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Marriage being a sacrament in Indian culture has a great place and respect but with changing times there comes new ways to look at it and with changing times now if a marriage is not working properly then people look for divorce as an option for benefit of both the persons in a relation.
Divorce can be one of the most difficult steps to take keeping in view number of things and circumstances. If taken a view of divorce laws in India there are a number of different divorce laws in India for different religions and also special marriage act in case of marriage performed under it.
In India there are 6 different laws
All these rules and laws provide for various rules and procedure that are to be followed by anyone who wants to obtain a divorce decree.
A marriage is not only a sacrament but is also a contractual relationship. There are number of rights which arise out of a marriage such as cohabitation and conjugal rights for which decree can also be passed by court of law but can’t be enforced forcefully and non-fulfillment can be a reason for divorce.
Right as to matrimonial home this gives her right to wife to stay in husband’s house and to be maintained by him.
Right of financial security from the spouse which is employed and receives income to the one who is not financially secured or is unemployed. Right to fidelity i.e. courtesy and decency including right not to be harassed mentally and physical cruelty.
Legitimacy of issue as to a reciprocating responsibility of both the parties which can also become ground for divorce.
If we see ways in which divorce can be filed, these are various theories of divorce.
When both husband and wife mutually decide to take divorce and they file for mutual divorce in court of law. In this theory both the partners mutually decide all the matters of alimony, maintenance, custody and other matters. Two conditions that are required for this type of theory are (i) mutual consent and (ii) living separately for one year.
This situation arises when marriage reaches at a position where it is not possible for it to be normal again. In situation there are frequent quarrel between both and they are living separately. While granting this kind of divorce decree court examines number of circumstances and when it is satisfied as to it being irretrievable as there are no such exact rules prescribed for it.
In this particular type of divorce can be taken by one spouse by applying for it in court of law as there other spouse has done any matrimonial offence. Section 13 of Hindu Marriage provides supports and is base of this particular type of theory.
Marriage and Divorce laws also provides certain kinds of relationships in which if marriage done are termed as void marriages. Following are the types of relationships which will render a marriage void.
When a marriage is performed or solemnized without fulfill of conditions provided under Section 5 of the Hindu Marriage Act, 1955.
When a person is in spinda relationships with other then they can’t be married. A person is said to be in Spinda relationship when they are lineal assendents or decendents of one another. Upto three degree of lineage is covered under spinda relationships.
When persons falls under prohibited degree of relationship then also they can’t get married. such prohibitions are based on Consanguinity and Affinity.
Definition of a Hindu includes Sikh, Jain, and Buddhist and divorce law are applicable to all these also. Section 13 of Hindu Marriage Act, 1955 provides for nine grounds on which decree of divorce can be obtained. Some of these grounds can be invoked both by husband and wife and some can be invoked only by one.
Muslims in India can take divorce by way of both Judicial and Extra-Judicial process. By way of judicial process can be taken in two ways, which are: (i) Lien and (ii) Fask
Lien is when husband has falsely alleged wife of adultery and wife is charged. In this case both spouses needs to be major and of sound mind. Once decree is given by court of law it is irrevocable.
Doctrine of Fask is used as a method of obtaining divorce before enactment of law for divorce by Muslims and it is the only option then.
Section 10A of Divorce act provides for method in which Christian can take divorce and there are two ways, which are:-
Parsi Marriage and Divorce Act, 1939 provides for the grounds and procedure for obtaining a divorce decree. Following are the provision relating to divorce under the act:-
This act also provides for divorce by mutual consent under Section 32B and consent must not be obtained by fraud or is forced.
Special Marriage Act, 1954 provides for divorce in case of marriages registered and done under this particular act. It applies to marriages which are inter-caste or are inter-religion and also to marriages with foreign nationals. If we take an overview of the grounds which this act provides as ground of the divorce are same as that of provided under Section 13 of the Hindu Marriage Act, 1955.