This post has been written by Deyashini Mondal, a first-year student at Symbiosis Law School, Pune
Marriage is considered to be a relationship that brings people together but it also into a legally binding contract. Under this contract, the two individuals, legally declare themselves to be partners for life.
Nonetheless, like most things on life, the marriage may also come to an end due to various reasons and even when one individual walks out of it, they are still legally bound by the contract and therefore putting them under certain obligations.
What is divorce?
The process by which a marriage or a marital union is terminated is a divorce. The process of divorce involves the canceling and reorganization of legal responsibilities and marital duties, thereby dissolving the ties of marriage between a married couple under the particular rule of law of the country or state.
Previously as per Hindu Law, there was no such thing as putting an end to a marriage as it was considered a sacrament that could never be broken.
Broadly there can be two types of divorce, one which is by mutual consent where both the partners agree to separate and the other where is no mutual consent between the partner for various reasons which will be discussed below.
Divorce by Mutual Consent
According to Section 13B of the Hindu Marriage Act, both the husband and the wife have the right to dissolve their marriage by a decree of divorce with the help of a divorce lawyer. The grounds laid down for the concerned party before they separate are follows:
- Both the parties have been living separately for a period of one year or more.
- Both have not been able to live together.
- There has been a mutual agreement between the two about the dissolution of their marriage.
These are the steps that are usually supposed to be followed for filing a divorce.
- Filling for the petition:
Initially, in the family court, a joint petition for dissolution of marriage for a decree of divorce must be presented by both the spouses on the grounds that both the individuals have been living separately for more than a year or stating that they can no longer live together and have mutually agreed to separate. It has to be signed by both parties.
- Appearing before Court and scrutiny of the petition:
It is mandatory for both the parties to appear before the family court with their individual lawyers. The court would scrutinize the petition along with the provided documents. The court may even attempt to reconcile the two parties but if impossible, then the divorce matter will be proceeded with.
- Passing of orders for the recording of statements on oath:
Once the scrutiny is done and the Court is satisfied, it may order the parties’ statement to be recorded in an oath
- Order on First Motion and passing of 6 months period before Second Motion:
Once the recording of the statements is done, the 1st motion is passed which is followed by a period of 6 months which given to both the parties to divorce before they can file the second motion. The maximum period for filing the 2nd motion is 18 months from the date of presentation of the divorce petition in the family court unless the same is withdrawn
- Second Motion and Final Hearing of the Matter:
One both parties have decided to go ahead with the divorce after the 6 months’ time period, they are allowed to proceed to the final hearings. This step involved the parties coming to the family court and recording their statements. It has however been declared by the Supreme Court that upon the discretion of the Court this 6-month period can be waived off.
In cases where the parties have settled their alimony, custody of the child, and other pending issues and it is seen that the 6-month period would just add to their sufferings then the 6-month period could be waived off. If the 2nd motion is not made within 18 months as mentioned above, the court will not pass and decree for the divorce. It is also a settled law that either party can withdraw their consent at any time before the passing of the decree.
- Decree of Divorce:
In case of a mutual divorce, there must exist consent from both the parties that there shall be no differences in contentions regarding alimony, child custody, maintenance, property, etc. A complete agreement between the husband and wife is a must. If the court is satisfied with the allegations and seeing that the marriage is irreconcilable then it will pass the decree of divorce.
The documents/information required for Divorce by Mutual Consent
There are several documents that the parties would be required to submit for a divorce by mutual consent.
- Address proof of husband and wife
- Evidence that may prove that the husband and wife have not been living together for more than a year
- Professional and Financial (present earnings) details of both husband and wife
- Evidence that can show failed attempts to reconcile
- Marriage Certificate
- Information regarding family background
- Property and asset details of husband and wife
- Income Tax statements of both parties
- Wedding photographs of the husband and wife
Divorce Without Mutual Consent
In the cases where both the parties have not agreed for the divorce also called a contested divorce, there are only specific grounds on which the petition can be made. A husband or a wife cannot just ask for a divorce without stating a reason. This is, however, not applicable to all religions.
Under the Hindu Marriage Act, if one spouse has a reasonable apprehension that the other is likely to cause any harm to be it physical or mental, it can be considered a ground for a divorce.
If one spouse deserts the other without reasonable cause, a divorce can be given. However, there must be proof of it. According to the Hindu Marriage Act, the desertion should have lasted for 2 continuous years.
Divorce can be sought by a spouse if the other spouse converts to another religion.
- Mental Disorder
If due to some mental disorder, if one of the spouses is not able to perform the minimum duties of a marriage, it can be a ground for divorce.
- Communicable Disease
According to Hindu law, a divorce can be given if the spouse is suffering from a communicable disease such as HIV/AIDS, syphilis, gonorrhea. It was under the Personal Laws (Amendment) Act, 2019 that leprosy was omitted as a ground for divorce.
- Renunciation of the World
If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce.
- Presumption of Death
If the spouse has been missing for at least 7 years and no news of them being alive is known then death can be presumed and a judicial decree of divorce can be obtained.
Important factors to be settled during a divorce
Alimony is the obligatory support that tends to exist even after the dissolution of a marriage which thereby means that if one of the spouses is incapable of supporting themselves then the other partner has to provide support. The Alimony claim strengthens when the other party also agrees to take the custody of the child.
- Custody of Child
In case of a mutual divorce, the custody of the child gets settled amicably. However, in case of a contested divorce, the court talks to the child in a friendly manner and tries to under what would be good for the child and eventually award the custody to the deserving parent. Till the age of 5 to 7 years, the mother is the natural guardian of the child without any prejudice.
- Settlement of Property
The property gets settled according to the ownership of the spouses at the time of divorce.
It is written in the Hindus, marriage is a sacred bond and before the Hindu Marriage Act, 1955 there was no provision of a divorce. It was considered really extreme to even consider divorce for Indian society. The wives were always the sufferers and faced all the consequences. Currently, a lot of laws have been established to help individuals get out of an unhappy marriage by seeking a divorce procedure in a court and therefore helping women who no longer have to endure the pain of their husbands. Every process has a negative and positive trait and therefore it is equally essential for the lawmakers to deal with the divorce process with a lot of caution.