Divorce

What Is Divorce?

Divorce is the process of terminating a marriage or marital union and is also known as dissolution of marriage. Divorce entails the reorganizing or cancelling of legal responsibilities and duties of marriage, thereby dissolving the bonds of matrimony between a married couple under the particular rule of law of the country or state.

THE LAWS GOVERNING DIVORCE IN INDIA

India is a land of diversity. It is a goldmine of culture and customs. The customs and culture changes at rapidly as we move from east to west and from north to south and so do the rituals of marriage and grounds of divorce. Marriage and divorce are a part of personal law thus they are not uniform. The grounds for determining a marriage to be valid and divorce also changes and are thus determined by various laws in India. Some of the laws discussed in the following are:

What is the process of getting a divorce in India as per Hindu Laws?

Divorce can be granted in two processes:

Mutual divorce: Under the Hindu Marriage Act, Mutual divorce is governed by Section 13-B. As the name suggests, in mutual divorce, both the parties i.e. husband and wife mutually agree and express their consent for peaceful separation. The husband and wife have to predetermine the issues relating to alimony and child custody if any. There are only two requirements for filing a mutual divorce, one is mutual consent and the other is that they have to live separately for at least one year.

Contested Divorce: When divorce is initiated by either spouse it is termed as a Contested Divorce. Section 13 of the Hindu Marriage Act, 1955 provides the grounds for filing a contested divorce, some of which are, cruelty, conversion of religion, unsound mind, communicable disease or either spouse is unheard of more than seven-year.

Divorce With Mutual Consent

Divorce By Mutual Consent in India

Divorce by mutual consent is when both the parties agree for a peaceful separation. It is a simple way of coming out of the marriage and dissolves it legally. The main component of such a divorce is the mutual consent of the husband & wife. There are certain aspects to which the Husband & Wife have to reach a consensus. The first is the alimony or maintenance issues. As per Law, there is no minimum or maximum limit of maintenance. It could be any figure. Another consideration is child custody. Both the parties have to come to a consensus over these two topics.

Divorce by mutual consent can be filed when the husband and wife have been living separately for at least 1 year and have mutually decided to end their marriage. A joint divorce petition is filed by the divorcing couple in the court. In this form of the divorce petition, the terms and conditions of such a divorce are reached through an amicable consensus.

Divorce by mutual consent is filed under Section 13B of the Hindu Marriage Act, 1955. After the petition is filed the court gives a six-month cooling off period. The Supreme Court decided that if the marriage seems to be completely irreparable, the court may waive-off this cooling period. Once the cooling period is passed, a second motion is filed and the court grants a divorce

Essentials For a Mutual Divorce

The spouses living separately (whether in the same matrimonial house or separate residence) for a period not less than one year.
There is no scope of reconciliation or adjustment possible between the parties. They have failed all reasons whatsoever to live together.
There is free consent to the agreement of dissolving of a marriage
Any party can withdraw the mutual divorce petition in course of six months from the date of filing of the petition.

Steps in Mutual Divorce

The process of mutual divorce starts with the filling of the divorce petition as given under Section 13 Bot the Hindu Marriage Act,1955. The procedure involves two motions.
1. A signed JOINT PETITION is filled in the court by both parties. This petition contains statements by the partners, they no longer can stay together due to their differences and should be granted the divorce. A settlement deed is also drawn up splitting the assists, custody of the child, etc.
2. APPEARANCE OF THE PARTIES in the family court.
3. EXAMINATION OF THE PETITION BY THE COURT.
4. Once satisfied, the court orders for the recording of statements on oath. Thereafter, an order on the FIRST MOTION is passed. The time period of six months given after which SECOND MOTION is filled within a period of 18 months from the first motion.
5. The most important requirement in mutual divorce is the MUTUAL CONSENT which is the free consent of both parties.
6. After hearing the recorded stamens and many attempts of failed reconciliation, the court will pass a decree of the final divorce.
The biggest advantage of such a divorce by mutual consent is that it removes all unnecessary quarrels and saves time. The parties can file for mutual divorce in the family court of their matrimonial home or in the courts of the city where the marriage was solemnized.

What are the steps involved?

In Mutual Consent Divorce

STEP 1: First Motion involves the joint filing of the divorce petition.

STEP 2: Husband & wife appear before the court to record statements after filing of the petition.

STEP 3: Court examines petition, documents, tries reconciliation, records statements.

STEP 4: Court passes the order on First Motion.

STEP 5: Cooling-off period of six months given to the couple by the court to rethink the decision.

STEP 6: Filing of Second Motion is done within 18 months of First Motion.

STEP 7: Decree of divorce passed by the court.

CONTESTED DIVORCE

In case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a reason.

What are the grounds for obtaining a contested divorce?

Section 13 of the Hindu Marriage Act, 1955 expounds grounds on which contested divorce can be obtained.

Adultery-It is a criminal offense where either of the spouses is involved in sexual relations with someone out of the marriage.
Cruelty-It is defined as a willful act that can cause danger to the body, limb, life, or to mental health. It can include causing pain, abusing, torturing mentally or physically.
Desertion-When a spouse willfully abandons another without any intention of coming back, it is known as Desertion. Desertion for more than two years could be a valid ground for divorce.
Religion Conversion- In a Hindu marriage, if either of the spouses ceases to be a Hindu then it can be considered as a ground for divorce.
Mental Disorder-Mental disorder includes unsoundness of mind, mental illness, or such mental disorder which makes the person abnormally aggressive.
Communicable Diseases and Leprosy-Leprosy is a contagious and chronic disease that causes lesions on skins and nerve damage.
Spouse not heard of-If either of a spouse is not heard of for more than seven years, then it can be considered as a ground for divorce.
Renunciation of the world-Under the Hindu Law, the “Renunciation of the world” is a ground for divorce, if either of the spouses has renounced the world and has entered a holy order.

There are three other grounds for divorce available only to the wife which are:

Husband has been guilty of rape, sodomy, or bestiality.
The wife was married before the age of fifteen.
A decree or order has been given by the court awarding maintenance to the wife and they have not been living together for more than one year

In Contested divorce

STEP 1: Filing of a petition by the husband or wife.
STEP 2: Court issues summons and seeks a reply from the other spouse.
STEP 3: Court may suggest reconciliation.
STEP 4: Examination and cross-examination of witnesses and evidence.
STEP 5: Counsels for both parties present final arguments.
STEP 6: Decree of divorce passed by the court.

THE MUSLIM LAW

The Muslim laws are governed by the holy book of the Quran. The personal laws of the Muslims such as marriage, divorce, succession, etc are derived from the religious holy book of the Quran and therefore there is no specific legal enactment present for the same.

Conditions of a valid Muslim marriage

Muslim marriages are called ‘NIKAAH’. ‘NIKAAH’ is a contract therefore like any other contract there are certain conditions that need to be fulfilled in order to make it valid. The conditions are as follows:

The bride and bridegroom must be clearly identified by name or description
The bride and bridegroom or their agents must be physically present at the marriage
The presence of ‘wali’ is a must. ’Wali’ is the person who does the contract on behalf of the wife.
Dower must be paid to the bride by the bridegroom or his family
There must be two male or one male and two female witnesses present at the marriage.
The marriage must be announced. There must not be any secret.

Modes of divorce

A husband can divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which express the intention to disown the wife is sufficient. The wife can only divorce the husband if she has been delegated such rights by the husband in the agreement. After the Dissolution of Muslim Marriage Act 1939 has been passed, the wife has got various grounds under which she can divorce the husband.

The modes of divorce can be categorized as the following:

Extrajudicial divorce
- By husband- talaq, ila, and zihar
- By wife- talaaq-i-tafweez and lian
- By mutual- khula and Mubarak
Judicial divorce

Conditions of a Valid Talaaq

There are certain conditions which need to be fulfilled in order to declare a talaaq to be valid. The conditions are as follows:

Capacity: the husband must be of sound mind, has attained the age of puberty and has the capacity to pronounce talaq
Formalities: according to Sunni law, talaq must be either oral or expressed in a written document called talaqnama. According to Shia law, talaq must only be in oral form except where the husband cannot speak, or else it is void
Free consent: except for Hanafi law, the consent of the husband must be free from compulsion, coercion, undue influence, fraud, or voluntary intoxication, or else it is void. Under Hanafi law, talaq pronounced under involuntary intoxication is void
Express words: the word talaq must clearly indicate the intention of the husband to dissolve the marriage

What is Alimony?

When two people are married, they have an obligation to support each other. This does not necessarily end with divorce. Under the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage. This will include, therefore, either spouse, dependent children, and even indigent parents.

The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the husband having sufficient means. When deciding the payment on the alimony, the court will take into account the earning potential of the husband, his ability to regenerate his fortune, and his liabilities.

In case either spouse is unable to pay for the divorce, then the spouse who earns will have to pay these expenses.

The following documents are required in divorce cases

Address proof of husband
Address proof of wife
Details of the petitioner’s profession with present remuneration
Income tax statements for the last 2-3 years
Detailed information of the family background of the petitioner
Details of the assets owned by the petitioner
Marriage Certificate
Evidence to show that the spouses are living separately for more than a year
Evidence to demonstrate failed attempts of reconciliation

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