Marriages in India are considered as sacramental and are therefore associated with religion. And when it comes to ending the marriage which is considered as traumatic incident in the lives of people, they resort to taking divorce either mutually or initiated by either of the party.
Divorce is termed as the dissolution of marriage by way of a legal process in a court of law. In other words, when a divorce decree is passed by a court, it means an end to the matrimonial alliance between the spouses and hence the marriage is being terminated.
Along with the divorce of the husband and wife, other issues related to it include the division of assets and property as well as the child custody dispute. Every religion in India has its own laws and processes governing divorce. For Jains, Sikhs, Hindus, and Buddhists in India, the Hindu Marriage Act of 1955 governs the divorce procedure. The Indian Divorce Act, 1869 regulates divorce laws for Christians, the Parsi Marriage and Divorce Act, 1936 regulates divorce laws for Parsis, and the Dissolution of Muslim Marriage Act, 1939 regulates divorce laws for Muslims. All inter-community weddings are governed by the Special Marriages Act of 1954.
PROCEDURE FOR DIVORCE UNDER HINDU LAW
There are two forms of divorce under Hindu law:
The Hindu Marriage Act’s Section 13-B regulates Mutual divorce. When a couple decides to divorce each other amicably, they declare their mutual consent.
The decision about alimony and, if applicable, child custody must be made beforehand by the husband and wife. There are only two prerequisites for requesting a mutual divorce: one is that both parties must agree to the divorce and the other is that they must have lived apart for at least a year.
The following steps must be taken in order to file for mutual divorce in India:
STEP 1: Firstly a petition is drafted stating the reason for seeking a divorce which is agreed upon by both the parties.
STEP 2: Then this petition is jointly filed before the family court.
STEP 3: The court examines petition and documents after this the court will pass on the order for the recording of the statement on oath.
STEP 4: After this the court gives a 6 months cooling off period to couple to rethink their decision.
STEP 5: After this time the second motion needs to be filed within 18 months and finally the decree of divorce is passed by the court.
A contested divorce is one where either spouse file for divorce. A contested divorce may be filed on any of the grounds listed in Section 13 of the Hindu Marriage Act of 1955, which includes cruelty, conversion to a different faith, mental incapacity, and communicable disease.
Either spouse may seek for a contested divorce based on the aforementioned grounds. The procedure for filing for a contested divorce in India is given as follows:
STEP 1: Firstly a petition is filed either by the husband or wife clearly stating the facts and grounds for seeking a divorce before a family court.
STEP 2: If the court is satisfied Court and decides to move with the case, it issues summons and seeks reply from the other spouse.
STEP 3: After this, the Court suggests for reconciliation and if doesn’t work then proceedings are further continued.
STEP 4: Now, the statements of both the parties are recorded and evidences are submitted.
STEP 5: After the final arguments by Counsels for both parties finally, decree of divorce passed by the court. The aggrieved party can appeal within 3 months of passing of order.
PROCEDURE FOR DIVORCE UNDER THE MUSLIM LAW
There are two forms of divorce under the Muslim Law in India.
It is according to the Dissolution of Muslim Marriages Act, 1939. It can be filed on the basis of the following grounds mentioned under Section 2 of this act:
- The husband’s whereabouts have not been known for at least four years;
- The husband has been given a minimum two-year sentence of jail; and
- The husband has not provided maintenance for at least two years.
- The husband neglected his responsibilities as a husband for at least three years without good reason
- The husband suffered from venereal diseases, had impotence at the time of marriage, or had been mentally ill for at least two years.
- The husband mistreated his wife or wed her when she was less than fifteen years of age.
Divorce by husband
- Talaq-e-Sunnat: In this, the husband only needs to say the talaq aloud once during the tuhr (period between two menstruation). Anytime during the iddat, this talaq may be revoked.
- Talaq-i-hasan: In this, the husband must pronounce the word “talaq” three times during three subsequent periods of tuhrs. Sexual activity should not, however, occur during these periods.
- Ila: In this, the husband takes an oath promising to refrain from sexual activity for a period of four months. After this period of time the marriage is dissolved.
- Zihar: In this, the husband compares his wife to his mother, sister, or any other female who is within the prohibited degree.
Divorce by Wife
- Talaq-i-Tafweez: In this case the husband delegates his wife the right to a permanent or temporary divorce.
Divorce by Mutual Consent
- Mubarat: In this, both the husband and the wife are opposed to keeping the marriage intact. Therefore, one of them may propose a divorce, which becomes irrevocable and dissolves the marriage if the other party accepts it.
PROCEDURES FOR A CHRISTIAN DIVORCE IN INDIA
There are two forms of Divorce under Section 10A of the Indian Divorce Act, 1869:
The parties may submit a petition for dissolution of marriage with the district court if they both agree that they have not been able to coexist peacefully and have been living apart for at least two years.
Either the husband or the wife may file a petition with the District Court on the grounds such as adultery, ceasing to be a Christian or the following grounds:
- Having been mentally ill for a continuous period of at least two years.
- Being affected for at least two years by a severe form of leprosy that is incurable.
- Not been reported as being alive for seven or more years.
- Disobeyed a court order restoring conjugal rights for a period of two years or longer.
- Cruelty, or if the spouse has committed rape, sodomy, or bestiality.
PROCEDURES FOR A PARSI DIVORCE IN INDIA
The grounds for annulment, dissolution, or divorce are listed in the Parsi Marriage and Divorce Act of 1936. They are as follows:
- Either party may seek the nullity of the marriage if such conditions are resulting from natural causes which are preventing consummation of marriage.
- The marriage may be annulled if either spouse hasn’t heard from the other for more than seven years who would have known them naturally.
Section 32 of the act lays down the following grounds for filing divorce:
- When one of the spouses wilfully refuses to consummate the marriage within one year of ceremony.
- If the spouse at the time of the marriage was not aware that the other spouse was mentally ill, the divorce may be initiated as long as it is filed within three years of the marriage.
- A divorce can be obtained within two years of marriage if there hasn’t been any marital intercourse and the wife was carrying a child from a previous relationship at the time of the marriage but the husband was unaware.
- A divorce can be filed within two years if either spouse has experienced cruel treatment, has been coerced into prostitution, has been wilfully injured, or if another spouse has engaged in bigamy, rape, adultery, or is infected with venereal disease.
- A divorce petition may be filed if the other party is serving imprisonment for a term of more than seven years and has already completed one year of the stipulated punishment.
- If one of the spouses has deserted i.e., voluntarily left the relationship for more than two years without any intention of returning.
An individual who belongs to a Parsi community can file divorce only before Special Courts constituted under Section 19 and 20 of the Parsi Marriage and Divorce Act, 1936.