This article captures laws about divorce in immense detail so you have a fair understanding of Divorce Laws & procedure in India. Through this article, we tend to answer the following questions: What are the Laws about Divorce in India? What is the procedure to get the Divorce in India? When can one file for a divorce? What are the laws about divorce with mutual consent? What are the laws about divorce without mutual consent? In case you have any of the questions about Divorce Laws in India, then you may find this article helpful.
They say marriages are made in heaven. But not all marriages result in a ‘happily ever after.’ Not all are a fairy tale. Some unions are just not meant to be. And hence, divorce is a solution when a marriage fails or completely breaks down. Indian Divorce laws form the foundation on which a marriage can be legally ended in India.
There are several reasons when married partners seek a divorce, and choose to go to separate ways. It is far better and happier solution, than compromising and living together for decades. The divorce process can be emotionally, socially, and legally overwhelming. However, it is important to know the laws about divorce because the legal systems in India are perceived as confusing and formidable. Also, the law of divorce is slightly different and dependent on the community of the spouses.
Laws About Divorce in India – What are the Legal Rights in Marriage? What are the Grounds for Divorce? And More.
Divorce Laws and Procedure in India
For Hindus, Buddhists, Jain, and Sikhs, the divorce laws are governed by the Hindu Marriage Act, 1955. For Muslims, the Dissolution of Muslim Marriages Act 1939, for Christians the Indian Divorce Act 1869, and for Parsis, Parsi Marriage and Divorce Act 1936 are followed for the respective divorce laws. In case of interfaith marriages, divorce is governed by the Special Marriage Act 1956.
Either the husband or wife can initiate a divorce by sending a legal notice to the other. A divorce petition is filed and needs to be responded to by the other party. Both require an attorney to represent them as the matter is heard in the Family Court. Both the parties gather the information and prepare witnesses. Post which, the legal proceedings are initiated and negotiations and settlements take place . Sometimes, negotiations and settlements also take outside the court based on the consent of both parties. In case any of the party isn’t satisfied with the settlement, they can appeal in the higher court.
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When can one seek a divorce?
There are two types of divorce petitions in India. According to Indian divorce laws, spouses can file for a divorce by mutual consent and divorce without mutual consent.
Indian Divorce Laws with mutual consent
A divorce with mutual consent is when both the wife and husband decide mutually to divorce. However, the couple needs to show in court that they have been living separately for one to two years. According to Section 28 of the Special Marriages Act, 1954 and Section 13 B of the Hindu Marriage Act, 1955, the couple must be living separately for a year.
But according to Section 10A of the Indian Divorce Act, 1869, the spouses must be staying separated for two years. It doesn’t necessarily mean living in separate homes. But they should prove that they have not been living as husband and wife for the stipulated time.
The law about divorce with mutual consent is relatively easier to navigate since the spouses are not at loggerheads. Various matters, such as the alimony, custody of children (if any), and sharing of property, are also mutually decided.
Divorce without mutual consent
If either of the spouses is unwilling to divorce, the other partner can file a divorce petition for certain specific reasons. Let’s look at the concrete grounds on which a divorce without mutual consent can be filed.
Adultery is one of the reasons on which either spouse can file for divorce. Under the law of divorce, adultery amounts to having sexual intercourse with another person outside of marriage. However, the intercourse has to be voluntary by both individuals who are not legally wedded to each other. A single act of adultery is enough to file for a divorce. Also, naming the adulterer is required while filing the petition.
If either of the spouses has deserted the other for more than two years, a divorce petition can be filed. One has to note, that desertion doesn’t necessarily mean abandoning or neglecting the spouse physically. But emotional desertion can also be a reason. Also, the intent to desert needs to be proved.
If one spouse feels that the other’s conduct or action can lead to injury or harm, then a divorce petition can be filed on the grounds of cruelty. As per the divorce law, any form of violence and abuse, whether physical, emotional, or psychological can amount to a valid reason.
An unstable mind that inhibits either spouse to perform duties or live normally as a married couple is another ground for divorce. The laws about divorce make it clear that mental illness only after marriage is permissible as a valid basis. If the illness is known before marriage, then it cannot act as grounds for divorce. The Mental Health Act, 2015 helps to understand the scope of unsound mind.
Communicable disease and presumed death
If a spouse has any communicable disease, such as HIV, AIDS, etc. the other can obtain a divorce. Also, if the wife or husband is missing and not seen alive for seven years, the other partner can file for a divorce.
If any spouse converts into another religion or renounces worldly affairs, the other can file for a divorce.
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Additional Grounds Available to Wife to file the divorce
As per Hindu Marriage Act, 1955, the law provides some specific grounds for women to file for divorce. These grounds are also available to women who practice other religions.
In case if the husband has re-married without taking a divorce from the first wife, the wife from the first marriage can file for divorce on grounds of bigamy. Because a limited polygamy is allowed in Muslim law, hence, this ground doesn’t apply to Muslim women. Other than being a ground for divorce, bigamy is a criminal offence under Indian Penal Code.
Rape, Sodomy, Bestiality
In case husband forces wife into any form of unnatural or non-consensual sexual intercourse then the wife can file for divorce on grounds of rape, sodomy and bestiality. Rape, sodomy and bestiality continue to be crimes under the India Penal Code and along with being grounds for divorce that are available to the wife.
At the time of Puberty
In cases of child marriage, if the wife is above fifteen years but under eighteen years, she has the right to ask the court to dissolve the marriage on attainment of puberty. As per the legal system in India, the courts allow child brides to exercise this right with the core objective to protect those who may have been forced into marriage.
Knowing the laws about divorce is the important for every citizen. Marriage is a partnership that may or may not necessarily work out for the best. The laws of divorce helps to try to make it as fair as possible.