Divorce Law

Divorce Law

One of the most significant institutions in our society is marriage. But marriage, one of the most complex relationships, is difficult to keep up, particularly in this day and age when divorces are so common. In order to prevent marriages and families from disintegrating, the Hindu Marriage Act (HMA) is necessary in this situation.

The Hindu Marriage Act, which went into effect in 1955, contributes to the legal homogeneity among Hindus. According to the portions allowed by the Hindu Marriage Act, the law assists persons in filing for a divorce when necessary. One of the world’s most intricate and heavily invested relationships, both financially and emotionally, is marriage. Protecting the rights of the bride and groom in accordance with the Hindu Marriage statute is the aim of this statute.

An Overview of the Indian Divorce Act

In 1869, the Indian Divorce Act was incorporated into the Indian legal framework. Divorce laws and procedures in India differ depending on the couple’s community. As previously mentioned, the Indian Divorce Act of 1869 governs divorce among Christians; the Hindu Marriage Act of 1955 governs Hindu, Buddhist, Sikh, and Jains; the Dissolution of Muslim Marriages Act of 1939 governs Muslim marriages; the Parsi Marriage and Divorce Act of 1936 governs Parsi marriages; and the Special Marriage Act of 1956 governs civil and intercommunal marriages. Although residents of other states who reside in Jammu and Kashmir would be eligible for these rules and conditions, the State of Jammu and Kashmir is not covered by this divorce act.

Importance of understanding the act

Before entering into a legal marriage arrangement, each person must understand the Hindu Marriage Act, which is a very significant law. If not in-depth, a quick overview of the law and its significance can assist the bride and groom realize how serious the situation is and what will happen if they take it lightly. The Hindu Marriage Act protects the rights of both the bride and the groom and helps to establish some principles.

Bigamy

A man is not allowed to have more than one wife at the same time under the Hindu Marriage Act. To marry another woman, a man must officially divorce his current or previous wife. He could be punished under sections 494 and 495 of the Indian Penal Code, 1860, if he doesn’t.

Marriage age

The Indian law establishes the minimum age and suitable age for marriage. For boys, the minimum age is 21, and for girls, it is 18. The married pair may be subject to legal responsibilities if they marry before their marriage has any legal validity.

Restitution of conjugal rights

This implies that a partner may petition the court for the restoration of conjugal rights in the event that one of the parties leaves the marriage without a valid reason. This contributes to the protection and sanctity of the marriage.

Mental stability

If one or both of the individuals getting married are mentally unfit, the marriage is deemed void. In certain situations, the couple must obtain legal approval prior to marriage. Sections 5(ii)(a), (b), and (c) of the Hindu Marriage Act contain these statements.

Marriage ceremonies

A marriage is deemed valid and a couple is legally tied if they are married according to customary rights and ceremonies. Because of this, any child produced from this type of marriage is legally the father’s (the groom’s) obligation and responsibility.

Relevant Divorce rules under the Hindu Marriage Act of 1955

The Supreme Court has announced that, under Article 142 (which grants the Supreme Court the authority to practise perfect justice), it can declare any marriage dissolved or grant a divorce order if it has irretrievably broken down. This allows anyone to avoid the waiting period and seek the Supreme Court directly.

Section 10

Section 10 of the Hindu Marriage Act discusses judicial separation and details the process of legitimately obtaining a divorce, which includes submitting a petition in family court. Sections 13 (i) and (ii) (different portions) provide for the mention of the separation grounds and sections (if applicable) in the petition. Continue reading for more information on this section.

Section 5

Section 5 of the Hindu Marriage Act specifies the prerequisites for a Hindu marriage. It is important to emphasise that the circumstances are discretionary and not necessary, hence it is commonly stated that “the marriage’ may’ be solemnised under the following conditions”. These conditions include the following:

The husband and bride are both unmarried at the time of marriage.
None of them is mentally or physically incapable of consenting to marriage. Furthermore, none of them have any disorders such as recurrent attacks of insanity or epilepsy.
Both are of or have passed the marriage age specified in Indian legislation, which is 21 years for the guy and 18 years for the girl.
None of them fall into the category of forbidden relationships unless the custom or usage regulating each of them allows for marriage.

Section 13

The Hindu Marriage Act’s extensive Section 13 lists a number of prerequisites for getting a divorce. The grounds that can be cited in court to get a divorce are defined in this section. Though Clause 2 of Section 13 only gives grounds for divorce for women, it is important to remember that Clause 1-A, which was enacted in the HMA 1955, permits grounds for divorce for any partner.

Among the grounds listed in Section 13-1 are (i) conversion—the discussion of a Hindu becoming a follower of another religion, such as Parsis, Christianity, Islam, or any other religion that is not Hindu (Buddhism, Jainism, Sikhism, etc.). (ii) Insanity is defined as any mental condition that lasts for an infinite amount of time or that is deemed legally unreasonable for any human being to endure. (iv) Presumption of death; (iii) Veneral illness.
Bigamy, rape, sodomy or bestiality, a decree or order of maintenance (which is subject to issue under section 18 of the HMA or section 125 of the Penal Code—any of these two can help the wife to file a divorce petition), the wife’s separation, the fact that the marriage took place before the age of 15 (which allows the wife to file for divorce before turning 18), and the fact that both partners have been living apart for at least a year are among the grounds listed in section 13-2.

Section 14

Section 14: Divorce According to the Hindu Marriage Act of 1955, a marriage cannot be dissolved if a year has passed since the marriage date. There may be exceptions, though, if certain requirements are met and sufficient evidence is submitted with the petition. According to the Indian Marriage Act, every marriage should be given an equal opportunity at reconsideration and reconciliation in light of the financial, emotional, and psychological costs and harms that may result for each partner. If a child or children are born out of the marriage, this is taken very seriously.

Section 15

The Hindu Marriage Act’s Section 15 outlines each party’s rights to remarry after a divorce decision is issued. The time frame is determined by any appeals against the decree, whether they are new or old. The right to marry legally is void unless there is an appeal against any party that is not denied in a court of law.

Types of Divorce Petitions

According to the Indian Divorce Act, a Christian marriage may apply for divorce with mutual permission (also known as a no-fault or mutual divorce) or with one spouse’s consent only (also known as a fault divorce).

Divorce with Mutual Consent

In accordance with Section 10A of the Indian Divorce Act, 1869, which stipulates that a couple must have been apart for a minimum of two years and that they have not been living together as husband and wife during that time, the courts will take into consideration a divorce that has been agreed upon by both parties.

The pair should be apart for more than a year.
The pair must be able to demonstrate that they have been unable to cohabitate.
Property rights, maintenance, and child custody issues must be jointly agreed upon.

Alimony or Maintenance Issues

The spouses need to agree on three points of agreement. One is the matter of maintenance or alimony. There is no minimum or maximum amount of support required by divorce law.

Custody of the child

The child’s custody will be the second factor taken into account. Depending on what the parties agree upon, child custody in a mutual agreement divorce may also be shared, joint, or exclusive.

Property Rights

Property comes in third. Who gets what property (including immovable and movable) is up to the couples to decide. Everything pertaining to the financial accounts needs to be separated.

Duration of Divorce

Depending on the court’s ruling, a divorce by mutual consent can last anywhere from six to eighteen months.

Dissolution of Marriage (Divorce without Mutual Consent)

Either the husband or the wife may petition for the dissolution of the marriage in accordance with the Indian Diverse Act. Below is a detailed explanation of the requirements under which they can submit the petition:

Petition by Husband

Every husband has the right to ask the District Court or the High Court to dissolve his marriage on the grounds that his wife has been unfaithful since the marriage ceremony. This act states that the Christian Marriage Act may be used to solemnize such a marriage.

Petition by Wife

Any wife may file for the dissolution of the marriage in either the District Court or the High Court. The wife may submit such a petition in any of the following situations:

If her husband switched from practicing Christianity to practicing another faith,
In the event that the husband entered into a marriage with another woman
If her spouse has engaged in incestuous adultery since the marriage ceremony
When bigamy is combined with adultery
When married to a woman who has committed adultery
When it comes to bestiality, sodomy, or rape
If she had committed adultery and shown such cruelty, she would have been entitled to a divorce.
When adultery is combined with desertion for two years or more without a valid justification,

Contents of Petition

Every such petition should include the facts supporting the claim to have the marriage dissolved as clearly as the circumstances of the case allow.

Dismissal of petition

In any of the following situations, the court will reject the petition:

If the court finds that the evidence supporting a petition is insufficient or the petitioner’s argument is not supported,
If the court is not convinced that the alleged adultery has occurred, determines that the petitioner has either condoned the alleged adultery or been complicit in the other party’s adultery or the continuation of the aforementioned form of marriage,
The court will reject the petition if it is prosecuted in conjunction with any of the aforementioned matters or either of the respondents.

Decree for Dissolving the Marriage

The court will issue a decree pronouncing the marriage to be dissolved if it is satisfied and the petitioner’s proof has been proven true. The following cases are exempt from the Court’s obligation to issue such a decree under this act:

Should it conclude that the petitioner has engaged in adultery,
In the event that the petitioner has presented or pursued such a petition with an undue delay,
In the event that one spouse is unkind to the other
If someone intentionally distanced themselves from the other party prior to the adultery complaint and did so without a valid basis,
In the event that the other party has engaged in adultery due to deliberate negligence or misbehavior

Verification by High Court

For the purpose of confirming a divorce decree, the High Court will review the cases. The majority’s view will be upheld in a court with three judges, or When there are two judges on a court, the senior judge’s view will be considered. The High Court has the authority to order additional research or evidence to be gathered if it so desires. The District Judge will certify the investigation’s findings and supporting documentation to the High Court, which will then issue an order upholding the marriage divorce decree.

Grounds of Divorce

Adultery: having a sexual relationship or extramarital affair with someone who is not married.

Cruelty: This involves inappropriate conduct that causes emotional, mental, or physical harm.

Desertion: abandonment by one spouse without the other’s agreement or a valid reason.

Conversion to Another Religion: Conversion from Hinduism to any other religion that is not a part of Hinduism, as previously said.

Mental Disorder: Any mental illness that makes it practically, and emotionally impossible for two people to stay together.

Communicable Disease: This covers sexually transmitted diseases (STDs) or any other illness that could kill the other partner.

Renunciation of the World: This occurs when one partner leaves the marriage, abandoning all material possessions in order to follow their faith or religion, and abandoning their family in all ways.

Presumption of Death: Under the Hindu Marriage Act of 1955, a partner is assumed dead and the petitioner may file for divorce if the partner disappears, becomes lost, is never discovered, or has no records of any kind for seven years or more.

Unsound Mind or Suffering from Continuous Insanity: If there is no therapy for a mental illness with an infinite cure time, the petitioner has every legitimate medical cause to leave the spouse and is therefore eligible to file for divorce.

Juridical Separation

The legal separation between a husband and wife is known as judicial separation, and it is granted by the court upon a petition from either party. The wife and husband’s marital bond remains intact throughout judicial separation, and neither of them is free to get married again. According to the Indian Divorce Act, a husband or wife may seek a judicial separation decision based on adultery, cruelty, or desertion for a period of two years or more without a valid reason. This decree would have the same legal force as a divorce.

Application for Juridical separation

A petition for judicial separation may be filed on the grounds of cruelty, adultery, or desertion for a period of two years or more without a valid explanation. Either the husband or the wife may petition the District Court or the High Court for judicial separation on any of the aforementioned grounds. The court will grant a judicial decree of separation based on the veracity of the claims made in the petition.

Separated Wife

In the event of a judicial separation under the Indian Divorce Act, the wife will be regarded as an unmarried woman for the purposes of contracts, wrongs and injuries, and suing and being sued in any civil proceedings. Her husband will also not be held accountable for any agreements, actions, or expenses she enters into or incurs during the separation.

According to the Indian Divorce Act, the wife in any case of a judicial separation would be regarded as single as of the decree date and for the duration of the separation.
With regard to any property of any kind that she purchases, the divorced wife will be regarded as unmarried.
Being an unmarried woman, the separated wife can dispose of her possessions in any way she sees fit.

Alimony

Married couples are obligated to provide for one another. Any individual who is financially dependent on the marriage is entitled to maintenance under the 1973 Code of Criminal Procedure. Spouses, dependent children, and even parents who are impoverished will fall under this category.

Computing amount of alimony

Depending on whether the husband has enough money, either spouse may request alimony, though the wife typically does. The husband’s earning potential, his capacity to rebuild his fortune (the property is transferred to the wife), and his liabilities will all be considered by the courts when determining whether or not to pay alimony. Note: In some situations, the court may order the husband to pay the wife a certain amount each week or month in order to support and maintain her.

Factors that influence the amount of alimony

In a contested divorce, the length of marriage determines the amount of alimony; if a divorce occurs after ten years of marriage, the spouse is entitled to lifetime alimony. The following are the additional crucial elements that must be taken into account:

The age of the individual eligible to receive alimony
The financial situation or earning capacity of the individual eligible to receive alimony
One of the spouses who will get alimony may benefit from that spouse’s health, declining health, or a medical condition. Their deteriorating health allows them to demand higher alimony.
When the child is still a minor, the spouse who keeps custody of the child may be eligible to receive a higher amount of alimony or pay less.

Property Settlements

The Indian Divorce Act states that a married individual has the right to live in the property regardless of whether a divorce petition has been filed. The case is considerably stronger if that individual is caring for children, and one or both spouses may receive the property as part of the divorce settlement. Until the court issues a decree, both the husband and wife are entitled to stay on the property.

Child custody

In a divorce with mutual consent, the courts will typically accept the parents’ decision; they will be expected to consider what is best for the child. As previously said, non-working moms are frequently granted custody of their children, but fathers are expected to provide financial support. In the event of a contentious divorce, the courts will consider whether the mother or father is capable of being a parent to the child. Learn more about Indian Child Custody