What is DIVORCE and SEPARATION ?
The Dissolu,on of Muslim Marriage Act, 1939
The Parsi Marriage and Divorce Act, 1936
The Special Marriage Act, 1956
The Foreign Marriage Act, 1969
The Hindu Marriage Act, 1955
Central legisla,ons on divorce
Indian Divorce Act, 1869
Ways of obtaining divorce
Mutual consensus has to be arrived at by the husband and wife on:
- Alimony or maintenance issues
- Child Custody
CONTESTED One party has to prove cruelty (physical & mental), deser,on, unsoundness of mind( of Incurable form), impotency, etc. to obtain divorce from court.
ANNULMENT Grounds for annulment are fraud, pregnancy of wife by person other than the husband, impotency prior to the marriage that subsists even at the ,me of filing the case.
maintenance by court Grounds to determine, Status of the husband and wife, Salary/ Income of the husband, Salary /Income of the wife, Liabili,es of husband, if any Dependants, Reasonable wants of claimant, Financial background, Movable & immovable proper,es of the husband
Grounds for divorce under the Hindu Marriage Act,1955
- Adultery – The act of indulging in any kind of sexual rela,onship outside the marriage is termed as adultery. It is also cons,tutes a criminal oﬀence for males. One single act of adultery is enough for either spouse to file a divorce pe,,on on this ground (1976 amendment).
- Cruelty – Any kind of mental and physical injury that causes danger to life, limb and health cons,tutes cruelty. The intangible acts of cruelty through mental torture are judged on a series of incidents. Food being denied, con,nuous ill treatment, abuse to acquire dowry, perverse sexual act/s, etc. are included under the defini,on of cruelty. Either spouse can file a divorce pe,,on based on this ground.
- Deser,on – If one of the spouse voluntarily abandons his/her partner for a minimum period of two years, the abandoned spouse can file a divorce pe,,on on the ground of deser,on.
- Conversion – If either spouse converts to a diﬀerent religion(any religion other than Hinduism) then their partner may file a divorce pe,,on based on this ground.
Other grounds for divorce under the Hindu Marriage Act, 1955
- Leprosy – If either spouse has a ‘virulent and incurable’ form of leprosy, then their partner can file a divorce pe,,on on this ground.
- Venereal Disease – If either spouse is suﬀering from a communicable disease such as AIDS then their partner can file a divorce pe,,on on this ground.
- Renuncia,on – If either spouse renounces all worldly aﬀairs by embracing a religious order then their partner can file a divorce pe,,on based on this ground.
- Not Heard Alive – If the spouse is not seen or heard to be alive by those who are expected to be ‘naturally heard’ by the person, for a con,nuous period of seven years, the person is presumed to be dead and their partner has the right to file a divorce pe,,on on this ground.
- No Resump,on of Co-‐habita,on – It becomes a ground for divorce if the couple fails to resume their co-‐habita,on ader the court has passed a decree of separa,on.
- Muslim Marriage Act, 1939 Grounds for divorce under The husband’s whereabouts are unknown for a period of four years. The husband has failed to provide maintenance to the wife for a minimum of two years. The husband has been under imprisonment for seven or more years.
The husband is unable to meet marital obliga,ons. If the woman is married before fideen and decides to end the rela,onship before she turns eighteen. The husband indulges in acts of cruelty.
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If either spouse has leprosy or communicable venereal disease or is of unsound mind for a minimum of two years, then their partner has the op,on of filing a divorce case. Not been seen or heard to be alive for a period of seven or more years. Failure in observing the res,tu,on of conjugal rights for at least two years. Inflic,ng cruelty and giving rise to mental anxiety that can be injurious to health and life. Wife has an addi,onal ground to file a divorce case based on the grounds of rape, sodomy and bes,ality. Husbands do not have this right.
Grounds for divorce under Parsi Marriage and Divorce Act, 1936
ØØ In case of a con,nuous absence of either spouse for a minimum period of seven years, their partner can file a divorce pe,,on on this ground.
ØØ Non-‐consumma,on of marriage within one year is a ground of divorce for either spouse.
ØØ If either spouse is of unsound mind then their partner can file a divorce pe,,on on this ground provided that the partner was unaware of this fact at the ,me of marriage. Also, the divorce pe,,on must be filed within three years of marriage.
ØØ In case of pregnancy by a man other than the husband, provided the husband was unaware of the incident during the ,me of marriage and that he did not undergo sexual intercourse with her ader gefng to know about this fact, he can file a divorce pe,,on on this ground within two years of marriage.
ØØ Adultery, bigamy, fornica,on, rape, or any other type of perverse sexual act/s are grounds other grounds for divorce.
ØØ Any act of cruelty is a ground for divorce for either spouse.
ØØ If either spouse is suﬀering from any venereal disease (such as AIDS) then their partner can file a divorce pe,,on based on this ground.
ØØ If the wife is forced into pros,tu,on then she has a right to file a divorce pe,,on against the husband.
ØØ If either spouse is sentenced to prison for seven years or more then their partner has a right to file a divorce pe,,on on this ground.
ØØ In case of deser,on of either spouse for two or more years their partners have a right to file a divorce pe,,on on this ground.
ØØ Non-‐resump,on of cohabita,on ader passing an order of maintenance or a decree of judicial separa,on is a ground for divorce for either spouse.
Steps to get a divorce
- The pre condition for divorce for Hindus is that the couple should be living separately for at least one year.
- A lawyer should be hired.
- There are two types of approaches to file an application for divorce which are-by mutual consent or by contest.
- The papers to be submitted in the court include the Income Tax returns for three years, details of present income, the purpose for applying the divorce, birth and family details and the details of the assets possessed.
- A Vakalatnama has to be issued in favor of the lawyer to present the case.
- The grounds for Hindu divorce can be anything from adultery, desertion, mental disorder, renunciation, life threatening disease (explained above).
- Once the application is submitted, the case comes up for hearing after six months.
During this period, the couple is asked to reconsider their decision for divorce.
- In case the couple does not appear in the court after this “cooling period” the application stands void automatically. The couple also has the option of withdrawing the application during these six months.
- During the divorce process, the couple should come to a conclusion related to custody of child, return of marriage gifts, post divorce maintenance and litigation expenses.
- In cases of divorce by mutual consent, the alimony amount is decided mutually, but in contested cases, the courts of law steps in to decide the alimony amounts, if the parties fail to do so.
The process is ini,ated by filing a pe,,on, supported by aﬃdavits from both partners, in the district court. Known as the First Mo,on Pe,,on for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconcilable diﬀerences, they can no
Procedure of filing for divorce by mutual consent
longer stay together and should be granted a divorce by the court. Ader six months, the couple should file a Second Mo,on Pe,,on and reappear in the court. This gap is given between the two mo,ons, to oﬀer the estranged couple adequate ,me to reconsider their decision of dissolving their marriage. Ader hearings from the partners, if the judge is sa,sfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a decree of divorce by mutual consent.
If either party withdraws the divorce pe,,on within 18 months of the filing of the First Mo,on Pe,,on, the court will ini,ate an inquiry. If the concerned party con,nues to refuse consent to the divorce pe,,on, the court will no longer have the right to grant a divorce decree. But if the divorce pe,,on is not withdrawn within the s,pulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both par,es
Factors for discussion
Custody of the Child
Alimony of the wife
Return of Streedhan
Whenever it appears to the district court that the wife has no independent income suﬃcient for her support and the necessary expenses of the proceeding, it may, on the applica,on of the wife order the husband to pay to her the expenses of the proceeding or such a sum having regard to the husband’s income which may seem resonable to the court.Women will have exclusive rights over her ‘streedhan’ (personal wealth), mainly in the form of her jewellery and cash gids. She will be en,tled to her share in any jointly-‐held assets (house, shares, bonds, mutual funds, saving schemes) acquired and jointly paid for during the course of the marriage.
DETAILS OF ALIMONY
The Supreme Court has ruled that even though bigamy may be illegal under Hindu law, such a marriage can’t be declared immoral and the ‘illegal’ wife cannot be denied alimony as long as she did not know about the previous marriage.
The ruling came with the apex court legi,mising the maintenance claim of a Hindu wife whose marriage was declared illegal on grounds that it was bigamy. The court said her husband was liable to pay alimony to her and maintenance for their children.
The court may pass a decree as it may seem to be just and proper with respect to the custody, maintenance and educa,on of minor children, consistently with their wishes, wherever possible. The Court has the power to revoke, suspend or vary all such orders and provisions with respect to the custody of a child ,ll the ,me the decree is pending.