not less than two years.
Muslim Personal Law
For Muslims in India the legal process of divorce is under Muslim Personal Law, there are three types of divorce namely Talaq, Khula and Faskh. This law is called the Muslim Women (Protection of Rights on Divorce) Act, 1986, about Muslim women’s rights of alimony and maintenance after divorce, and banning the Talaq-e- Bidat which was made illegal by the Supreme Court in 2017.
Special Marriage Act, 1954
The Special Marriage Act is a secular law that applies to Indian citizens regardless of their religion, provided both individuals consent to the marriage. Couples who marry under the Special Marriage Act can also seek divorce under the same law. This Act provides a neutral and legal process for divorce without any religious restrictions. It applies to interfaith marriages or marriages where one or both parties choose to marry under this law.
Parsi Marriage and Divorce Act, 1936
The Parsi Marriage and Divorce Act is specifically designed for the Parsi community, providing the legal grounds for divorce and the process by which it can be initiated. The Act includes provisions for both divorce by mutual consent and contested divorce, and it also addresses the issue of maintenance and custody of children.
Christian Divorce Laws
For Christians in India, divorce laws are governed by the Indian Christian Marriage Act of 1872 and the Divorce Act of 1869. These Acts allow divorce on the grounds of adultery, cruelty, desertion, and other similar causes. The divorce procedure for Christians is quite similar to that followed under the Hindu Marriage Act but with its own set of legal requirements and procedures.
Grounds for Divorce in India
In India, the legislation for divorce chiefly depends upon the regime of personal law under which the parties involved function. Although there are certain similarities in all religions, each legal system examines certain particular causes for the divorce.
Essentials for filing Divorce under the Hindu Marriage Act
The Hindu Marriage Act lists several grounds on which a divorce may be granted:
- Adultery: In the case that one of the partners indulges in extramarital sexual relations, the other partner may sue for divorce.
- Cruelty: This means the wife’s physical and verbal abuse of her husband, as well as the husband’s abuse of his wife. If one of the spouses uses physical or psychological pressure over the other spouse, then the latter has a right to ask for divorce.
- Desertion: If a husband or a wife absents himself or herself from the company of the other without reasonable cause or communication for two years or more, it is sufficient ground for an action for divorce.
- Conversion to another religion: Separation occurs if one of the spouses converts to a religion that does not permit marriage to a Hindu.
- Mental illness: If one of the spouses has a mental illness or has a mental disorder that makes it impossible to continue the marriage, this is a ground for a divorce.
- Venereal disease: Any spouse who gets a communicable venereal disease may decide to file for divorce.
- Unnatural sexual relations: This includes homosexual or other unnatural practices, which makes it possible for someone to legally divorce his/her partner.
Also, there is provision of irretrievable breakdown of the marriage whereby one of the spouses can start an instance of divorce considering the marriage irreparable. However, this ground is not listed in the Act and it is at the discretions of the judiciary.
Grounds for Divorce Under Muslim Personal Law
Muslim law provides several mechanisms for divorce:
- Talaq (for men): A husband can separate his wife through Talaq. Earlier, it meant a husband uttering ‘Talaq’ thrice, but under the Muslim Women (Protection of Rights on Divorce) Act, 1986, it came into force outlawing triple talaq.
- Khula (for women): A wife may ask for a Divorce, if she pays back her mahr (dower) to her husband. Thus, it helps the wife to start a divorce process, and as a rule, the husband has to agree with this action.
- Faskh (Judicial Divorce): A wife can also go to court seeking a divorce on the basis of cruelty, neglect or failure of marriage to perform the marriage duties.
- Irretrievable breakdown of marriage: As in the Hindu Marriage Act, the court may also bring an end to the marriage if it clearly proves that the marriage has reached a point of no return.
Grounds for Divorce Under the Special Marriage Act
The Special Marriage Act 1954 provides the following grounds for divorce:
- Adultery: If the husband cheats on the wife, or if the wife cheats on the husband, the injured partner may obtain a divorce.
- Cruelty: A spouse can sue for divorce if the other has been physically or mentally cruel to them.
- Desertion: A marriage dissolution may be done if a spouse has abandoned the other for a period of not less than two years.
- Conversion to another religion: The marriage may be dissolved if one spouse changes to another religion.
- Mental illness or insanity: Prolonged mental illness or insanity of one of the spouses may lead to a request for a divorce by the other spouse.
- Failure to consummate the marriage: If the marriage has not begun consummation, for instance, due to disability, physical or mental, it may be a basis of divorce.
The Procedure for Divorce in India
The grounds for divorce differ from the law that governs the marriage, as most marriages in India are governed by various laws. The general process for divorce includes the following stages:
1. Filing the Divorce Petition
A divorce process begins with the process of filing a petition with the family court or district court. Such a petition can be filed under the said law according to the religion in which the couple had married or a civil marriage.
- Mutual Consent Divorce: Where both spouses have agreed to live separately, they also agree to the terms of the divorce and the financial issues regarding spousal maintenance, child and property. This is a better and more convenient approach.
- Contested Divorce: If one spouse will not consent to the divorce or disagrees with the grounds, a contested divorce is begun. In this case, the petitioner has to come with the grounds for the divorce.
2. Interim Relief and Maintenance
In any divorce cases, either of the parties can seek an interim order, which includes maintenance order, which is the amount one party is required to provide for the other’s upkeep. This may be granted to the wife, children or even the husband where the spouse is financially reliant on the other. The court also has provisions for child custody for some time and other directions regarding property.
3. Court Hearings and Final Decree.
Once the petition is filed, the court will set down further sessions where the sides to the case will argue out their cases and provide proofs. If the couple has applied for a mutual consent divorce, the court takes about six months before finally passing the divorce order. In contested divorces, the process may take longer due to the need for extensive hearings and evidence.
After all of these processes, the court will make the final judgment the husband and wife are no longer legally bounded together. This decree can also address issues of alimony, child custody and, the distribution of assets.
Conclusion
India bar and with regards to the laws governing divorce, this is because India has a rich cultural and diverse religious demography. I would like to seize this opportunity to acknowledge that though the legal procedures differ from country to country depending on personal laws, the divorce procedures are equally as fair as any other legal process, having their main principles in justice and equality. However, India has not lagged behind in changes to the legal provisions for divorce, the development of gender-neutral laws and resistance to women’s rights. Nevertheless, social perception and factors reduce the process of divorce into a lengthy and tiresome procedure for many.
The topics make it easier for people to understand legal procedure and their legal rights in case of a divorce; it also enables a person to have adequate protection of their rights and welfare in the wake of divorce.
