Before the time of modern civilizations and the institution of family, tribes lived together and there was no separation of sexual partners. This led to people questioning the paternity of the children and then it was decided that women should stay loyal to one man while men can have multiple partners to pass on their lineage. Over time this idea of monogamy extended to the men as well and marriage, as an institution, was established. Marriage was seen as an eternal union between man and woman; a sacred relationship that would last forever but the evolution of society has led to it becoming detached from religion and more about convenience and reaching the social milestones. Therefore, people now have options to dissolve a marriage if they wish to.
Ways to dissolve a marriage
In India there is no Uniform Civil Code that governs aspects like marriage, succession and inheritance as each religion follows their own personal laws. Couples who feel that their marriage has broken down and that staying in a legally recognized relationship would be detrimental to both parties have many options available to them. Dissolution of marriage is governed by the Hindu Marriage Act, 1955 for Hindus, Sikhs, Buddhists and Jains, the Dissolution of Muslim Marriages Act, 1939 for Muslims, the Indian Divorce Act, 1869 for Christians and the Special Marriage Act, 1954 for inter-religious couples.[i] Couples can choose to dissolve marriages through divorce, annulment or judicial separation. A divorce is a legal decree that ends a marriage before the death of either spouse while an annulment declares a marriage to have been null and void. Judicial Separation is a recognized separation of the partners, but the marriage is not considered to have ended and neither partner is allowed to get remarried.[ii]
Difference between divorce and an annulment
A divorce or a legal dissolution of marriage is the ending of a valid marriage which returns both parties to their pre-marriage status where they can enter into domestic relationships or get remarried, but an annulment is a legal procedure which declares that the marriage never really existed.[iii]
Grounds for Divorce
A couple can file for divorce with mutual consent where both parties consent to the divorce and there is no ‘guilty’ party or one partner who is blamed for the breakdown of marriage. For a mutual consent divorce petition to be accepted, the couple must have been living separately for over a year or more (one year under the Hindu Marriage Act, 1955 and two years under the Indian Divorce Act, 1869) and they have to mutually agree on the terms of child custody (if children are involved), alimony and maintenance, and property.[iv] The condition that the couple should have been living separately does not mean that they must be living under different roofs, it simply means that the couple should not be living as husband and wife.
One of the partners can also file a petition for divorce without mutual consent (contested divorce) on the grounds of cruelty, adultery, desertion, conversion, mental disorder, communicable disease, renunciation of the world or presumption of death.[v] A petition for divorce without mutual consent can only be filed when one of the partners is accused of any of the grounds mentioned above.
In order to file a successful petition for divorce, the couple must provide certain documents like identity proof, address proof, marriage certificate, passport size photographs, evidence of failed efforts of reconciliation, evidence that the couple has been living separately, family background, income tax statements, details of assets owned by the petitioner/s and details of profession and present renumeration.[vi]
Grounds for annulment
Marriages can also be annulled, and the procedure is the same as a divorce, but the grounds are different and narrower. A couple can seek an annulment only on the grounds of fraud, pregnancy of the wife by a person other than the husband and impotency before and during the marriage. The status of the parties after an annulment is as though they have never been married before.
However, bigamous marriages, inter-family marriages (marriage between blood relatives) and marriage between close relatives are considered to be void and automatically annulled according to the Hindu Marriage Act, 1955. Marriages that were entered into by duress, fraud, intoxication or unawareness of mental illness are voidable and can be annulled by one of the parties to that marriage.
Procedure for filing a petition for divorce or annulment
A party can file a petition for divorce or annulment at a family court having jurisdiction in the area where parties last resided, where the wife is currently residing or where the marriage was solemnized. After the petition is accepted, the respective counsels for the parties must present the cases in front of the court and the court will consider the evidence provided and may even make attempts at reconciliation. If reconciliation is not possible, the court will hear all the arguments, consider evidence and file a first motion where the parties take an oath. After the oath, both parties are given 6 months to reconsider their petition for divorce and if they are sure of their decision after 6 months, they can file a second motion, after which the court will hear the final arguments and pass a decree for divorce or annulment.
Section 13-B of the Hindu Marriage Act, 1955 demands that the couple must have a 6 month period between the first and second motion so that no rash decisions are taken but in the recent case of Amardeep Singh v Harveen Kaur[vii], the Supreme Court held that the court can waive this ‘cooling off’ period if the judges feel that the marriage has irretrievably broken down.
Recent trends of Adultery
Under Section 497 of the Indian Penal Code, adultery was criminalized thereby imposing culpability on a man who engages in sexual intercourse with another person’s wife. A man could be punished for adultery with a prison term of up to 5 years while women were exempted from punishment. Furthermore, a woman could not bring a complaint against her husband for engaging in an adulterous relationship with an unmarried woman.
However, in the case of Joseph Shine v Union of India[viii], a 5-judge bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as unconstitutional because it not only treated women as the property of their husbands by restricting extra-marital affairs by the woman while not extending the same to their husbands but also because it infringed on the liberty and privacy of a woman by discriminating against married women and perpetrating gender stereotypes.[ix] As of 2019, adultery is no longer a criminal offence but it is still a valid ground for divorce or annulment of a marriage.
The dissolution of a marriage, through any means, is an important decision as there are many aspects to consider. Being a sacred concept, the dissolution of a marriage was considered to be a taboo in the Indian society but now the society has evolved to an extent where couples can freely choose to dissolve a marriage if they can convince the court that there is no point to continuing their relationship. However, the couple must consider the psychological and emotional effects that the dissolution process can have on them and their children and this is why the 6-month cooling-off period is provided for under section 13-B of the Hindu Marriage Act, 1955.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[i]Indian Divorce Act, India Filings, (August 10, 2019, 7:06 PM), https://www.indiafilings.com/learn/indian-divorce-act/.
[ii]Ending a Marriage: Divorce, Separation & Annulment FAQs, Justia, (August 10, 2019, 7:18 PM), https://www.justia.com/family/divorce/docs/ending-a-marriage-faq/.
[iii]Louise Banks, What’s the legal difference between Annulment and Divorce, LegalZoom, (August 10, 2019, 7:40 PM), https://www.legalzoom.com/articles/whats-the-legal-difference-between-annulment-and-divorce.
[iv]Athulya, Know your legal rights: Divorce Law in India, VakilSearch, (August 10, 2019, 8:01 PM), https://vakilsearch.com/advice/divorce-in-india/.
[vii] Amardeep Singh v Harveen Kaur, (2017), Civil Appeal 11158 of 2017, (India).
[viii] Joseph Shine v. Union of India, (2017), Writ Petition (Cr.) 194 of 2017, (India).
[ix]Disha Chaudhry, Joseph Shine vs. Union of India, Centre for Law and Policy Research, (August 14, 2019, 6:57 PM), https://clpr.org.in/litigation/decriminalisation-of-adultery-constitutional-challenge-to-section-497-of-the-ipc/.