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Marriage and Divorce in India
Marriage is traditionally conceived to be a legally recognized relationship, between an adult male and female, that carries certain rights and obligations. According to Anthony Giddens “marriage can be defined as a socially acknowledged and approved sexual union between two adult individuals. When two people marry, they become kin to one another; the marriage bond also, however, connects together a wider range of kin groups. Parents, brothers, sisters and other blood relatives become relatives of the partner through marriage”.
The definition of marriage relationship includes guidelines for behaviour in matters of sex, obligations to offspring and in laws, division of labour within the household, and other duties and privileges of marital life. In all cultures, marriage is seen as a way to help societies regulate sexual activity, encourage procreation, and develop accountability, as well as provide for parental care, mutual help, and affection.
What is divorce?
Divorce or the dissolution of marriage is the final termination of a marital union, cancelling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties.
Why Divorce is required?
Everyone has to make compromises in married life, but ultimately despite the compromises and sacrifices one must have a bond with one’s partner. This bond is companionship, and mutual understanding, but sometimes the situation gets so worse and it is difficult to live together as consequence the divorce is required.
Following reasons are there which leads to divorce such as:
A. Ego Problem
B. Lack of mutual understanding
C. Blaming each other
There are some other reasons which required the divorce:
- Adultery
- Cruelty
- Desertion
- Conversion to another religion
- Unsoundness of mind or mental disorder
- Virulent and Incurable form of leprosy
- Venereal disease
- Renounce the World
- Not heard for a period of seven years or more
How to get Divorce?
DIVORCE BY MUTUAL CONSENT
Divorce by Mutual Consent under Section 13 B of Hindu Marriage Act 1955 can be obtained by following:
- a) Petition must be presented by both the parties to marriage;
- b) That the parties have been staying separately for more than one year;
- c) The parties have not been able to live together;
- d) The parties plead that they have mutually agreed that their marriage should be dissolved;
e) Petition is presented not earlier than one year from the date of marriage.
CONTESTED DIVORCE AND UNCONTESTED DIVORCE
A contested divorce is one in which the parties agree on the terms such as property division, custody, visitation, or child support.
UNCONTESTED DIVORCE
An uncontested divorce is one in which the parties don’t agree and may have a judge or jury decide one or more of the terms.
How to File a Divorce?
Time period to Get Divorce
As such no specific period is there for filling a divorce petition, it depends from case to case but to file a divorce petition by mutual consent under section 13B the time limit will be 6 to 18 months from the marriage and any cases filed before it would be not entertained by the court.
Jurisdiction to file a Divorce Petition
For the purpose of jurisdiction for filing divorce petition, there are three place for conferring Territorial Jurisdiction
- Where the Marriage took place,
- Place where the respondent resides,
- Where the parties last resided together.
What is Maintenance?
If any person having sufficient means neglects or refuses to maintain – His wife, his legitimate or illegitimate minor child, his legitimate or illegitimate child who has attained majority, his father or mother, unable to maintain himself or herself.
A Magistrate of’ the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.
The monthly allowance shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
FAQ's on Divorce in India
You cannot get divorce in India via online, but you can file divorce petition without coming to India.
You can file Divorce petition from the place of residence of the respondent, or the place of marriage or the place where the couple last lived together. But the wife can file wherever she resides after separation. The husband can also file the divorce petition from his place of residence at the time of filing, under certain conditions.
Yes a petition to get divorce in India be filed anywhere in India.
Minimum of two times. But depending on the place of filing, it is possible to reduce it to just one.
If it is for divorce by mutual consent, both of them should attend. But depending on the place of filing, it is possible to avoid the appearance of at least one spouse.
Under Section 14 of the Hindu Marriage Act, 1955, no petition for divorce can be filed within one year of the marriage. But in case the petitioner’s case is of exceptional hardship, the High Court is empowered to grant leave to file the case before the expiry of one year.
If it is a divorce by mutual consent of the spouses, Six months from the date of filing. But depending on the place of filing, we can reduce it to just two months. It is possible to get divorce before six months.
Time varies from six months to 2 years.
No prescribed time for separation except under certain conditions. It could varies from six months to 1 year.
There is no such law. The general law is that the property belongs to the person in whose name it stands.
Mediation plays an essential role in divorce proceedings in India. Courts often encourage parties to engage in mediation to explore the possibility of reconciliation or to resolve issues related to alimony, child custody, and property division amicably. Mediation is a voluntary process that involves a neutral third-party mediator who helps facilitate negotiations between the divorcing couple. If an agreement is reached through mediation, it can be submitted to the court for approval.
In divorce cases involving children, the court’s primary concern is the child’s welfare. The court considers factors such as the child’s age, education, overall development, and the ability of the parents to provide a suitable environment. Generally, the court aims to ensure that the child’s best interests are protected, and the custody decision is made accordingly. Joint custody, where both parents share the responsibility, is also an option if it is in the child’s best interests.
It depends on the facts and circumstances of each and every case.
With regard to the re-marriage after divorce, Section 15 of the Hindu Marriage Act, 1955, provides that after a decree of divorce has been granted, in case there is no right of appeal against the decree or if there is a right, the time has expired without an appeal having been presented or if the appeal filed has been dismissed, it shall be lawful for either party to marry again. The period of appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from the date of the decree or order.
After divorce/separation, the husband can move an application for the custody of a child under Guardian & wards Act and if the parties are Hindu then under Hindu Minority & Guardianship Act. The husband also has a right to claim the right of meeting the child and to take the child during holidays till the disposal of the petition for custody. The parties can ask for the above said interim relief from the Court.
Remarriage without getting divorce is a punishable offence with seven years imprisonment if the wife prefers the complaint at any point of time even if she had consented for the remarriage initially.
It is possible under certain conditions.
Stridhan is, generally speaking, what a woman can claim as her own property within a marital household. It may include her jewellery – gifted either by her family or by her in-laws, gifts presented to her during the wedding or later, and the dowry articles given by her family.
Whatever is given to the wife at the time of marriage and even after the marriage by either side is a part of stridhan. It also includes the articles which she has purchased from her earnings after the marriage.
Instead of giving regular maintenance, it may be possible to make a one time settlement in which the person gives a lump sum amount to the wife said to be Alimony. Alimony will be given to the wife after mutual Divorce or during this procedure.
Documents Required: Address proof of Husband, Address proof of Wife, Marriage Certificate and Four passport photographs of marriage of both husband and Wife.
Yes, a foreign national married to an Indian citizen or residing in India can file for divorce in Indian courts, provided they meet the jurisdictional requirements and comply with the applicable laws.
Parties going through a divorce can opt for alternative dispute resolution methods such as mediation or arbitration to reach a settlement outside of court. These methods involve a neutral third party assisting the parties in negotiating and resolving their disputes.
The waiting period, also known as the cooling-off period, varies depending on the type of divorce. In cases of divorce by mutual consent, there is a mandatory waiting period of six months, during which the couple is given time to reconsider their decision. In cases of fault-based divorce, there is no specific waiting period mentioned in the law, but the duration of the legal proceedings can vary based on factors like court backlog and complexity of the case.
The division of assets and property in a divorce in India is based on various factors, including the nature of the assets, their value, and the contributions made by each spouse during the marriage. The court aims to achieve a fair and equitable distribution of assets. It is advisable to compile a comprehensive list of assets, including immovable property, bank accounts, investments, and other valuable possessions, and present them during the divorce proceedings.