India is considered as land of vast religion, so it have different cultures of Marriage which means that it has various laws regarding Divorce too. According to different religions and communities’ couples may end up marriage through different laws of Divorce which they are discussed below in detail.
Divorce means the legal dissolution of marriage through court or other competent body. Divorce is to end bond of marriage by an official or by legal process. A decree of Divorce, which is granted by the family court or local District court that allows a party to get separate as marriage get dissolved. In India the divorce is governed by personal laws and it depends upon the laws of different religions.
Divorce in Hindu religion is governed by the “Hindu Marriage Act, 1955” and this law is followed by Buddhist, Sikh and Jain.
The provision of divorce in Muslim is governed under the “Dissolution of Muslim Marriage Act, 1939”.
Law of Divorce in Christian is governed by “Indian Divorce Act, 1869”.
In Inter Caste and Inter Religious Marriage
In such marriages, the divorce is covered in the provision of ” Special Marriage Act, 1954”. In India there is a provision of “Foreign Marriage Act 1969”, which deals with the divorce law where either of party belong to other country or Nationality.
In India Divorce law are broadly categorized into 3 forms.
1. Divorce with Mutual consent.
2. Contested Divorce.
3. Void Marriage.
Divorce by Mutual Consent
When both the husband and wife wants to get separate legally with their will is divorce by mutual consent. Mutual consent in divorce generally means when both husband and wife agree for peaceful separation from each other legally.
In Hindu law Mutual consent is provided under Sec.13-B of Hindu Marriage Act, 1955, which defines that “when both the parties agree for peaceful separation. Mutual consent is very simple way to dissolve the marriage through the legal procedures. When Parties seek divorce by Mutual consent, they need to file a petition before the court through a Divorce lawyer.
When to file divorce by mutual consent
i) After completing one year of marriage the divorce petition can be filled.
ii) Before filing divorce petition the husband and wife needs to stay separately for time period of a year or more.
Where to file the divorce petition and procedures
i) Where both husband and wife, were staying together during or after their marriage need to file divorce petition in Family Court by A Divorce Lawyer.
ii) Petition is submitted in a family Court by a lawyer as an Affidavit.
iii) After filing petition the Parties need to record their statements, Court grants 6 months of “cooling off” period to the couple.
iv) After completing 6 months of cooling off period the couple need to be present before the Court for second motion and in second motion the courts grants the decree of the divorce.
But in case if party wants to withdraw the petition of Mutual consent then, then according to the Hindu Marriage Act 1955, the party can withdraw from the mutual consent divorce in between the “Cooling Off” period. After this application filing the Court grants No divorce Decree. After this the party can file normal petition for divorce under Sec.13 of Hindu Marriage Act, 1955.
- If only one person wants to split, he or she will start the process by filing a divorce motion in family court.
ii. Under Section 13 of the Hindu Marriage Act, 1955, Section 2 of the Dissolution of Muslim Marriage Act, 1939, Section 10 of the Indian Divorce Act, 1869, or Section 32 of the Parsis Marriage and Divorce Act, 1936, a disputed divorce may be filed.
iii. The motion must be correctly written, with legal grounds and attachments.
iv. No forgiveness can be given for a matrimonial offence.
To file Divorce Petition under contested Divorce there are some specific grounds;
1. Cruelty be it physical or mental.
2. Voluntary sexual activities with another person.
3. When one party is of unsound mind.
6. Venereal Disease
7. Desertion of one spouse without reasonable cause. The Desertion should be of minimum two years as per Hindu Marriage Act 1955.
8. When one party is being missing for a period of 7 years or more and renounced the world.
There are some circumstances where court announce the wedding to be illegal that means Void Marriage.
The circumstances are~
1. Sapinda relations.
3. When person falling within degrees of prohibited relationship.
In Hinduism, the word sapinda refers to cousin marriages. The topic must be first generation, and the sapinda boundary-defining shared ancestor must be within sapinda limit.
Bigamy is considered as offence because married spouse is not allowed to marry another person before dissolution of first marriage.
Degrees of Prohibited relationship
Two persons are said to be within the degrees of prohibited relationships: if one may be a lineal ascendant of the opposite. For instance, a Daughter is not allowed to marry her father and grandfather. Similarly, a mother is not allowed marry her son or grandson because these all are prohibited relationship of marriage.
There are Some Steps For Filing Divorce
1. File and serve divorce petition.
2. Respond to the petition.
3. Hire an attorney.
4. Pre-trial of legal motion.
5. Settlements and negotiations.
6. Correct trial (if settlement is false).
7. Appeal in Higher court.
In India Remarrying without getting Divorce may be a Punishable offence with seven years of Imprisonment.
• web site of bar Association of India visited on 7 April 2021.