Divorce Law in India
A divorce is among the most traumatic occurrences for any couple. It is long-winded and costly affair in India. Even couples that mutually agree to the divorce, however, must prove that they have been separated for a year before the courts consider their plea.
Types of Divorce Petitions:
- A couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other.
- Divorce with Mutual Consent:
- When husband and wife both agree to a divorce, the courts will consider a divorce with mutual consent. For the petition to be accepted, however, the couple should be separated for over a year or two years (as per the relevant act) and be able to prove that they have not been able to live together.
- There are three aspects regarding which a husband and wife have to reach a consensus. One is alimony or maintenance issues. As per law, there is no minimum or maximum limit of support. It could be any figure or no figure.
- The second consideration is custody of the child
- Child custody in a mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses.
- As per Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple should be living separately for at least one year before divorce proceedings can begin. Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at least two years. Do note that living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period.
Divorce without Mutual Consent
- In case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a reason. The reasons for divorce are as follows, though some are not applicable to all religions.
Cruelty: Cruelty may be physical or mental cruelty; there is sufficient ground for obtaining divorce due to cruelty by the spouse.
Adultery: In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence
Conversion: Divorce can be sought by a spouse if the other spouse converts to another religion
Mental Disorder: If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought
Communicable Disease: If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.
Renunciation of the World: If the spouse renounces his/her married life and opts for sanyasa, the aggrieved spouse may obtain a divorce.
Presumption of Death: If the spouse has not been heard of as being alive for a period of at least seven years, who is alive can obtain a judicial decree of divorce
What is Alimony?
- When two people are married, they have an obligation to support each other. Under the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage.
- The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the husband having sufficient means.
In case either spouse is unable to pay for the divorce, these expenses would also be paid by the spouse that does have an income
The duration and amount of alimony
- The alimony, its amount and tenure, depend upon the length of marriage. A divorce after a decade of marriage entitles the spouse to a life-long alimony.
- Economic condition or the earnings of the person who is to provide the alimony.
- The health of both spouse.
- The spouse that retains custody of the child would be entitled to either pay lesser alimony or be entitled to a greater amount while the child is a minor.
Property matters settled?
- It seldom matters whether you or your spouse own the property.
- If you are also looking after children, the case is much stronger. While the property may be granted to one or the other spouse in the divorce settlement, until this is done, both spouses have the right to remain on the property.
What documents are required to file for divorce?
Address proof of husband
- Address proof of wife
- Marriage certificate
- Four passport size photographs of marriage of husband and wife
- Evidence proving spouses are living separately since more than a year
- Evidence relating to the failed attempts of reconciliation
- Income tax statements for the last 2-3 years
- Details of profession and present remuneration
- Information relating to family background
- Details of properties and other assets owned by the petitioner