A divorce is the legal process of ending a marriage by submitting a petition to a court. The matrimonial alliance between spouses ends when a court issues a divorce certificate, effectively ending the existing marriage. The division of assets and property as well as the issue of child custody are all part of the divorce process. In India, divorce procedures and laws vary by religion most of the time.
Common types of divorce in India
On a broad basis, there are two types of divorce:
Divorce by consent/ Mutual decision:
Section 13-B of the Hindu Marriage Act governs mutual divorce. In a mutual divorce, both spouses or husband and wife, mutually agree and express their consent to a peaceful separation. Alimony and child custody, if any, must be decided in advance by the husband and wife. They must live apart for at least one year before filing for mutual divorce, and mutual consent is the other requirement.
A divorce is referred to as a “Contested Divorce” when only one spouse files for divorce. A contested divorce can be filed for a number of reasons under Section 13 of the Hindu Marriage Act of 1955, including cruelty, religious conversion, unsound mind, communicable disease, and either spouse’s absence for more than seven years
What factors affect contested divorce?
Section13 of the Hindu Marriage Act, 1955 clarifies grounds on which contested divorce or separation can be obtained
- Adultery: It is a crime committed by either spouse when they have sex with someone outside of the marriage. (Now repealed)
- Cruelty: It is defined as an intentional act that poses a threat to life, limb, or mental health. It can incorporate causing torment, manhandling, and tormenting intellectually or truly.
- Desertion: Desertion occurs when one spouse willfully abandons another without any intention of returning in future. Renunciation for beyond two years could be a legitimate ground for separation.
- Conversion to another religion: In a Hindu marriage, if one of the spouses stops being a Hindu, it can be grounds for divorce.
- Unsoundness of Mind: Mental Illness, or a mental disorder that causes an abnormally aggressive person are all examples of mental disorders.
- Communicable Diseases and Leprosy: Leprosy is a chronic, contagious disease that causes nerve damage and skin lesions.
- No contact with the spouse: A spouse’s inability to communicate with one another for more than seven years may be grounds for divorce.
- Renunciation of the world: According to Hindu law, if one spouse has renounced the world and entered a holy order, the “Renunciation of the world” is grounds for divorce.
The wife alone can file for divorce on three additional grounds:
- The husband has committed rape, sodomy, or betrayal.
- The spouse was hitched before the age of fifteen.
- A pronouncement or request has been given by the court granting support to the spouse and they have not been living respectively for over one year
Rights Relating to a Divorce Case in India
The common rights discussed at the time of divorce by professional divorce advocates are as mentioned below:
- Right to Support and Maintenance
After separation, one spouse must pay the other spouse maintenance in order to make sure they are financially taken care of. The maintenance notion was created as a result of women being forced to stay in unhappy marriages due to their entire financial dependence on men. Now that things have changed, women are becoming financially capable of taking care of themselves.
Thus, presently support cannot exclusively be guaranteed by a wife however can likewise be asserted by a man under the Hindu Marriage Act, of 1955.
Conditions for making a maintenance claim
- Marriage is legal.
- The family’s primary breadwinner has stopped helping the spouse.
- The spouse who is asking for maintenance is incapable of or unable to take care of themselves.
A person cannot claim maintenance if they are in good health and able to earn enough money on their own. It is essential to understand that not only a spouse has the right to maintenance but also the following below also have it:
- Minor children
- Adult children if they are unable to take care of themselves due to physical or mental limitations.
- Financial support for the wife during the divorce process (from the filing date until the decree or dismissal date) is known as interim maintenance.
However, a spouse does not have the right to maintenance in the following situations:
- when they have an adulterous relationship while they are married.
- when the divorced spouse remarries
- if the spouses have mutually agreed to stay apart.
- In the unlikely event that the wife refuses to live with the husband for good reason.
- Right to Custody
A lot of people think that the mother always has a right to custody of her children. This is not correct. In a divorce by mutual consent, the courts typically concur with the parent’s decision, but they will also consider the child’s best interests. In a contested divorce, for instance, the courts will consider whether the mother or father is capable of maintaining the child.
Most of the time, it is not taken into account who makes more money. The court often assigns non-working mothers to care for their children, but fathers are expected to provide financial support.
The Guardian and Wards Act, passed in 1890, clearly states that the child’s welfare should be primary over customs or traditions when answering custodial questions.
If the child is under the age of five (or seven in Muslim personal law), the mother has the right to custody because newborns need a lot of care and attention.
- Right to Property
According to the law, a specific amount of property belongs to the person whose name has been registered for it. It does not matter who contributed the most money or who was the primary contributor. As long as the property is not challenged, the sole owner is entitled to keep it.
On the other hand, claims can be made on them if it is joint property. Before deciding how to divide the property, the court will thoroughly examine each party’s contributions. The property is typically given to one person, who is obligated to repay the contributions of the other.
The ancestral property of a man will not be subject to claims by the wife but the same can be claimed by the Children who have a legal right under Provisions of Indian Law
Gifts that a woman receives from her relatives at the time of her wedding is called a Streedhan. It is not divided at the time of divorce or kept with the husband. It may consist of cash and property of any kind. This property is unquestionable and belongs entirely to the woman.
How long does it take to get a divorce in India?
The facts and circumstances of the case determine how long it takes to complete a divorce process. It can take from 8 months to 2 years or more. While the parties fight for their rights on the various issues framed during the pendency of the case.
According to the process in India, divorce with mutual consent takes less time If a divorce petition is filed with both parties’ consent, it is likely to take less time. There are few disagreements in this case because the parties only need to demonstrate that they have been living apart for at least one year and have no intention of reconciling. The court must determine whether the necessary conditions have been met before it can grant a divorce decree to the parties if they still do not wish to continue their marriage.
Due to the fact that the parties in a contested divorce disagree on at least one major issue, they must go to court to resolve all unresolved issues with proper divorce lawyer advice. This makes the process take longer. Typically, getting a divorce of this sort takes more than a year.
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As discussed above, the divorce laws in India vary according to the religions and a lot many other factors that can be best explained with the assistance of divorce lawyer advice available. They would help you to analyse the existing situation of a client and guide you throughout the process to avoid any difficulty during the paperwork and execution of the final hearing.