In the past, there were fewer cases of divorce, but with times, the mindset of people has also started to change as there have been more incidents of divorce, with couples deciding to separate if are not able to continue the relationship. 

The Laws Governing Divorce In India

• The Hindu Marriage Act (1955)

It provides for the matter of marriage and divorce for Hindus. The Act, based on the facts of the case, must be read along with other legislations as well, for instance, the Hindu Adoption and Maintenance Act etc.

• The Special Marriage Act (1954)

It applies where individuals belonging to two different religions marry each other. As could be understood form the name of the Act, it deals with special situations where couple belonging to two different religions or sects have decided to tie the knot. The Act reflects the liberal and progressive mindset of the legislature and by extension the society. 

• The Divorce Act (1869)

This Act governed the matters of divorce of Christians in British India.

• The Muslim Law

Muslim personal law is basically a set of customs and Sharia, collectively known as Laws of Sharia. For most part the Muslim Law is based on the rules enshrined in Holy Quran, with rules slightly different for different sects, i.e. Shias and Sunnis.

The Hindu Marriage Act, 1955 provides for the provisions related to divorce in most cases. The Act provides protection to rights of both parties involved in a marriage. 

The Hindu Marriage Act, 1955-

This Act applies to-

1. a person who is hindu or is a Virashaiva, a Lingayat or is a follower of the Brahmo Samaj, Prarthana Samaj or Arya Samaj
2. a Buddhist, Jaina or Sikh by religion, and
3. to any other person in India who is not a Muslim, Christian, Parsi or Jew by religion

Divorce laws- A brief history 

Divorce was basically introduced around the year 1869, majorly for christians who wished to seek divorce legally. There were no legal provisions present in India formalising divorce In India at the time.  

It was after a period of 8 years post independence, that the Parliament of India enacted the 

the Hindu Marriage Act in 1955.

Types of Divorce Petitions

The HMA provides for two kinds of divorces, availed by a couple. They are-

• Divorce with Mutual Consent-

The provision for Divorce with Mutual Consent is provided under Section 13-B of the Act. the concept was introduced in the year 1976, which allows a couple to apply for a divorce amicably by agreeing to a divorce settlement, where the role of court would only be limited to administrative functions. The couple would decide upon the terms of the divorce. The parties could come together and file a joint petition for divorce in the Court. A divorce by mutual consent is relatively cheaper as well as would take a shorter amount of time as compared to the contested divorce. 

• Divorce Without Mutual Consent:

Divorce without mutual consent, also referred to as Fault Divorce or Contested Divorce, its provisions have been provided under Sections 13 (1) & (2) where various grounds have been provided based on which either of the spouse could file for a divorce in the court of law-

• Section 13(1) provides for grounds based on which either of the parties to marriage could apply for divorce. These include- infidelity, cruelty, desertion for a period of two years or more, insanity, venereal disease of a communicable form, renunciation of society or  conversion to any other religion. Leprosy existed as a ground for divorce until recently, when it has been removed as a ground by the 2019 amendment. 
• Which Section 13(2) provides for grounds on which a wife can apply for divorce, these include- rape, sodomy or bestiality committed by husband, has not followed the order of paying maintenance, the husband is a habitual criminal and is imprisoned. 
• Irretrievable Breakdown of Marriage:

An irretrievable breakdown of marriage could be defined as a failed marriage, where there is no possibility of reconciliation amongst the couples. At present no legislative provision is there related to this theory. However, in 2010, Marriage Laws Amendment Bill was introduced which was passed in the Rajya Sabha, it provided for the inclusion of a Section 13C in the HMA. The Supreme Court, though, in exceptional cases has granted a divorce based on the ground of IRB theory. 

Grounds of Divorce

The ground based on which either of the partners could apply for divorce, have been discussed here under-

• Adultery: when either of the couple is having an extramarital affair or is involved in a  sexual relationship with another person outside of marriage.
• Cruelty: the act committed by either of the spouses which includes unjustifiable behaviour of harming the other party physically, mentally, or emotionally.
• Desertion: the act of abandonment where any one of the partners is abandoned by the other one without providing any reasonable cause or without the consent of the spouse abandoned.
• Conversion to Another Religion: in case either of the spouses has converted to another religion, the other will have the right to apply for a divorce. 
• Mental Disorder: In case either of the partners has been suffering from such mental illness, where it is impossible for the couple to stay together both in physical and emotional terms.
• Communicable Disease: If either of the partners has been suffering from STDs or any other such disease which could be fatal for the other partner.
• Renunciation of the Society: Either of the partners to the marriage will have the right to apply for divorce in case the other has renunciate the world and has left behind his or her family and other relations as well as all material things to pursue religion or faith.
• Presumption of Death: When either of the partners has been missing for a period of no less than 7 years and could not be proved to be dead or alive, in such a situation he or she shall be declared as dead and the other partner could seek divorce under the Act of 1954.
• Unsound Mind or Continuous Insanity: If either of the parties is suffering from such mental disorder which has an indefinite period cure or is incurable, the other partner in such situation has the right to apply for divorce. 

Documents Necessary When Filing for Divorce:-

In a petition for divorce, the parties may be required to submit the following documentary proofs:

• Marriage Certificate- A legal marriage certificate of the marriage. Even though the marriage certificate is an important, it is not necessary, in case there is no marriage certificate, the couple would have to present other proof for marriage, such as wedding photographs, etc. 
• Address Proof- fro each parties in case they are living separately or the proof of the matrimonial house in case they are living together.
• Remuneration proof- may also be required to be submitted by the parties so as to decide the matter of  maintenance. One may supplement it with IT statements for the past couple of years. 
• Passport-sized photographs- of each party to the divorce.
• Parties to divorce would also have to submit proof for attempts of reconciliation made between the parties, these poofs could be correspondence such as letters or emails passed between the parties, or transcripts proving telephonic calls. 

Procedures of Divorce 

Discussed here under in simple terms is the procedure for divorce  amongst the parties-

• Step 1-  A petition must be submitted by both parties i.e. the husband and the wife in the respective family court. The said petition must state all necessary details related to the separation of the parties, their terms, evidences regarding the same. 
• Step 2-  A date would be provided to both the parties where they are required to be present with their divorce lawyers in the respective Family Court in order to confirm with the facts mentioned in the petition including the family backgrounds, property owned by the parties, reason behind divorce, custody of children in the marriage, id, etc. 
• Step 3- At this stage, the statements by the parties, the evidences presented by the parties before the Court shall be examined, after which if the Court believes it appropriate it may  refer the parties for reconciliation, as marriage in India, especially in Hindu Marriage is considered to be sacred as well as permanent bond. This period provided by the Court may extend from 6 to 18 months. 
• Step 4- During the above mentioned waiting period, in case the couple wish to reconcile and try to stay together, they may file for cancellation of divorce through their divorce lawyer. In case either of the parties to marriage do not wish to reconcile, the court case may continue as per the proceedings and final statement by each party would be recorded  in the family court.

Sharks of Law offers you lawyers who could assist with the process of mediation and litigation in order to achieve favourable outcomes, as well as ensure that the clients achieve favourable outcomes.  

• Step 5- After the statement by the parties is recorded, the final agreement will be signed by the spouses so that any future disagreement could be sorted in advance for matters such as maintenance, child custody, alimony etc.
• Step 6- After the proceedings are completed and the Court is satisfied that the parties are unable to reconcile during the final motion as well, the parties shall be granted a divorce decree based on the facts of the Court, thus ending the marriage.

Other Matters Related to Divorce-

• Property Matters Related to the Marriage- 

When a couple decides to file a Divorce by Mutual Consent, they have the right to divide the matrimonial property as they deem necessary. However, in case of an absence of consent, the Court may decide over the matter of property. During divorce the couple have the right to decide over matrimonial property only and not on the individual self acquired property. 

The provisions for maintenance for wife is provided under Section 125 of the Code of Criminal Procedure and even under the Hindu Adoption and Maintenance Act, 1956. During the trial of these proceedings the property of the couple would be considered by the Court. 

• Matters Related to Child Custody:-

The provisions related to child custody and guardianship is provided under the Guardians and Wardens Act, 1890. The custody of the child could be

• Sole or exclusive- where only one of the parent of the child will have the custody of the child, while the other would have visiting rights, 
• Shared or joint custody- where both parents will share the custody of the child.
• third party custody- in these cases neither of the parents gain custody of the child
• Generally, the custody of a child below the age 5 years will be given the mother.
• In case of Muslim Women (Protection of Rights on Divorce) Act, 1986, the custody of a boy below the age of 2 years would be given to mother, above that to the father, the custody will always be given to mother in case of a girl child. 

Maintenance and Alimony During and After Divorce-

• Maintenance and Alimony: Maintenance and alimony, could be understood as the financial support given to spouse by the Court irrespective of the divorce status of the couple. 
• Maintenance During the Proceedings of Divorce: Interim maintenance is the maintenance provided during the process of divorce by the partner so as to fulfil his or her needs. This provision for interim divorce helps ensure that the couple is equally capable of contesting the case.
• Maintenance After  Divorce: a fixed amount of money which must be paid by one spouse to the other. It shall be a  fixed amount of money which shall be paid by one spouse to the other as per the order of the Court. It could be paid monthly, quarterly or yearly. In case the defendant fails to pay the maintenance amount, the receiving party can move the Court for legal support.

Lawyers at Sharks of Law offer you legal counsel with property division, child custody arrangements well as negotiations during maintenance and alimony.  

Factors to be Considered When Deciding Maintenance and Alimony: 

A number of factors are considered when the Court decides upon the matters of maintenance and alimony, including future expenses, lifestyle expenses of the couple, education cost for children if any, inflation, as well as any medical expense which may occur, and many more. 

The amount to be paid as maintenance shall be decided based on the financial ability of the  parties and enough proof for their financial standings is required to be submitted. After the amount of maintenance has been provided, the defendant would be bound by law to provide maintenance and alimony as per the judgement of the Court. 

How much would it cost in case of a divorce ?

The cost  of filing for a divorce may seem to be very small, varying from state to state, which is generally around Rs 100 to 200, however the major payment during a divorce procedure would be paid to the divorce lawyer. 

The fees of the lawyer may vary depending upon the place the case has been filed, the experience and knowledge of the lawyer, etc. Hence, it is advised to have a proper talk with the lawyer regarding proper fee management as applied by him or her, before appointing them.

Conclusion

Divorce is a crucial step for the couples. It must be understood that the divorce is a huge decision which could be emotionally, psychologically, as well as financially draining. Having a proper understanding of the entire process will ultimately help you make wise decisions during the proceedings.

Therefore, it is advised to appoint an experienced advocate from Sharks of Law who can assist you with the same. It is necessary that you appoint a divorce lawyer from the Sharks of Law to file your case properly, he or she should be well informed and should be able to predict the difficulties as well as nuances of the divorce case and deal with any sudden change in the facts or circumstances.

Sharks of Law offers you expert guidance in divorce cases, where our lawyers provide you with personalised legal strategies based on the facts of your cases. Our lawyers could help you deal with the complex legal structure involved in divorce proceedings including other variables such as property matters, maintenance, child custody. In case, you wish to seek free legal counsel, you may contact us.  

FAQs

1. How long would it take to divorce in India ?

Mutual divorce could be completed within a period of about 6 to 18 months. However, the time period taken for entire procedure of divorce to be completed would be based on the facts of the case.

2. If wife may get divorce one sided ?

Yes, it is possible to apply for divorce by wife only. For further information as to on what ground could she file for divorce, it is advised that you contact an experienced divorce lawyer. 

3. What is grey divorce ?

A term used for divorce, when the couple seeking divorce is 50+ in age. 

4.  Can  husband deny divorce?

 Yes, if the husband denies to divorce, he would have to provide evidence as to  why such divorce is not necessary. 

5. How can one get a faster divorce in India ?

One may apply for a divorce by mutual consent, where the parties agree to terms of divorce on their own, the time for divorce would be cut short.