While marriage is one of the most celebrated and sacred institutions in Indian society, marriage is not beyond irreconcilable differences between spouses, which may land them before a divorce court. Divorce in India has a very complex legal framework, motivated by personal laws emanating from religion, codified statutes, and judicial precedents. A law firm specializing in family law can provide crucial guidance through this complex process. This blog gives an all-round idea about the Indian divorce process
Types of Divorce in India:
1. Mutual Consent Divorce:
The Mutual Consent Divorce is when the couples decide to get separated amicably.
2. Contested Divorce:
In this category of Divorce, one spouse files for divorce without the consent of the other spouse, on some ground as prescribed under applicable laws.
Divorce Grounds
Reasons for divorce vary with religion-based personal laws:
1. Hindu Marriage Act, 1955 against Hindus, Buddhists, Jains, and Sikhs:
- Adultery
- Cruelty
- Desertion for two years or more
- Conversion to another religion
- Unsound mind
- Diseases like leprosy which are known to result in permanent incapacity
- Renunciation of the world
- Presumed dead
2. Special Marriage Act, 1954 for inter-religion marriages:
Almost same as Hindu Marriage Act.
3. Indian Divorce Act, 1869 against Christians:
- Adultery
- Cruelty
- Desertion
- Impotency
4. Muslim Personal Law:
- Talaq cruelly caused by a husband
- Talaq-e-Tafweez handed over to the wife
- Khula voluntarily given by her
- Mubarat mutual
5. Parsi Marriage and Divorce Act, 1936:
- Adultery
- Cruelty
- Unsound mind
- Desertion
India Divorce Procedure include:
1. Mutual Consent Divorce
Generally, a very non-contentious process.
Step 1: Filling Petition
Both the spouses file a joint petition to the family court stating mutual consent and reasons for separation.
Step 2: Cooling-Off Period
The court grants a six months cooling period (in some cases it can be waived). It is just to leave room for reconciliation if possible
Step 3: Second Motion and Final Hearing
After the period of cooling-off, the couple affirms the decision, and the court decides on divorce decree.
2. Consent Divorce
Not that confusing because it has arguments and evidence-based hearing.
Step 1: Filing the Petition
The offended spouse files a divorce petition in the family court on valid grounds.
Step 2: Court Notices
The other spouse, that is the respondent is served with notice by court to attend hearing and present before the petitions.
Step 3: Response by the Respondent
The respondent can either admit or deny allegation.
Step 4: Evidence and Hearings
The parties show and provide their evidence in the presence of each other.
Step 5: Counseling and Mediation
The court can refer them to counseling or mediation to come to a common decision.
Step 6: Lastly, Closing Arguments and Decree of Divorce
The court delivers its judgment by either granting or declining divorce after listening to the both parties.
Role of Family Courts:
Family courts are the exclusive fora for dealing with matrimonial disputes, such as divorce. These courts try to deal with the matters expeditiously and minimize as much damage as possible to relationships within the family.
Legal Rights After Divorce:
1. Alimony/Maintenance:
- Either party can claim alimony under Section 25 of the Hindu Marriage Act or respective provisions under other personal law.
- Quantum differs according to income, needs, and standard of living.
2. Child Custody:
- The welfare of the child is considered by courts while awarding custody, sole, joint or even visitation rights.
- Provisions of Guardians and Wards Act, 1890 and personal laws come into force.
3. Division of Assets:
- No consolidated law for property division in India. Courts use individual contribution and ownership in deciding the division of marital assets.
Important Points to Consider:
1. Cooling-Off Period in Mutual Consent Divorce:
- Cooling off period is intended as the time for reconciliation but can waived under extraordinary conditions.
2. Grounds for Waiving Cooling-Off Period:
- Long separation
- No likelihood of reconciliation
- Urgent circumstances, such as intending to remarry
3. Jurisdiction:
- A petition for divorce must be filed before a court where:
- The marriage was solemnized,
- Either party resides, or
- The couple last lived together
4. Timeline:
- Mutual consent divorce usually takes about 6 to 18 months.
- Contested divorces can last for years, depending on the number of complexities and appeals.
5. Legal Representation:
- Engaging competent family lawyer ensures proper representation and less complicated proceedings.
Challenges of Divorce Litigation
1. Emotional and Social Stigma:
Divorce is still stigmatized in certain parts of Indian society, which causes much emotional stress on the parties involved.
2. Long Process:
Divorce may take years to be finalized as the parties contest for it, which is financially and emotionally straining.
3. Custody fights:
It is stressful to both parents and children involved in custody battles.
4. Financial Battles:
Dependents may remain economically strenuous mainly in contested cases with long-drawn litigation.
Recent developments in Indian Divorce Laws:
1. Double Talaq Ban:
The Supreme Court declared instant triple talaq unconstitutional in 2017, safeguarding Muslim women with better legal protection.
2. Irretrievable Breakdown of Marriage:
It is one of the grounds that the Supreme Court has granted divorce, though not yet codified in law.
3. Alimony Guidelines:
Recent judgments have streamlined criteria for determining maintenance, promoting fairness and consistency.
4. Waiver of Cooling-Off Period:
Courts increasingly grant waivers in mutual consent divorce cases so that amicable separation may not be delayed.
Conclusion
Divorce in India is a very complex procedure, and it involves religion, personal laws, as well as judicial interpretations. Though the law strives to be balanced in all respects, the procedure for divorce is complicated by procedures and rights. It may be an uncontested mutual consent divorce or a contested separation. Our divorce lawyers in Bangalore can provide professional guidance and emotional support, making the journey somewhat less daunting either way. People equipped with knowledge and preparations for fair settlement would pave the way for new beginnings.
