A Guide to Divorce Law amongst Hindus in India.
Legally, the term 'Divorce' means cessation of the marital bond. A decree of divorce puts an end to the marital bond and the parties no longer remain as husband and wife. Applying for divorce, be it mutual or otherwise, is in itself a gruesome task for any couple, for the simple reason that they are a time taking and costly affair, and thus before opting for divorce either party to the marriage must seek proper legal advice and should be aware of their legal rights.
In India, akin to most personal and family matters, the fundamental rules for divorce are governed by the respective religion. Divorce among Hindus, Buddhists, Sikhs and Jains is collectively governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956. In this article, however, we will strict our discussion to divorce law contained under the Hindu Marriage Act, 1955 ('HMA').
In order to formally initiate the divorce proceedings, the first step is to break the ‘husband and wife’ connection by sending a 'Legal Notice for Divorce' to the other spouse so as to clarify the emotions and convey one's thoughts on discontinuing the existing relationship. Such a legal notice, however, is not compulsory or required under the HMA, but, the same will communicate a spouse's intention to take legal steps forward for determining the future of the matrimonial relationship.
Types of Divorce.
There are two ways a couple can seek divorce. In a case where one person may want to resolve the dispute, while the other doesn’t and remains adamant to the point of seeking separation by divorce – such disagreements lead to having the matter taken before the Court and for having a judge to decide whether the plea for divorce made by a party is just and right. Such a contest for divorce is known as ‘contested divorce’ or 'divorce without mutual consent' in popular language.
In other situations, where both parties mutually agree to dissolve their marriage amicably, a 'divorce with mutual consent' can be sought.
1. Divorce without Mutual Consent or Contested Divorce:
In this form of separation, a person has to contest against his/her spouse to get a divorce. According to HMA, in case of a contested divorce, there are specific grounds on which the petition can be made. Section 13 deals with the grounds of divorce. Section 13(1) and 13(1A) deals with grounds that are available to both husband and wife, while, Section 13(2) deals with grounds that are available to the wife only.
Grounds Available to both Husband and Wife:
Adultery [S. 13(1)(i)].
Cruelty [S. 13 (1)(ia)].
Desertion for a continuous period of not less than 2 years [S. 13(1)(ib)].
Conversion [S. 13(1)(ii)].
Unsoundness of Mind or Mental Disorder [S. 13(1)(iii)].
Suffering from Venereal Disease [S. 13(1)(v)].
Renounced the world [S. 13(1)(vi)].
Presumption of Death [S. 13(1)(vii)].
Non-resumption of cohabitation for more than one year after passing of the decree of judicial separation or decree of restitution of conjugal rights. [S. 13(1A)(i) & S. 13(1A)(ii)]
Grounds Available to Wife only:
Bigamy [S. 13(2)(i)].
Husband guilty of rape, sodomy, or bestiality [S. 13(2)(ii)].
Non-resumption of cohabitation for more than one year after passing of the decree of maintenance [S. 13(2)(iii)].
Marriage solemnized before she attained the age of fifteen years [S. 13(2)(iv)].
Based on any one or more grounds as mentioned above, the aggrieved party will file a case in the Family Court having proper jurisdiction and will have to prove and satisfy the court of the existence of such ground(s) after relying on suitable evidence and documents. Divorce will be granted only if the aggrieved party is able to prove his/her case.
General Steps Involved in a Contested Divorce:
Deciding the grounds on which the aggrieved spouse (petitioner) wants to file a divorce case against the erring spouse.
Collecting all the documents and evidence that will help the petitioner to prove his/her case.
Filing of a petition in the court having proper jurisdiction along with all supporting documents and evidence.
After the petition is filed, the court will summon the other party (i.e. the erring spouse). If the erring spouse doesn’t show in court, the matter will be declared as ex-parte and the divorce will be granted after a thorough evaluation of the submitted evidence and documents.
If the erring spouse appears in court, the court then refers both parties for mediation in order to resolve the issue amicably. During such mediation, the spouses may decide to stay together or plan to go for a mutual divorce.
In case both partners fail to resolve their issues, the erring spouse/respondent will file a written statement to the petition filed against him/her. The petitioner may then choose to file a further reply or explanation.
Once the pleadings are complete, the court will frame the issues that must be decided during the time of final hearing.
The court will start the trial proceeding, during which, it will examine and cross-examine the witnesses, evidence, and documents.
After examining the evidence, documents and hearing the arguments of both sides, the court will either decide the case in favour of the aggrieved spouse/petitioner and will grant the decree of divorce or will decide the case in favour of the erring spouse/respondent, thus refusing to grant a decree of divorce.
In India, seeking a contested divorce or divorce without mutual consent is usually a time taking process. In most of the scenarios, the case is prolonged unnecessarily due to disagreements of parties on various matters, their unprofessional and callous attitude, delay tactics played by their lawyers, excessive workload, and distant court dates. Hence, it is important to choose your divorce attorney wisely, as a proficient divorce attorney can assess the situation in a better manner and can proactively reduce the time consumption.
2. Divorce with Mutual Consent or Mutual Divorce:
When husband and wife both agree to end their marital bond amicably and decide to dissolve their marriage, then they may proceed for a divorce with mutual consent or a mutual divorce. Mutual Divorce is granted under Section 13B of HMA. The section provides for certain legal requirements before a couple can initiate the process for mutual divorce.
Legal Requirements for a Divorce with Mutual Consent:
Section 13B of HMA carves out the following conditions that are required to be fulfilled for filing the petition for seeking Divorce with Mutual Consent.
The couple must have been married for at least 1 year.
The couple must be living separately for at least 1 year.
The couple is unable to live together.
The couple has mutually agreed to dissolve their marriage.
Important Aspects on which the Couple should reach a Consensus:
There are three aspects regarding which a husband and wife should ideally reach a consensus before seeking Mutual Divorce. Although it is not necessary for the conditions to be just and equitable as long as the parties agree to them mutually without any objection.
First is an alimony or maintenance issue. There is no minimum or maximum limit of support prescribed under the law. It could be any figure or no figure as per the mutual settlement.
The second consideration is the custody of the child and visitation rights. Child custody in a mutual consent divorce can also be joint or exclusive depending upon the understanding of the spouses, and further the visitation rights of a particular spouse can also be determined with consensus.
The third is the distribution of assets and property. The husband and wife must mutually decide as to who gets what part of the assets and property. This shall include both movable and immovable property.
General Steps Involved in a Mutual Divorce:
An agreement needs to be formally entered into between the spouses to the effect that they wish to dissolve their marriage mutually and amicably, thereby carving out the terms and conditions for settling their issues and differences relating to alimony, maintenance, custody of the child, visitation rights and distribution of assets and property after reaching a consensus.
Thereafter, a petition may be presented to the concerned family court by both the spouses together, on the ground that they are living separately for a period of one year or more, that they have not been able to live together, and that they have mutually agreed that the marriage should be dissolved. This initiates the first motion.
After receiving the petition and recording the statement of both the spouses, the Court generally adjourns the matter for 6 months. However, in a recent judgment, Amardeep Singh v. Harveen Kaur, [(2017) 8 SCC 746], the Hon’ble Apex Court has held that the six months cooling off period given to the parties can be waived off at the decretion of the court and is not mandatory. Therefore, the parties who have genuinely settled their differences including alimony, custody of the child, or any other pending issues between them, then in that case this six-month waiting period can be waived off. Also, in cases where the court is of the opinion that the waiting period will only extend their sufferings or hamper the interest of justice, then six months period can be waived off in such cases too.
After the 6 month cooling period is over, the parties may make a second motion but not later than 18 months from the date of presentation of the first motion.
Upon presentation of the second motion, the court starts hearing the matter again. This second motion confirms the consensus of the two parties to dissolve the marriage.
The court upon being satisfied with the tendered evidence and statements of the spouses to the effect that they have completely agreed for the final dissolution of marriage after amicably and mutually settling their differences in the matters related to alimony, custody of a child, maintenance, property, etc., then it can declare for the dissolution of marriage and pass a decree of divorce.
Thus, as it appears a divorce with mutual consent is a much easier and quicker process than the tedious contested divorce and usually, the husband or wife agrees to the same as it is relatively less time-consuming, less traumatic, and inexpensive. Having said that, it is also a legal proceeding that consumes time. So, overall, including counseling, settlement, documentation, and presuming two motions in case the court doesn't waive off the 6 month cooling period, the whole process of getting the final mutual consent divorce decree may consume about 7 - 8 months.
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