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What are divorce laws in India?

July 17, 2021

Divorce is the bitter truth of an unmanageable relationship. Marriage being the government and divorce acting as elections for the change, the reality lies that if you aren’t able to cater the needs of your counterpart then there bestows divorce laws for you to handle!  In thi article, we will try to cover all the divorce laws in India.

Going by the aesthetic underlying belief of Vedas claiming marriage as the ultimate objective of a young 25 year old bachelor doesn’t stand out the way it did in the orthodox mind-set that people own, rather for this dynamically changing world, if you want to marry then you should make yourself fit for selection, because India provides a set of divorce laws if the spouse doesn’t feel contended in taking the marriage further.

Beginning with Hindu Marriage Act,1955 to the Dissolution of Muslim Marriage Act,1939 and the Parsi Marriage and Divorce Act,1936, together  with Indian Divorce Act,1869, India holds a unique role from putting off the couple from the stressful relationship no matter what religion they preach thus fulfilling its fundamental principles. Divorce is the criminal manner of separation when you aren’t able to reap the seven vows you have got yourself promised. 

Way more different then annulment which is a legal separation i.e. a felony system through which a married couple can also additionally formalize a de facto separation whilst last legally married or with de facto separation i.e. a system wherein the spouses informally forestall cohabiting, Divorce stands out by defining the partners free from any obligation they have been previously put on via the society in the name of Marriage. 

Divorce being a legal dissolution of marriage respects all diverse religions India have. All Hindu, Buddhist, Sikh and Jain will try to file divorce through Hindu Marriage Act, 1955. Muslims via Dissolution of Muslim Marriages Act, 1939. Persian through Parsi Marriage and Divorce Act,1936. Christian in accordance with Indian Divorce Act, 1869. Spouses belonging to one-of-a-kind groups and castes can seek divorce thru Special Marriage Act, 1956.

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For wives

  • Right to live anywhere she desires together with her husband, as an alternative be it her parental or matrimonial domestic, no guidelines below Hindu Marriage Act, 1955 for identifying her area to live after marriage.
  • Right of property both by her father and husband given she is first wife, if the husband commits any bigamy.
  • Right to abort a baby underneath 20 weeks with no duty of taking permission from her husband as according to the Medical Termination of Pregnancy,1971.
  • Right to stree dhan (voluntarily given gifts  to the wife before or after her marriage without any force to do so) as per section 14 of Hindu Succession Act,1956 and section 27 of Hindu Marriage Act, 1955. She also can in addition record a grievance below Section 19A of the Protection of Women in opposition to Domestic Violence Act if her proper is denied.
  • Report Dowry via article 304B and 498A of Indian Penal Court.

For husbands

  • Against the false claim of his wife for Dowry, he can complain under Section 227, CrPC.
  • If his wife creates scene and then falsely claims it as torture, husband can file a damage recovery case under Section 9, CPC against his wife.
  • Right to inherit spouse property after upon death.
  • Right to receive spouse social security, pension or disability benefits.

Grounds for divorce

Guilt or Fault theory in demand for contested divorce

  • Section 13 of the Hindu Marriage Act 1955 recognises reasons for divorce with an addition of another 4 reasons available to the wife alone under the Hindu Marriage Act 1955 (section 13(2)) .
  • Adultery: Consensual sexual intercourse between a married person with another gender spouse of another person.
  • In India, a man that commits adultery can be charged with a crook offence. The wife as a civil remedy can report divorce. If a wife commits adultery, she cannot be charged with a criminal offence, even though the husband can be searching for prosecution of the adulterer male for adultery and report for divorce.
  • Desertion:  wilfully neglecting/leaving/forsaking/abandoning of 1 partner with none practical cause through the other.
  • Deserting spouse must have valid reason for split and the desire to put an end to cohabitation in order to plead for defence.
  • Deserted spouse believes in lack of consent and improper cause for leaving the matrimonial home when he/she pleads.
  • Leprosy – Section 1(iv)  needs leprosy to be virulent or incurable whilst being a floor for divorce.
  • Venereal Disease – either spouse can seek a petition for divorce if the other spouse is suffering from any virulent venereal Disease (AIDS, HPV, Pubic lice) in its communicable form.
  • Insanity – Section 13(iii) provides divorce if the respondent has been experiencing consistent mental turmoil which is intolerant by the spouse. 
  • Conversion – Section 3(1)(ii) provides divorce if the spouse ceases to be a Hindu/ converted to a non Hindu faith without the other spouse’s consent.
  • Presumption of death –  Indian Evidence Act, 1872 presumes people dead if hadn’t been heard for a minimum span of 7 years, hence the spouse can take a divorce after the stipulated time.
  • Bigamy – wife can seek divorce if the husband have more that one wife.
  • Rape, Sodomy and bestiality – wife can file a petition for divorce because of rape (section 375, IPC) i.e. coitus with a lady without her permission. Other 2 are unnatural offences where Sodomy means son corral copulation with same sex and bestiality means having sex against the order of nature with any man, woman or animal as given in section 377, IPC. 
  • Section 2 of the Dissolution of Muslim Marriages Act 1939 contains grounds on which the wife alone can sue.
  • Talaq-e-bidat – Been recently declared void ab initio via the Shayara Bano v/s Union of India regarding the teen talaq.
  • Talaq-e-ahsan – There is a 90 day iddat(abstinence) time whereby if the couple doesn’t cohabitate, the divorce is irrevocable.
  • Talaq-e-hasan – 3 one month motions are to be produced whereby there shouldn’t be any conjugal relationship between the spouse.

From husband 

  • Whereabouts of the husband have now no longer been regarded for a length of 4 years.
  • Husband has failed to offer her maintenance for a minimum span of two years or has forced her to stay in an inhumane marriage.
  • Husband has been sentenced to imprisonment for a span of seven years or upwards. 
  • Husband is impotent or isn’t able to fulfil the marital responsibilities for minimum of 3 years
  • Assault her or if doesn’t regard her in accordance with the Quran.

From Wife 

  • If you’re a believer of Christ, then can file divorce under Section 10 of the Indian Divorce Act 1869. The granting of divorce decree should be from a civil court and not from ecclesiastical tribunal (set up by religious authorities to deal with disputes among clerics).
  • Husband’s can claim divorce if wife have committed adultery
  • Wife can file a petition for divorce because of adultery, bestiality, bigamy, change of religion from Christianity by husband or cruelty. 
  • The Parsi Marriage and Divorce Act 1936 contains 10 fault grounds of divorce applicable to Persians couples seeking divorce.
  • Under the Special Marriage Act which is applicable to all besides not having the status of citizen in India, Section 27(1) contains 10 fault grounds of divorce on which either spouse can seek divorce. Section 27(1A) contains two fault grounds on which the wife alone can seek separation of marriage.
  • Section 13B of the Hindu Marriage Act 1955  in conjunction with section 28 of Special Marriage Act, 1954 affords the spouse to present their motion for separation after living without the tag of husband and wife for a minimum span of 1 year (Section 10A of Divorce Act, 1869, requires the couple to be separated for at least two years before applying for divorce.) followed by another presentation of motion with a gap from 6 to 18 months discretionary from the first followed by the last hearing which ensures free will by recording the statements before granting a decree of divorce. (Living separately means not living as husband and wife, location doesn’t matter. )
  • Authorization of power of Attorney – When one of the parties isn’t able to attend the proceedings of divorce because of being out of country or some unavoidable piece of work, then he/she files a 100 rupees stamp paper thus giving their power of acting in accordance to other after getting it registered via registrar by providing residential proofs, so there isn’t any delay in divorce by mutual Consent instead of one of the parties being out of town.
  • Customary Divorce – Divorce without involving court is illegal but still prevalent in some parts of India.
  • Unilaterally – At the pleasure of the husband like abandoning the wife without any valid reason or because of caste.
  • Divorce by Deed –  with intervention of the traditional Panchayats of caste tribunals, Divorce is claimed.
  • Breakdown Ground –  It takes marriage as a pious relationship based on love and respect for each other and believes in not stretching a dead relationship if it is irreparable. It provides spouses the freedom of expressing their unhappiness in the relationship and hence can take a leave from it if able to prove to the court that their married life isn’t worth living.

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Documents needed

  • Residential proof of both spouses.
  • Details of professions and current earnings of spouse. 
  • Certificates stating that marriage happened in accordance with law.
  • Photographs of marriage along with information regarding family background.
  • Evidence to prove that the husband and wife have been living separately for more than a year if Divorce is mutually consented.
  • Evidence of failed attempts at reconciliation if Divorce is via deserting a spouse or not giving respect. 
  • Income tax statements for deciding the alimony along with Details of property and assets owned by parties.

Child Custody

  • The Guardians and Wards Act, 1890 provides rules for child custody after marriage.
  • Joint Physical custody – Both parents will have legal custody, but one will have the physical custody with whom the child resides and will be the child’s primary caretaker.
  • Sole Custody – One parent has been proven to be an abusive and unfit parent and so the other parent is granted custody.
  • Third Party Custody – When neither parent has custody of the child, but is guarded by a third party in the family
  • Under the Muslim Women (Protection of Rights on Divorce) Act, 1986 the custody of boys below 2 years should be given to the mother and after that to the father but the custody of the daughter remains with the mother throughout. 
  • Under the Christian law, child custody remains with the person with whom the child resides but both parents continue to remain the natural guardians. 

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FAQs

Do always male spouses pay alimony after Divorce?

No, Maintenance is a statutory right and available by way of independent relief, both under civil and criminal laws, and also as an ancillary relief to the person who needs it in accordance with Section 24, 25 Hindu Marriage Act, 1955 and section 18 of Hindu Adoption and Maintenance Act, 1956. The right of maintenance extends to any person economically dependent on the marriage who will not be able to live a healthy life after Divorce without compensation. 

Minimum time after which you can remarry?

There is a minimum 3 months waiting from the date the court has given a decree of divorce before re-applying yourself for another marriage!! And marrying before divorce can cost you 7 years in jail.

Do women have to leave the matrimonial home after Divorce?

No, it’s her wish as there are no legal foundations hindering her stay over at her ex-husband’s house.

Is individual debts the responsibility of the spouse?

Yes if after Divorce the debt is taken for taking care of the child, otherwise No, the debts are paid by the estates owned by the person taking the outstanding debts.

Can a female file a case of Dowry after 7 years of Marriage and seek divorce?

Yes, Dowry case can be filed anytime after marriage but needs to provide the stances for it as per section 498a, IPC. The misconception lies with Dowry death as per section 304B,IPC which provided a 7 year constraint after marriage if the death of the wife doesn’t have any burns or bodily injury and is filed as a case of Dowry. Dowry case should be filed within 3 year from the date of offence i.e. when Dowry was asked as per section 468, CrPC.

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Legal enthusiast encouraging people to be aware for making a decision before hand about the laws India grant and take forward the tag of citizen.

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