THE CONCEPT OF DIVORCE

image description

Marriage is considered one of the most important aspects of life. And especially in a country like India, it is not only important but sacred too. In our country rituals and religious ceremonies play a huge role during the marriage and because of this religious aspect the concept of marriage is still considered to be a very sacrosanct one. Thus the concept of holiness that comes with marriages makes the concept of divorce very much alien to the mandate of the religion.

The concept was divorce was not accepted in the pre-independent era. But with the changes in times people have started accepting the divorce is not a sin but a remedy which is available to an individual in situations wherein he/she cannot move ahead with their respective marriages. It is an option which gives an individual to walk out of their marriages in situations which cannot be mended.

During the British era, India only had the Divorce Act, 1869 which provided for the divorce procedure in India for people professing the religion of Christianity. But other than that, there seemed to lack any enactment for the divorce process in India. It was only 8 years after independence that independent India’s Parliament thought it incumbent to enact a law on marriage and related laws. As a result, the Hindu Marriage Act, 1955 was enacted. 

Get your copy of Magazine: https://intolegalworld.com/emagazine.aspx

Types of Divorce Petitions

  1. Divorce with Mutual Consent: The Hindu Marriage Act, 1955, provides for divorce by mutual consent under Section 13-B. This concept was introduced in the year 1976 and thus it seems to be comparatively more practical than the previous provisions contested divorce. Under this, the parties are permitted to arrive at a divorce settlement amicably, wherein the court only plays the role of an administrative assistant. The parties filing for the divorce under these sections are at liberty to decide the terms of the divorce. Since the involvement of lawyers and that of the court is relatively less as compared to a contested divorce, a mutual consent divorce seems to be much less-cheaper and faster than a contested divorce.

  2. Divorce Without Mutual Consent: This concept is often referred to as Fault Divorce or Contest Divorce. The Hindu Marriage Act, 1955, under Sections 13 (1) & (2) provide for the various grounds on which divorce may be claimed before a court of law, the difference is that under Section 13 (1) both the parties may file a petition for divorce but under Section 13 (2) it is only the wife who is allowed to file a petition for divorce. The grounds laid down under section 13 (1) are as follows:

  • infidelity,

  • cruelty

  • desertion for a period of two or more years, 

  • insanity, 

  • the venereal disease of a communicable form, 

  • renunciation of the world and conversion of religion.

Whereas, the grounds under section 13 (2) bestows special rights on a woman to avail divorce in India which are as follows:

  • Rape, 

  • sodomy or bestiality by the husband,

  • non-adherence by the husband to an order of paying maintenance, 

  • under-age marriage of the woman which has been repudiated by the woman before she attained the age of 18 and imprisonment of the husband as a habitual criminal.

Leprosy which existed as a ground of divorce until very recently was removed as a ground by an amendment in February 2019.

  1. Irretrievable Breakdown of Marriage: The Marriage Laws Amendment Bill, 2010, which has been passed by the Rajya Sabha but is yet to be passed by the Lok Sabha provides for the insertion of Section 13C in the Hindu Marriage Act which if introduced, shall provide for Irretrievable Breakdown of Marriage. Though the provision has not been enacted formally, the Supreme Court has, in exceptional cases granted a divorce by citing the ground of irretrievable breakdown of the marriage. 

 

How to file a divorce based on mutual consent?

The procedure to file under mutual consent involves that both the parties to the divorce are required to file the divorce petition together. The filing of the divorce petition takes place in the District Court of competent jurisdiction. Based on the petition the Court may direct for a cooling period that may range from 6-18 months. After the completion of the cooling period, the Court shall proceed with the divorce decree if there are no chances of reconciliation.

 Important observations under various judicial decisions are as follows:

  1. The period of one year’s separation must be immediately preceding the first divorce petition, though physically staying apart is not quintessential. They could have stayed under one roof but without any intention of sharing the relationship of a husband and wife.

  2. The court at its discretion and after taking into consideration all the material aspects of a case may waive off the cooling-off period of 6 to 18 months. This is because the Apex Court has been of the opinion that the intent of the cooling-off period is only to allow the parties to avoid making any decision in haste and to give them sufficient time to ponder upon their decision. The intent, however, was never to cause them trauma or agony and therefore, if there existed absolutely no possibility of reconciliation, it would be futile to defeat the ends of justice in order to merely to stick to the letter of the law.

  3. The most important element of mutual consent divorce is that both the parties should file the divorce petitions mutually.  If at any stage of the proceeding either of the party backs-out, then the mutual consent divorce cannot be proceeded with. Therefore, both parties need to be on the same page with respect to getting the divorce till the divorce decree has been finalized and this is something that cannot be compromised with under any circumstance in the event of divorce by mutual consent.

https://publication.intolegalworld.com/100-landmark-judgment-2019-20.aspx

Important questions to be considered while filing for divorce:

  1. How are property matters settled?

  • The couple is at full liberty to decide as to how they wish to divide their matrimonial properties in case the divorce is filed by mutual consent. However, if there is a lack of consent in doing so, then in such situations the Court may assist the parties. Nonetheless, the division can be claimed only of the joint matrimonial property and not of the individual self-acquired property of a spouse. Moreover, A Hindu woman may claim right over her husband’s property after his death under the Hindu Succession Act, 1956.

  • Further, Section 125 of the Civil Procedure Code, 1908, also provides for maintenance of wives. 

  • While dividing the properties the court will consider the property and remuneration of the husband.

 https://publication.intolegalworld.com/100-landmark-judgment-2019-20.aspx

  1. What about child custody?

  • The court may direct for the custody of the child. The custody may be either sole/exclusive (where only one parent has the custody, though the other parent may have visiting rights), shared/joint (where both parents share the custody) or third party custody (where neither the mother nor the father gets the custody). 

  • In India, The Guardians and Wardens Act, 1890 is the principal act which determines the aspects of custody and guardianship in India. The custody of a child who is below 5 years of age is usually given to the mother.

  • However, while deciding the custody the Court will always take into consideration the best interest of the child.

  • Under the Muslim Women (Protection of Rights on Divorce) Act, 1986 the custody of boys below 2 years is usually given to the mother and after that to the father but the custody of the daughter remains with the mother.
     

  1. How much does it cost to get a divorce?

  • Though the cost of filing a divorce petition is very meagre (it differs from state to state, but is usually around INR 100 to INR 250), but the main costs in a divorce proceeding are that of the lawyer.

  • Even the court fees are a very small amount, including the amount for an appeal which, in some cases, maybe as less as INR 25. 

  • However, the lawyer’s fees may vary depending upon the lawyer and upon the financial capabilities of the client.

The documents that are required to file a divorce:

  1. A valid marriage certificate of the couple. Though important, this document is not a condition the precedent for divorce. In situations wherein the marriage certificate is not available then the couple may have to submit other proofs of the marriage, like the wedding photographs etc.

  2. Address proofs of each of the parties if they are living under different roofs, or address proof of the matrimonial home if they are living together.

  3. In order to decide the question on maintenance and alimony, the court may ask for remuneration proofs of the parties. This may or may not be supplemented with Income Tax Statements for the past couple of years.

  4. Passport-sized photographs of each party to the divorce.

  5. Proof of attempts of reconciliation between the parties. This may be in the form of correspondence through letters or e-mails or transcripts of telephonic conversations

Get your copy of Magazine: https://intolegalworld.com/emagazine.aspx

Various personal laws Governing Divorce in India:

  1. The Hindu Marriage Act (1955):

The Hindu Marriage Act, 1955 provides for marriage and divorce for Hindus.  Buddhists, Sikhs, and Jains are considered to be Hindus under the scope of this Act. However, This Act must be read along with its supplementary legislation, for example, the Hindu Adoption and Maintenance Act etc.

  1. The Muslim Law:

Muslim law is mainly governed by sharia, i.e. through uncodified customs and practices. Quran and rules laid down under it play a pivotal role in shaping the Muslim law. But the rules for divorce differ to some extent between the two major sects of Muslims, i.e. the Sunnis and the Shias.

  1. The Divorce Act (1869):

The Christians in the Country are governed under this act.

  1. The Special Marriage Act (1954):

This Act mainly brings inter-faith marriages under its ambit.  This Act paves the way for the special situation of an inter-religious marriage. The existence of such a law is reflective of the progressive and liberal mind-set of our lawmakers.

Conclusion:
The law relating to marriages and divorces have evolved to a large extent in order to suit the changing society. The judicial decisions in this regard have also played an equal role in doing the same.  The Indian society has off-late started accepting the concept of divorce and this no more remains a stigma at least in the educated and literate society.