Divorce and Indian Law
The dissolution of marital relationship between two spouses is conceptualized as divorce by the legal provisions of the Indian law. The Indian enactments that govern the rule for obtaining divorce are namely known as – (i) The Hindu Marriage Act, 1955, (ii) The Dissolution of Muslim Marriage Act, 1939, (iii) The Divorce Act 1869, (iv) The Parsi Marriage and Divorce Act, 1936, (v) The Muslim Women (Protection Of Rights On Divorce) Act, 1986
Types of Divorce
Divorce is obtained through either on (a) mutual divorce: mutual agreement between the spouses of a marriage, or (b) contested divorce: by contesting for divorce between the spouses.
Grounds for obtaining divorce
The grounds for obtaining divorce under Hindu Marriage Act, 1955 in provided under section 13(1). However, the provision of the Act prescribes that married couples cannot obtain divorce either on mutual consent or by contesting for divorce unless the duration of their marriage has been over a year.[1]
- Adultery
- Cruelty
- Desertion of one spouse by another spouse for a continuous period of not less than two years
- Conversion to another religion
- Unsound mind
- Leprosy
- Venereal disease
- Renunciation
- Non-resumption of co-habitation
- Bigamy
- Failure to exercise the restitution of conjugal rights for a period of one year or more after such decree is obtained, by the spouse(s) in a marriage, from a competent family court
- A spouse not being heard alive for a long period[2]
- Willful non-consummation within one year of its solemnization[3]
Necessary documents for obtaining mutual and/or contested divorce
The following documents are required, in respect of the spouses who are parties to a marital relationship, for obtaining either a mutual divorce or a contested divorce:-
- Document concerning identity proof of the spouses
- At least three years’ income statement
- Marriage certificate
- Document concerning family details of the spouses
- Documentary evidence of judicial separation if it is applied
- Documentary evidence of failed reconciliation if the same is ordered by a competent court of law
- Joint petition and affidavit by the parties of a marriage in case of a mutual divorce is applied
- Petition, affidavit, counter-affidavits and depositions duly signed and authorized by the parties to a marriage
- Vakalatnama duly signed and attested by the advocates representing the parties
Procedure of Divorce:
The following enactments elaborate the procedure for the application seeking dissolution of marriage by the parties to such wedlock. [4]
- Determining the apt Jurisdiction: Petition under the Act[5] can be entertained in the place of marriage, or where the petitioner (in case of wife) or respondent resided (at the time of presenting the petition), where the parties have last resided together.
- Consult an Advocate: Parties to a marriage will approach an advocate seeking legal advice for the dissolution of their marriage both in the case of divorce on mutual consent and contested divorce.
- Notice: In case of contested divorce the advocate of the applicant spouse will issue a legal notice to the respondent spouse seeking his reply within a stipulated time frame. For divorce on mutual consent, the issuance of no such legal notice is required.
- Moving the Court: In case of divorce on mutual consent by the parties to a marriage, such parties will move a joint petition, after six months of their marriage is over and not later than 18 months from the date of solemnization of marriage, to a competent court of the district judge stating their separation with each other for one year prior to the date of presenting such application. [6]
In case of contested divorce, the applicant spouse will move a competent family court with his/her application. The competent court will issue summons to the respondent spouse to appear before the court and make his/her submission. - Hearing: The competent court will hear out the submission of the parties to a marriage and upon its satisfaction, the court gives its verdict as to the dissolution of marriage.
- Judicial Separation: The competent court may advise the contesting parties seeking divorce to opt for judicial separation which does not terminate the marital relationship but bars the rights of restitution of conjugal rights. [7]
- Issue of Decree for dissolution of marriage: The competent court, upon satisfaction that the attempts to save the marriage have failed superlatively, will issue a decree for the dissolution of such marriage. The parties will obtain divorce and end the marital relationship. The competent court will also pass an order concerning issues of alimony and maintenance to be provided to the former spouse by the other, custody of children, etc. If a party finds himself/herself aggrieved by the decree of dissolution of marriage by the competent family court, they may move the higher court seeking the reversal of such order for divorce and/or alterations of conditions regarding alimony, maintenance, custody of children, etc.
If a party finds himself/herself aggrieved by the decree of dissolution of marriage by the competent family court, may move the higher court seeking the reversal of such order for divorce and/or alterations of conditions regarding alimony, maintenance, custody of children etc.
The power of the Hon’ble Supreme Court in respect of its right to grant divorce:
The Hon’ble Supreme Court by virtue of its inherent power under Article 142 of the Constitution of India, may directly grant divorce to the parties even in a situation the parties to such marriage does not move any family court or any high court for the same. For a better understanding please refer to the case of Shilpa Shailesh-vs-Varun Sreenivasan.[8]
