Marriage in Indian society is considered sacred, it affects one’s families, finances, children, societal reputation. Divorce is the final dissolution of marriage. It signifies the formal, legal termination of marital tie and cessation of marital status. Divorce is a complex process as it involves settlement of incidental issues such as child custody, maintenance, alimony, division of property and assets jointly held or acquired during marriage.
In India, based on the religion, personal laws, etc, divorce procedure and the rights available for the spouses are different. For experienced and knowledgeable advice, get in contact with Prime Legal’s divorce lawyers if you’re looking for lawyers in Bangalore.
What Is Divorce?
In the legal sense, divorce refers to the formal dissolution of marriage. It is usually granted via a judicial decree that permanently terminates a valid marriage, and the marital status and obligations of the parties to the divorce. Thus, such parties are free to remarry subsequent to obtaining such a decree.
Divorce differs from a separation as a separation does not formally terminate a marriage or the marital tie between the parties, i.e. their spousal status is not extinguished. It is governed by Section 10 of Hindu Marriage Act, 1955, Section 23 of Special Marriage Act, 1954, and Section 22 of Indian Divorce Act. A judicial separation decree refers to the court order allowing the parties to live separately while the marriage still exists. In some cases, judicial separation precedes divorce, or it may be an independent remedy. However, on the other hand, a divorce decree formally and permanently dissolves a marriage. The marital status of the parties or the marital tie between them is terminated, and they are free to remarry subject to personal laws.
Couples seek divorce due to multiple reasons, for example: breakdown of marriage, incompatibility, etc. Further, there are specific legal grounds (Section 13 HMA, Section 27 SMA) based on which divorce can be sought- i.e. cruelty, desertion, adultery, mental illness, conversion, etc.
Types of Divorce in India
Divorce proceedings can be broadly categorised as- Mutual Consent divorce and Contested Divorce.
1. Mutual Consent Divorce
In a mutual consent divorce, both parties or spouses mutually agree to end marriage as there is no scope for reconciliation. It is governed by Section 13B of the HMA, 1955, Section 28 of SMA, 1954, and Section 10A of Indian Divorce Act, 1869.
The couple must have lived apart for a year before applying for a mutual consent divorce via a joint petition with mutual agreement that they can no longer live together followed by a cooling off period of 6 months (scope for reconciliation). The joint petition also includes mutually agreed settlement terms on alimony, maintenance, who is to have child custody and visitation rights of another party, division of assets, return of stridhan property to wife.
The advantages of mutual consent divorce- it is faster, cheaper, less stressful, amicable, private, voluntary.
2. Contested Divorce
A contested divorce is filed when one spouse wants to end the marriage but the other spouse does not consent. There are no voluntarily agreed upon terms. The petitioner (who seeks to terminate the marriage bond) approaches the Family Court and must establish at least one of the statutory grounds (Section 13 HMA 1955, Section 27 of SMA, 1954) for divorce.
Contested divorces are more complex or messy in nature. They are more expensive, include court intervention over several years, and therefore are lengthy as well.
Grounds for Divorce in India
Common legal types & grounds for divorce in India include:
- Cruelty: physical, mental, sexual, financial abuse depending on facts and circumstances.
- Adultery: voluntary sexual intercourse with a person other than their legal spouse.
- Desertion: wilful abandonment (animus) of spouse without reasonable cause and without the consent for at least two years continuous (factum).
- Mentally unsound: mental disorder or illness of spouse to such extent that petitioner cannot be reasonably expected to live with him/her
- Conversion: Spouse converts to another religion, ceases to be a member of the religion, under whose personal law the marriage was solemnized.
- Irretrievable breakdown of marriage: while not a statutory ground, it is utilised by the Supreme Court under Art. 142 for granting divorce when it is observed that there is no scope for reconciliation and that the marriage has irretrievably broken down, dragging out the marriage would only cause unnecessary suffering to the parties.
Divorce Laws in India
There is no single uniform divorce law in India. The applicable statute depends on religion, nature of marriage. Proceedings take place before the Family Courts. The multiplicity of personal laws governing Grounds for Divorce Under Hindu, Muslim, Christian, and Special Marriage Acts include:
- Hindu Marriage Act, 1955 (HMA, 1955) – which applies to Hindus, Sikhs, Jains, and Buddhists and provides for fault based and mutual consent divorce
- Special Marriage Act, 1954 (SMA, 1954)- for inter-religious or civil marriages, it has procedures similar to HMA, 1955, jurisdiction is based on where the parties reside or where the marriage was registered.
- Indian Divorce Act, 1869– applies to Christians and Christian marriages.
- Muslim Personal Law (Shariat) Application Act, 1937– applies to Muslim marriages.
Step-by-Step Divorce Procedure in India General process:
The detailed divorce process in India is given below:
- Consultation with a Lawyer: specialized in matrimonial matters who analyses the facts, identifies the applicable law and grounds, and prepares documents.
- Filing of Divorce Petition: The petition is filed before the Family Court. The petition must include the identity of the parties, details regarding the marriage, applicable grounds for divorce or a joint statement of consent, and relief sought.
- Court Hearings: After the petition is filed, the duty of the Family Court is to firstly attempt mediation/ reconciliation, if that fails, the court moves forwards with adjudicatory proceedings. It must be noted that only if reconciliation is not possible, and a report of failure is submitted to the court, the proceedings continue.
- Evidence and Arguments: In contested divorces, the proceedings include presentation of evidence through sworn statements and/ or documentary evidence, and digital evidence. Opportunity must be given to the opposite party as well for cross-examination. Both parties present their arguments. Subsequently, the court reserves the matter for judgment.
- Settlement or Trial: In a mutual consent divorce, after the cooling off period, when both parties confirm their divorce, the settlement is recorded and divorce decree is passed. In contested divorces, if reconciliation or mediation fails, after proper adjudicatory proceedings, the court reserves the matter for judgment, passes a decree.
- Final Divorce Decree: The decree for divorce is the final order by the court that conclusively and legally terminates the marital tie between the parties, it further effectuates the agreed or adjudicated terms of divorce. A certified copy of the divorce decree is given to both parties.
Important Issues Decided During Divorce
1. Alimony & Maintenance
Permanent Alimony: in the final divorce decree, a lump sum (one-time payment) or as periodic maintenance (monthly payments) may be ordered by the court to the financially weaker spouse depending on income of both spouses, standard of living during the marriage, means of livelihood, conduct during marriage. In a mutual consent divorce, the alimony amount is decided by mutual agreement.
2. Maintenance
May be interim maintenance filed for under Section 24 of the Hindu Marriage Act (Section 36 of SMA), or Section 125 of the CrPC, 1973 (now s. 144 BNSS) by the financially weaker party, or party with child custody to ensure that such party is not left destitute during divorce proceedings; or monthly/ periodic maintenance via final divorce decree for sustenance of financially weaker spouse unless circumstances change.
3. Child Custody
Child Custody in Divorce Cases refers to the question of who will have the custody of the child on the termination of the marriage via divorce. It is governed by Section 26 HMA, 1955 as well as the Guardians and Wards Act, 1890. Types of Child Custody include: physical custody, legal custody, sole custody or joint custody. The “best interest of the child” principle guides courts in determining child custody.
4. Property & Asset Division
There is no uniform law in India that governs distribution/ division of assets and property acquired during marriage upon divorce. Parties often by their own autonomy negotiate asset division via settlement terms (in mutual consent divorce). Further, courts may intervene (though they have limited statutory powers) when fixing maintenance or alimony in contested divorce.
Rights of Women During Divorce
- Maintenance rights: interim maintenance during ongoing divorce proceedings, financial support to economically weaker spouses during and after divorce.
- Residence rights: right to wife to reside in a matrimonial home even if she does not have title to the property. Governed by Section 17 of the Protection of Women from Domestic Violence Act, 2005 (PWDVA).
- Protection under Domestic Violence Act: The Protection of Women from Domestic Violence Act, 2005 (PWDVA), was enacted with the main objective of providing remedies and protection to women being subject to domestic violence, such as protection orders, monetary relief, etc.
Read our guide to get a better understanding on the legal rights of women during and after divorce in India.
How Long Does Divorce Take in India?
1. Timeline for Mutual Divorce
Takes 6 months to 1 year (including the cooling off period). However, it may take 3 months to 6 months (when cooling off period is waived)
2. Timeline for Contested Divorce
Can take many years according to the nature of dispute. (2-3 years for a straightforward contested divorce; or 5-7 years for a complex case). Delays in divorce are usually due to court backlog, mandatory mediation, complexities/ disagreements over child custody, alimony etc, rigorous proceedings of evidence, hearings, cross examination.
Read our guide to get a better understanding on How Long Does a Mutual Divorce Take in India.
Cost of Divorce in India
- Court Fees: depends on the nature of the petition and what reliefs are claimed (may be a few hundred or thousands)
- Lawyer Fees: dependent on lawyer or firm
- Other legal expenses: Documentation and Miscellaneous Charges such as cost of notarisation, affidavit charges, fees for courier.
Common Mistakes to Avoid During Divorce
- Emotional decisions such as disposing assets, refusing access to children, comments on social media that adversely affects one’s legal position.
- Poor documentation: irregular, incomplete records, key documents, property records, bank statements.
- Delaying legal consultation: taking too long to seek out legal consultation may affect the balance of convenience of the case. Evidence may be diluted.
Conclusion
Divorce as mentioned earlier refers to the formal and legal dissolution of marriage. The process of divorce seems complicated as there is reconstruction of families, finances, assets, child custody, and other incidental matters, etc. Understanding the procedure of divorce is significant as it makes one aware of specific rights, required documents, remedies, timelines, and speeds up the process. It makes the potential outcome more efficient. Therein lies the significance for proper legal guidance in divorce procedures so that one’s interests and rights are protected. If you are looking for expert guidance Contact Prime Legal for Expert lawyers in bangalore for divorce
FAQ
1. What are the 4 stages of divorce?
Filing of divorce, serving notice to other party, hearing stage and final judgment.
2. How long does divorce proceedings take ?
For a mutual divorce it will take 6 months to 1 year. For a contested divorce it depends on the complexity of the case.
3. What will happen to the property and assets after divorce?
All the property and assets will be divided between the spouse.
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