Divorce, also known as dissolution of marriage, is the process of terminating a marriage or marital union. It usually entails the cancelling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. Divorce laws vary considerably around the world, but in most countries, divorce requires the sanction of a court or other authority in a legal process, which may involve issues of distribution of property, child custody, alimony (spousal support), child visitation/access, parenting time, child support, and division of debt. In most countries, monogamy is required by law, so divorce allows each former partner to marry another person; where polygyny is legal but polyandry is not, divorce allows the woman to marry another person.
A couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other.
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. Often, even when either husband or wife is reluctant, they still agree to such a divorce because it is relatively inexpensive and not as traumatic as a contested divorce. Matters such as children’s custody, maintenance and property rights could be agreed to mutually.
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. This must necessarily be worked out between the parties, as it is inevitably what requires the greatest amount of time in divorce without mutual consent. Child custody in a mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses. The third is property. The husband and wife must decide who gets what part of the property. This includes both movable and immovable property. Right down to the bank accounts, everything must be divided. It is not necessary for it to be fair, so long as it is agreed to by both parties.
The duration of a divorce by mutual consent varies from six to 18 months, depending on the decision of the court. Usually, the courts prefer to end mutual consent divorces sooner, rather than later.
As per Section 13-B of the 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 the 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.
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 may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.
In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
One spouse deserting the other without reasonable cause (cruelty, for example) is the reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.
Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before the divorce can be filed.
If the spouse is incapable of performing the normal duties required in marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.
If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhoea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.
If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce.
If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.
Law related to divorceLaw related to divorce, custody, maintenance, succession and inheritance are Personal laws. Especially marriage laws are more personal. In India following marriage laws exists:
When matrimonial dispute arises between parties to marriage, it brings number of litigations with it. It includes civil as well as criminal litigation and involves civil laws, Law of custody, Dowry Prohibition Laws, Domestic violation laws, property issues etc. For example:
Altura Legal is one of the best Law firm in Delhi NCR which practices matrimonial law at such a large scale. Around 50% of our practice involves matrimonial deputes which includes divorce cases, 498A, Bail, Trial of 498A, custody cases, maintenance cases, complaint under domestic violence act etc. We also help our clients in getting dispute resolved by invoking pre-litigation conciliation and mediation process, by filing an application under Delhi Mediation rules. Every district court and high court has mediation centers. As per convenience of client, we approach mediation centre to get settle the disputes at the pre-ligation stage. We also believes that for the matrimonial disputes, mediation and conciliation is the only way where both the parties settles their disputes with dignity. Its win-win situation for both of the parties where no one loses his/her case.
Divorce proceeding can be initiated by two ways. (a) Contested Divorce as defined under section 13 of Hindu Marriage Act-1955 and (b) Divorce by way of mutual consent. Some legal provisions are illustrated herein below:
13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion ; or
(iii) has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from veneral disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
Explanation.- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly.
13-B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
So, we provide comprehensive legal services to our clients so that they can get one window solution of every kind of matrimonial Disputes and at every level of disputes under matrimonial law, criminal law or disputes related to property. We also help our clients in getting dispute resolved by invoking pre-litigation conciliation and mediation process, by filing an application under Delhi Mediation rules. Every district court and high court has mediation centers. As per convenience of client, we approach mediation centre to get settle the disputes at the pre-ligation stage. Shruti Singh is one of the Best divorce lawyer in Delhi also believes that for the matrimonial disputes, mediation and conciliation is the only way where both the parties settles their disputes with dignity. Its win-win situation for both of the parties where no one loses his/her case.
The Bar Council of India does not permit solicitation of work and advertising by legal practitioners and advocates. By accessing the Altura Legal website (our website), the user acknowledges that:
