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DIVORCE- Steps to be undertaken to Dissolve the Marriage by Mutual Consent, What to do if the spouse doesn’t give a divorce?

DIVORCE IN INDIA

INTRODUCTION:

India is a secular country and a wide number of religions are freely practised. The major religions practised include Hinduism, Islam, and Christianity. People solemnise marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce and other connected issues, are essentially governed by the personal laws of the parties depending on their religion, which are codified by statute in most cases:

  • Hindu: Hindu Marriage Act 1955.
  • Muslim: Muslim marriage is a contract under Muslim law.
  • Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869.
  • Parsi: Parsi Marriage and Divorce Act 1936.

In addition, the Special Marriage Act 1954 applies to all persons of all religions. This is civil legislation and parties from all religions, caste or community can elect to marry under it. A divorce would then be governed by the Special Marriage Act 1954.

All these laws apply throughout India.

DIVORCE LAWS IN INDIA

Divorce is a legal procedure that ends a marriage between two adults. Hindus, including Sikhs, Jains, and Buddhists, are regulated by the Hindu Marriage Act of 1955, while Christians are governed by the Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872.

Divorce laws apply to Muslims, as do the Dissolution of Marriage Act of 1939 and the Muslim Women (Protection of Rights on Divorce) Act of 1986. Similarly, the Parsi Marriage and Divorce Act of 1936 governs Parsis. Other partnerships are regulated by the Special Marriage Act of 1954, in addition to the above rules.

Section 13B[1], added to the Hindu Marriage Act in 1976 to allow for mutual consent divorce, allows for a total of 18 months until a divorce decree can be issued.

The Court may, upon application made to it in accordance with such rules as the High Court may make in that behalf, allow a petition to be presented [before one year has elapsed]since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner o Section 14[2] provides that No petition for divorce shall be presented within one year of marriage provided that the Court may, upon application made to it in accordance with such rules as the High Court may make in that behalf, allow a petition to but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the[expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

Types of Divorce Petitions

A couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other.

Divorce with Mutual Consent:

The courts will consider a divorce with mutual consent if both the husband and wife agree to divorce. However, in order for the petition to be approved, the couple must have been apart for at least a year or two years (depending on the applicable act) and be able to demonstrate that they are unable to live together. Even if neither husband nor wife wants it, they always consent to a no-fault divorce because it is less costly and less painful than a contested divorce. Custody, care, and property rights for children should all be mutually agreed upon.

What does the Section say?

The duration of a divorce by mutual consent varies from six to 18 months, depending on the decision of the court. Usually, the courts prefer to end mutual consent divorces sooner, rather than later.
Before divorce proceedings can begin, the couple must live separately for at least one year under Section 13 B of the Hindu Marriage Act, 1955, and Section 28[3] of the Special Marriage Act, 1954. The couple must, however, be apart for at least two years under Section 10A of the Divorce Act of 1869. It’s important to remember that living separately does not always imply living in different places; the couple just needs to show that they haven’t been living together as husband and wife during this period.

Divorce without Mutual Consent:

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. The reasons are as follows, though some are not applicable to all religions.

1. Cruelty

Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.

2. Adultery

In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.

3. Desertion

One spouse deserting the other without reasonable cause (cruelty, for example) is a reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.

4. Conversion

Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before divorce can be filed.

5. Mental Disorder

If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.

6. Communicable Disease

If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Law in India says that the other party can obtain a divorce.

7. Renunciation of the World

If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce.

8. Presumption of Death

If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.

Steps to be undertaken to Dissolve the Marriage by Mutual Consent:

Step 1: Filing of the Petition in the Family Court

A joint petition for dissolution of marriage for a decree of divorce is presented to the Family Court by both the spouses on the ground stating that they have not been able to reconcile the differences and live together. Thus, have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more. This petition has to be signed by both parties.

Step 2: Appearance before the Family Court Judge for First Motion for Divorce

Both the parties will enter their appearance in the Court along with their legal counsels. Family Court Judge will go through the contents of the petition along with all the documents presented in the Court. The court may attempt to reconcile the differences between the spouses, however, if this is not possible, the matter proceeds further.

Step 3: Statement on Oath

After going through the contents of the application, Court may order the party’s statements to be recorded on oath.

Step 4: First Motion order is passed, 6 Months Time period is given for the Second Motion

An order on the first motion is passed by the court. After this, a six months period is given to both the parties to a divorce, before they can file the second motion. The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.

Step 5: Second Motion hearing and Final Decree

Once the parties have decided to go further with the proceedings and appear for the second motion, they proceed with the final hearings. This includes parties appearing and recording of statements before the Family Court.

If the court is satisfied after hearing the parties that the contents in the petition are true and that there cannot be any possibility of reconciliation and cohabitation and the issues pertaining to alimony, custody of children, properties etc are settled, Court can pass a decree of divorce declaring the marriage to be dissolved.

Divorce becomes final once the decree of divorce has been passed by the court.

What if the spouse does not give divorce?

Divorces, even those desired by both spouses, often get contentious. And if one spouse won’t agree to end the marriage or is trying to avoid the divorce, the process may stretch out longer than expected.

Some resisting spouses can make the divorce process very difficult by refusing to sign the necessary divorce papers or by completely failing to respond to a request for a divorce. Others do so by hiding or trying to avoid “service” (meaning in-person delivery) of the divorce paperwork.

How a judge will treat these situations depends on where you live: some states will allow the divorce to proceed “uncontested,” while others allow the petitioning spouse (the spouse asking for the divorce) to obtain a “default divorce.”

Uncontested Divorce

The easiest type of divorce is an “uncontested” divorce, which means both spouses have filed the necessary paperwork (a divorce petition and a response) and they agree to all divorce-related issues, such as alimony (spousal support), child custody and support, and the division of property and debts.

Typically, if you and your spouse have reached a divorce settlement agreement on all of your issues, you can bring your agreement and any necessary divorce paperwork to court, where a judge will review it, issue orders based on that agreement, and grant you a divorce.

If the agreement involves child support and custody terms, judges will check to make sure your parenting agreement and the child support amount is in the best interests of the child and meets state guidelines.

If you properly served the divorce petition and your spouse filed an uncontested response, but won’t sign off on the final divorce papers, courts in some states may allow the case to proceed as though it’s uncontested. You may wait to be assigned a court appearance date. If your spouse fails to show up in court on that date, the judge may treat the case as though it’s uncontested and enter orders based on your divorce petition and the response.

Request to Enter a Default

If you have served your spouse properly, and your spouse failed to file a written response on time, some states let you file a request to enter a default divorce. State and local rules may vary, but generally, if your spouse failed to respond to your divorce petition within 30 days, you may file a request to enter a default along with a proposed judgment. It may also be allowed when a spouse can’t be located for service.

The court will set a hearing date and ask that you appear. At the hearing the judge may issue a ruling based entirely on what is stated in your divorce petition (or based on what you proved to the court) and then issue your divorce orders and judgment. By failing to respond or appear, your spouse gives up the right to have any say in the divorce proceeding or court judgment.

If you have filed for divorce and are dealing with an uncooperative spouse, you should speak with an experienced divorce attorney to discuss the possibility of pursuing a default case.

[1] HINDU MARRIAGE ACT,1955- 13B Divorce by mutual consent

[2] HINDU MARRIAGE ACT,1955- No petition for divorce to be presented within one year of marriage

[3] SPECIAL MARRIAGE ACT, 1954- Divorce by mutual consent

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