Divorce in India

The article analyses the divorce laws in India, including religious personal laws, and their validity and recognition. Each religion has its own set of laws relating to marriage and divorce. However, couples can also be governed by the Special Marriage Act that can dicdate such divorce proceedings.

Divorce in India is governed under different laws for different religions i.e. Hindu, Sikh, Muslims, Christians etc. The laws formulate the grounds, process and rules of granting a divorce that is acceptable in the eyes of law. Divorce can be filed under two categories namely:  

Divorce by Mutual Consent: This form of divorce is simpler, time-saving and fast, provided all the conditions of a mutually  consented divorce are fulfilled. The utmost requirement here is the mutual consent of both husband and wife to file for divorce. The best way for both the parties is to see all the possibilities mutually and settle issues pertaining to maintenance, child custody, financial arrangements etc.  

Contested divorce: If any of the two parties in marriage intends to dissolve their marriage, then aggrieved party or contesting party has to seek the relevant grounds of divorce in their respective religious law in order to file the case in the court of apt jurisdiction. Here, the parties have to present the evidences and documents to support their case as per the procedure mentioned in the respective Acts. Once it is proved successfully, divorce will be granted by drawing the decree.  

Grounds for divorce under different religions:   Person of Hindu, Sikh and Jain religions are governed by Hindu Marriage Act, Christians are governed under Indian Divorce Act-1869 and the Indian Christian Marriage Act, 1872, Muslims are regulated by Personnel Law of Divorce, Dissolution of Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce Act, 1986. Above all, there is a secular law that is open for all the people irrespective of their religion, i.e. Special Marriage Act, 1954. Let us  take a look at the grounds of divorce for following religions under their religious Acts:-   

Hindus: 

  In accordance to Hindu Marriage Act, any solemnized marriage can be terminated by a divorce decree, by either of the two spouses filing a  petition on following said grounds:-

• Adultery: where the person had intended physical relationship with a person other than his/her spouse.   
• Cruelty: The aggrieved party has been treated cruelly after marriage in terms of physical or mental torture.   
• Desertion: The spouse of the aggrieved party has deserted the spouse without giving any reasonable cause or without the consent or against the wish of aggrieved party for a period of 2 years, urgently prior to the date of filing the petition for divorce.   
• Change of Religion: If the person has changed his religion and is no longer a Hindu due to conversion to some other religion.   
• Unsound mind: The spouse is mentally unstable or has been suffering from intermittent mental disorder of such a kind and to such an extent that the aggrieved party cannot reasonably be expected to live together with his/her spouse. Here, mental disorder includes mental illness, incomplete or retarded development of mind, psychopathic disorder or other mental disability including schizophrenia.   
• Incurable leprosy: The spouse of aggrieved party is suffering with virulent type of leprosy.   
• Venereal Disease: The spouse is suffering from a disease which is of communicable form.   
• Renunciation for religion: The spouse has repudiated the world by joining a spiritual or religious order.   
• Not alive for 7 years: The person has not been seen or heard to be living for a period of 7 years or more by parties known to him and has been declared dead.   
• Irretrievable Breakdown of Marriage: It has been added after the passing of The Marriage Laws (Amendment) Bill, where both the parties to marriage find it impossible to live together and have lived separately from each other for a long period of time and thus do not intend to continue their matrimonial relationship.    

Muslims:

There are two categories under Muslim Law:-Extra Judicial Divorce and Judicial Divorce. 

Judicial Divorce: As per Dissolution of Muslim Marriage Act, the woman married under Muslim Law is entitled to acquire a divorce decree on following grounds:-    

• The husband’s position or location has not been known for about 4 years.   
• The husband failed or ignored to provide the wife with maintenance for a period of 2 years.   
• The husband is sentenced to jail for 7 or more years;   
• The husband has failed to execute his marital obligations for 3 years without any justifiable cause.   
• Due to impotency of husband at the time of marriage and up till the date of filing petition also.   
• The husband was mentally insane for a period of 2 years or is troubled with any virulent or venereal disease or leprosy.   
• The aggrieved wife is married at an unsuitable age of less than 15 years or rejected the marriage before such party attained the age of 18 years. It is subject to the condition that marriage has not been consummated.   
• That husband treats her with cruelty, where cruelty has been defined in detail under the said Act. 

Extra judicial divorce: In Islamic law, the husband can dissolve the marriage at will on the ground of irretrievable breakdown in marriage . It is differently known as Talaq, Ila and Zihar. 

• Christians: According to Indian Divorce Act, husband professing Christianity can file petition for divorce on the ground that his wife has been guilty of adultery. On the other hand, a wife can request for dissolution of marriage after solemnization on following grounds: 
• The husband has exchanged his profession from  Christianity to another  religious profession and thereby, indirectly married another woman. 
• The husband is guilty of incestuous adultery or bigamy with adultery or marriage with any other woman with adultery; 
• He is guilty of rape, sodomy or bestiality; 
• He is guilty of adultery with cruelty; 
• He is guilty of adultery with desertion without any reasonable cause for 2 or more years. 

1. Special marriage act:

This Act clearly provides the grounds of divorce as under:- 

• The respondent since solemnization of marriage has committed adultery. 
• The respondent has deserted the petitioner without any valid excuse for 3 or more years immediately preceding the petition date. 
• The respondent is serving an imprisonment sentence for 7 or more years for an offence committed under the Indian Penal Code sections. 
• The respondent has treated the petitioner with cruelty after marriage. 
• The respondent has been mentally unstable for a continuous period of not less than 3 years prior to the filing of the divorce petition. 
• The respondent is suffering with leprosy or communicable disease or a disease not having been contracted from the petitioner for 3 or more years immediately preceding the date of petition. 
• The respondent had been alive but has not been heard of as being alive for a period of 7 years or more by known persons i.e. who naturally would have heard from him/her. 
• In case husband is guilty of rape, sodomy or bestiality, then wife can file the divorce petition.
• Irretrievable Breakdown of Marriage: It has been added after the passing of The Marriage Laws (Amendment) Bill, where both the parties to marriage find it impossible to live together and have lived separately from each other for a long period of time and thus do not intend to continue their matrimonial relationship.
   
• Divorce procedure under different laws: Hindu/Sikh/JainProcedure for filing divorce by mutual consent:

1. Both the parties can start the procedure by filing the petition in the court of appropriate jurisdiction along with affidavits from both the spouses. It is known as first motion petition, which comprises of a joint statement from both the parties stating that they cannot stay together and the irreconcilable reasons behind their intentions. 
2. In general, the second motion can be filed after the reconciliation period of 6 months only, but this can be waived off by the Supreme Court on serious circumstances of the situation. 
3. After  6 months elapse, the second motion is to be filed by the parties and they are required to appear in person before the court for respective hearings of the case. 
4. Once the judge is satisfied that all relevant grounds for the divorce are met, the mutual consent divorce is passed. 
5. The petition must cover all the significant issues i.e. child custody, alimony, financial arrangement etc. and both the parties should have mutually agreed on the same. 
6. If either of the party withdraws the petition within 18 months of filing the first motion petition and he/she refuses to consent for the divorce petition, then court will not have the right to pass the decree.

Procedure for filing divorce by contest 

1. If either of two parties to marriage wish to seek divorce from his/her partner on any of the grounds mentioned in the act and the other party contest it, then the party must hire a lawyer to present his/her case. 
2. A formally drafted petition stating his/her grounds of divorce along with the photocopies of documents like income tax statements for preceding 2-3 years, details of his profession and current salary income, information about his family background, property and asset details owned by petitioner. 
3. The petitioner will sign a ‘vakalatnama’ which authorize the lawyer to represent him in court. 
4. After filing the petition in the court, a notice and copy of petition will be sent to estranged spouse. It will notify the spouse to appear in the court on a specified date. 
5. The court will hear both the parties, consider the validity of the evidences in support of the petition and thereby, pass his judgment/decree  being duly satisfied. The court will also decide on child custody, alimony and  maintenance etc. and accordingly, pass the judicial order which is binding on both the parties, unless any of the two parties go for appeal in higher courts.

2) Muslim: Divorce by Mutual agreement (Khula & Mubarat):It is basically an act of parties where no court intervention is needed.

• In Khula, both wife and husband sign an agreement to dissolve their marriage in lieu of monetary compensation paid by the wife to her husband out of her owned property. Once the husband gives his consent, it is an irrevocable divorce. 
• In Mubarat, both husband and wife happily consent to part ways  and enter into mubarat, where all their mutual rights and obligations end.

Judicial Divorce where wife seeks for divorce 

• The wife can file a petition in the court on any of the grounds mentioned in the dissolution of Muslim Marriages Act, 1939. 
• There is a need to submit respective documents which vary with the ground of divorce. 
• The court will  examine  the presentation of evidences and documents before granting the decree of divorce. It will hear both the parties.

Christians & other person of different religion: Procedure under Special Marriage Act 

• The petitioner, i.e. the party seeking divorce file a petition with the district court of apt jurisdiction. 
• The petition must state the nature of the case, grounds  of divorce as per the said Act, statements of the petitioner etc. and other important requirements. The lawyer hired by the petitioner will present the case before the court. 
• Every proceeding is recorded under CCTV surveillance and cannot be published or printed. 
• The notices will be sent to the other party  to appear before the court on mentioned hearings, once the court acknowledges the petition. 
• The court will hear both the parties in the light of presented evidences, documents etc. and will pass the decree after it is satisfied. It will also pass relevant judgments on child custody, alimony & maintenance etc. accordingly.

It is important to see that the parties filing divorce should not deceive the court and the statements mentioned in the petition should be verified by petitioner and a third party.

Judicial Separation Judicial Separation is a provision under the Indian marriage laws, wherein both the husband and the wife get an opportunity to introspect about giving a chance to their marriage, before going ahead  with the divorce proceedings. Under a decree of Judicial Separation, both the parties live separately for a period of time getting adequate space, independence and time to think about continuing their marriage or not.  During this phase, both the parties still carry the same legal status of being husband and wife and yet at the same time live separately. .

Grounds for Judicial Separation: The following grounds on which Judicial Separation can be granted: 

• Cruelty – Either of the spouse or both are cruel to  one another. 
• Desertion – Either of the spouses is not alive and is missing for  seven years or more . 
• Adultery – Either of the spouses is being cheated upon by other spouse. In case a husband or a wife knows that their respective spouse is married and that the other person is alive during this petition; then the grounds for judicial separation strengthens. 
• Forced conversion of religion – Either of the spouses is forcing the other one to change and convert his/her religion. 
• Incurable diseases such as leprosy, cancer, Ebola, etc. 
• Insanity or abnormality – Either of the spouses is not in a sound condition. 
• Venereal or sexual diseases – Either of the spouses is suffering from sexual diseases such as HIV, AIDS, Genital Herpes, Syphilis, etc. 
• Accused/convicted of , Sexual Harassment, Molestation, Bestiality and Sodomy. 
• Renunciation of the world by either of the spouse on religious or spiritual grounds. 
• Child marriage – Either of the spouses is married without his/her consent before attaining 18 years of age.

Difference between Judicial Separation and Divorce Although the procedure of dealing defended and undefended proceedings for both judicial separation and divorce are similar, yet there are certain differences between them.  Explore them as follows: 

• Judicial Separation does not terminate marriage whereas in divorce the parties are no more husband and wife and hence the marriage ends. 
• While undertaking proceedings for judicial separation, the court does not have to consider that the marriage is permanently closed or broken down, whereas in divorce it is required while presenting the petition. 
• Both the parties can file for judicial separation any time post marriage, whereas in case of divorce the parties can only file for divorce  after completion of one year of marriage. 
• A judicial separation goes through one stage judgment procedure however, divorce goes through a two stage judgment process. 
• There are certain provisions in Matrimonial Causes Act 1973 that are applicable to divorce but are not applied to judicial separation petitions, irrespective of going through a two or five year separation period. 
• Judgments with respect to Wills are not applicable in case of Judicial separation. In case the parties are undergoing a separation,  and if one of the spouse dies, then the existing spouse will not  benefit out of it and thus the property will devolve.

What are the exceptions or special cases? NRI Divorce: If a marriage involves one or both NRIs , then our legal system does not provide exhaustive laws for marriage or  divorce. If partners file for divorce by mutual consent and have got married as per Hindu Marriage Act, then divorce can be sought  as per the procedure laid in the Act. But, if both parties to the proceeding are residents of a foreign country, then they can file a mutual consent divorce under the legal provisions of that foreign country only, which would be recognized by the Indian legal system as valid. .If it is not by mutual consent, then the divorce laws specified for NRI in respective Acts are to be  Interpreted on a case-to-case basis.

Ex-parte Order in Divorce petition: If any of the two parties or their respective lawyers fails to appear in all the proceedings, then the court will pass the notice regarding ex-parte proceedings, but if the party or the lawyer does not  appear in the said proceeding, then ex-parte decree is passed. The appeal of this decree has to be made in the trial court  and then to a higher courts, if necessary.

Appeal process 

• The divorce decree is appealable U/s 28 of the Hindu Marriage Act / U/s 39 of the Special Marriage Act and the appeal against the decree is to be filed within 30 days from the date of decree. Any orders pertaining to child custody and alimony are also appealable. In Hindu marriages, the appeal period can be relaxed from 30 days to 90 days. 
• There will be no appeal on the subject of cost and expenses. 
• The appeal can be filed in High court and then to the Supreme Court. The decision passed by the Supreme Court is final and binding on both the parties. 
• The appeal petition should provide succinct information with regard to proceedings in district court chronologically provided with the relevant dates. 
• The relevant facts are to be provided in the appeal if subject matter does not  involve valuation. 
• An appeal petition should include 7 copies of judgment and divorce decree appealed from and a ‘certified copy of certificate’ provided by the decree passing court.

The importance of appeal limitation is that it allows the divorced couple to remarry without the fear of challenge to a family court decree .Divorce is legally a painful process. Divorce by mutual consent in all the religious acts in India is the simplest way to dissolve the marriage as it takes lesser time. But  under divorce through contest, the period varies from 2 years to more.

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