Law of Divorce in India - legal aspects and technicalities

February17

Law of Divorce in India - legal aspects and technicalities

Divorce in India

Introduction

Divorce is usually the last resort for married couples that are not compatible with each other. The decision towards taking a divorce is immensely hard and it comes with various societal and legal issues.  Especially with regards to the legal part, a divorce in India generally takes a very long time and involves a lot of legal costs which affects both the parties financially. A spouse seeking for a divorce must be aware of the laws around divorce and the general procedures around them, to ensure that he or she is well prepared of the divorce and is willing to spend the required time and money to go through with the process. 

In this article, we will explain about the various laws governing divorce in India, and the grounds for a divorce.

Divorce and Personal Laws

The process of marriage, divorce, inheritance and other personal issues in India are governed by personal laws. There are different personal laws for people hailing from different religions. These personal laws are basically the customs of practices of people belonging to particular communities, and those customs being codified into law. The personal relationships of persons including divorce hailing from the Hindu, Sikh, Buddhist and Jain religion are governed under the Hindu Marriage Act, 1955. Personal relationships including marriage, & divorce of Muslims are governed under the Dissolution of Muslim Marriages Act, 1939. For Parsis, the procedure of divorce is provided under the Parsi Marriage and Divorce Act, 1936. Christian divorce in India is regulated by the Divorce Act, 1869. For inter-community marriage divorces the procedure and rules have been laid down under the Special Marriage Act, 1954. 

Thus, a divorce in India is regulated under various laws for different communities. However, certain fundamental principles are same for all divorces in India. These principles are the grounds for divorce. 

Grounds for Divorce in India

As stated earlier, the procedures for divorces in India can be different, but the grounds for divorce largely remain the same. There are two main grounds for divorce. They are divorce by mutual consent, and divorce by non-mutual consent.

Divorce by Mutual Consent 

Divorce by mutual consent are those kinds of divorces in which both the spouses agree to the divorce. After receiving consent of both the parties, the courts will generally grant the divorce but not always. To file for a divorce by mutual consent, the couple must be separated for at least a year or more than a year depending upon the personal law. The couple would also have to prove to the court that they would not be able to live together or co-habit in the same place anymore. Divorce by much mutual consent is way simpler and faster than the contested divorce of non-mutual consent. Sometimes, one of the spouses who is slightly reluctant to a divorce, could be persuaded to take this route so as to avoid the lengthy legal battle, costs and the stress associated with non-mutual consent divorce. In divorce by mutual consent the custody of children and monetary resources are also handled with ease once the parties get into the agreement. 

The total duration of a usual divorce by mutual consent may vary between a period of 12 months to 18 months. This speed of divorce through mutual consent is quite fast and could even be faster depending upon the particular judge. The speediness of divorce by mutual consent is due to the fact that both the parties are willing to divorce, and the judges take this willingness into consideration while granting the divorce with relative ease and assurance. 

Section 13B of the Hindu Marriage Act, 1955 and the Section 28 of the Special Marriage Act, 1954 provide that the separation of the married couple has to be for over 1 year before the divorce by mutual consent can be filed. Meanwhile Section 10A of the Divorce Act, 1869 which is for the divorce of Christians provides that the separation of a Christian married couple has to be of at least two years before a divorce can be filed. This shows that, even though the grounds for divorce can be same for all kinds of divorce that is divorce by mutual consent but the process of getting a divorce can subtly vary depending on the personal laws.  

Divorce without Mutual Consent

Divorce without mutual consent is a divorce where the consent of the other spouse is not necessary for divorce. These types of divorces are also known as contested divorce and usually take a long time to resolve with a lengthy legal battle. Some of the grounds for a divorce without a mutual consent include:

• Adultery – Adultery was a criminal offence for a very long time in India under section 497 of the Indian Penal Code until the Supreme Court struck down the provision in a landmark judgment Joseph Shine v. Union of India back in 2018. However, adultery remains as one of the prime reasons for divorce without mutual consent. 
• Desertion – The act of deserting a spouse without any real reasons or explanations is a ground for divorce. The party who has been deserted has to file for a divorce, however the one who files for the divorce has to show proof to the court of actual desertion. Under section 13(1)(ib) of the Hindu Marriage Act, 1955, desertion is a ground for divorce. 
• Cruelty – Cruelty is another form of divorce without mutual consent that is allowed by section 13(1)(ia) of the Hindu Marriage Act, 1955. This cruelty can be of either physical or mental in nature. 
• Mental Disorder – If a spouse is suffering from a mental disorder and it is not possible for the other spouse to continue living with him or her, then that can be a ground for divorce. The Hindu Marriage Act, 1955 allows such a divorce under section 13(1)(iii).

Some of the other grounds for divorce without mutual consent includes conversion to a different religion, communicable diseases, renunciation of the world, and presumption of death. 

Conclusion

A divorce can be a very distressing experience for a married couple as it involves not only societal and legal issues but also financial and mental health problems. Before committing to a divorce, the couple or the individual should be aware of all the legal issues and have a basic knowledge the law and the procedures. This will allow them plan out the proceedings properly and deal with the whole process in a better way.