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Divorce laws in India and the divorce procedure in India are based on separate religion based laws, so here's a handy primer.
Divorce laws in India and the divorce procedure in India are based on separate religion based laws, so here’s a handy primer.
Divorce is the process of separating from a spouse legally. It can be a traumatic experience or a liberating experience, depending on the couple and their relationship.
India is a country where marriage is considered sacred and a divorce is considered a stigma, especially on the part of a woman. There is actually what most Indians consider the ‘worthy divorcee’, who needs to be a survivor of physical abuse for them to feel any sympathy. Mental, emotional abuse is far more common, but since there are no obvious injuries and women are usually silenced from speaking out about it to be deemed ‘good women’, it is usually not considered ‘enough’.
Fortunately, this is not stopping women from prioritising themselves over others.
So what are the divorce laws in India that come under the various personal laws of each religion?
Under these Acts, there are different divorce procedures in India, through which one can file for a divorce, with or without the knowledge of the other spouse.
What are the grounds for dissolving a marriage under the various divorce laws in India?
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This in-depth article will answer all your questions on divorce under various laws. Some of these include:
According to Section 10 of the Indian Divorce Act, 1869, a spouse can file for a divorce at the district court on the following grounds:
The Hindu Marriage Act, 1995
The Hindu Marriage Act, 1955 was drafted to provide a uniform law in the case of marriage to Hindus, Sikhs, Jains, and Buddhists. It is applicable to all of India’s permanent residents who’re not Muslims, Parsis, Jews or Christians.
According to Section 13(1) and Section 13(2) of the Hindu Marriage Act, 1995, a petition for a divorce can be filed on the above-given grounds.
As per Section 13(2)(ii) of the Act, a wife can file for a divorce if the husband does not provide maintenance to his wife despite her living apart. Some of the requirement under this Act are:
Special Marriage Act, 1954
The Special Marriage Act, 1954 replaced the old Act III. This Act provides marriage and divorce laws for all people living in India and outside India irrespective of their religion.
A divorce can be filed under Section 27 of this Act by either spouse on the grounds mentioned above. One other ground included in this Act is that a spouse can file for a divorce if their partner is imprisoned for more than seven years under the IPC.
Parsi Marriage and Divorce Act, 1936
A divorce can be filed under the Parsi Marriage and Divorce Act, 1936 under the following grounds.
Christian Marriage and Divorce Act
Christians in India can file a divorce under the Christian Marriage and Divorce Act, 1957. A couple can petition for divorce through mutual consent if they have lived separately for at least two years and have mutually settled the child custody and maintenance. A divorce without mutual consent can be filed if:
By the husband, if his wife commits adultery after their marriage is solemnised and a wife can file for a petition if the husband changes his religion, commits bigamy or has committed adultery along with showing cruelty towards the wife.
Dissolution of Muslim Marriages Act, 1939
A Muslim marriage may be dissolved by court verdict under the Dissolution of Muslim Marriage Act, 1939. Under this Act, a wife may petition for a divorce on the following grounds. The Act is only applicable to women.
The Muslim Women (Protection of Rights on Marriage) Act, 2019
This Act criminalises triple talaq and deems it unconstitutional for men to instantly divorce their wives.
The Act provides the following protection to women:
Divorce laws in India can be categorised into three. – Divorce by Mutual Consent, Contested Divorce and Void Marriages.
Divorce by Mutual Consent
A divorce by mutual consent can be filed under the divorce laws in India if both the spouses mutually consent to the end of their marriage.
The couple will have to have
A petition for contested divorce can be filed if only one of the spouses wishes to divorce. The petitioner can file based on the grounds mentioned above for divorce.
A marriage that goes against the law is deemed as a void marriage.
When a couple agrees to divorce with mutual consent, the court will consider it under Section 10A of the Indian Divorce Act, 1869. Here is a good compendium of what to expect.
Divorce Procedure in India: Steps to proceed in the case of a divorce by mutual consent
The cost for hiring a divorce lawyer, documentation takes anywhere from 5,000 to 10,000. After the recent changes in the divorce law, the procedure can take from two months to six months from the date of filing.
Documents required to file a petition for a mutual divorce:
Divorce procedure in India: Steps involved in filing a petition for a contested divorce
Documents required for a contested divorce:
The cost for a contested divorce can be anywhere between 25,000 to lakhs.
Child custody is one of the major factors to be considered in the case of a divorce. The welfare of the children, financial maintenance, and a safe environment are some of the major factors that are to be examined. There are four types of custody.
Here is a good video that explains child custody.
The right to maintenance or alimony extends to any person economically dependent on the marriage. This includes spouse and children.
Maintenance is a regular, recurring payment, and alimony is a one time settlement. The court will take into account the earning potential of the spouse and their liabilities. If the other party cannot pay for the legal fees, the earning spouse would be ordered to pay it.
Constraints for determining the alimony
Divorce can be a traumatic event, even when it is by mutual consent, or an escape from an abusive marriage. The least that can be done is prepare for it by knowing beforehand what to expect, and what to do.
Hopefully, this will help.
Divya is a catmom, a hodophile and an intersectional feminist with a Master’s degree in English with Communication studies. She loves beaches and is currently trying to compensate for it by making resin beaches.
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