In India, the divorce the couple can take the divorce by two types:
- Divorce by mutual consent
- Divorce without mutual consent
Divorce By Mutual Consent
According to the section 13-B of the Hindu marriage act, 1955, the couple can take the divorce by mutual consent. They have to file the petition for divorce under 13-B before the court through the lawyer.
The mutual consent means that both the parties i.e.; husband and wife are mutually agreed upon for the peaceful divorce. This is the simple way to coming out from the marriage and the marriage is dissolved legally. The main requirement is the mutual consent of both parties.
There are three main aspects regarding the mutual divorce between the husband and wife.
The first is alimony or the maintenance issue between the parties. There are no minimum or maximum limit for maintenance is given under the law. It only depends upon the parties in case of mutual consent.
The custody of the children is the second aspect of the divorce. There must be mutual consent that the children should stay with their husbands or wife. If this is already mutually decided by the husband and wife, then they can take the divorce under mutual consent.
The third aspect is the property. The property includes the moveable and immovable and even the bank accounts. There must be mutual consent between the husband and wife regarding the property who will get what part of the property.
Questions regarding the divorce under mutual consent:
There are some questions related to the divorce which may clear the topic more clear and these answers will give more strength to know the topic. so let’s answers the questions.
When the parties can file a petition for divorce under mutual consent?
The parties may file the petition for mutual divorce after at least one year form the day of marriage. The parties have to show that they are living separately for one year or more before filing the petition for divorce and during this period, they are were not able to live together as husband and wife.
Where to file the divorce petition?
The petition for divorce under mutual consent can be filed in the family court of that city or district where the husband and wife are lived together at last time or at the time of marriage. Such a petition should be filed by the divorce lawyer.
Can any party withdraw the mutual consent petition after filing in the court?
The court gives six months after filing the petition. During this period either of the spouses can withdraw the petition by applying to the court that he or she does not wish to seek the divorce by mutual consent.
Can any party remarry before passing the decree form court?
It is clearly stated in the divorce rules that the remarriage without getting the decree of divorce is punishable under the law.
When the divorced person can remarry?
After the expiration of three months from the decree passed, if there is no notice has been given by another party.
Divorce without mutual consent
It is also known as the contested divorce. There are specific grounds are given where the petition can be made. The husband or wife can not seek divorce without any reason. Various reasons are given under the law as follow:
Grounds for the divorce without mutual consent:
- Metal disorder
- Communicable Disease
- Renunciation of world
- Presumption of Death
Cruelty is the ground for divorce. If can be physical or mental as the case may be. It is given under the law in India that if one spouse has reasonable ground that the other spouse’s conduct is likely to be dangerous, then this is the sufficient ground to seek for divorce due to cruelty under law.
Divorce in India-Hindu Marriage Act
In India, if any spouse commits adultery which is given under section 499 of the IPC (having consensual physical relations outside the marriage), another spouse can seek the divorce.
If a spouse deserting the other without any reasonable cause like adultery or cruelty is also a reason for divorce. However, it is given under the Hindu Laws that there must be a continued period of 2 years for desertion.
If either the spouses are converted his religion to another religion, this is also the ground for divorce. Here, this reason does not require any time to file the petition for divorce.
If the spouse id is not capable to perform the duties required in a marriage due to the mental illness, the divorce can be taken on this ground.
If the spouse is suffering from any disease which is communicable such as HIV, Aids, or any incurable form of leprosy, the other party can take the divorce.
Renunciation of world
If any of the spouses renounced the married life and make him or her Sanyasi, the other party can take the divorce in that case.
Presumption of Death
If the person is not been heard as being alive by anyone for a period of not less then seven years, in such a case, the other spouse can take the divorce.
What is Alimony?
When the two persons are married to each other, it is the law that they must support each other. Section 125 of the code of criminal procedure deals with the maintenance; the right to maintenance extends to any person who is economically dependent on the marriage. The section includes dependent children, indigent parents, and spouses.