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Advice on Divorce

Deciding that your marriage is over can be difficult. When marriages break down, there is a need to resolve other problems as well, such as child arrangements or financial matters.

Divorce is the legal dissolution of marriage. Under the Indian Divorce Act, separation is granted by a court of law after receiving a petition from either the wife or the husband. After a divorce, alimony, child custody, visitation, distribution of assets, and distribution of debts are dealt with.

India is a secular country and a large number of religions are practiced freely. So many religions are practiced including Hinduism, Islam, and Christianity. People solemnize marriages according to religious rites and ceremonies, which are mostly codified by statutory personal laws.

Indian Divorce Act

The Indian Divorce Act was framed in the Indian legal system in 1869. Divorce rules and procedures in India vary depending on the community of the couple.

The divorce between Christians as stated above is governed by the Indian Divorce Act, of 1869, Hindus, Buddhists, Sikhs, and Jains by the Hindu Marriage Act, of 1955, and Muslims by the Muslim Marriage Act, of 1939. Parsis by the Parsi Marriage and Divorce Act. , 1936. and civil and inter-community marriages through the Special Marriage Act, of 1956.

The State of Jammu and Kashmir is excluded from the purview of this Divorce Act, even if the resident resides in other states but those residing in Jammu and Kashmir will be eligible for these rules and provisions.

Types of Divorce Petitions

1. Divorce by Mutual Consent

Section 13-B of the Hindu Marriage Act, 1955 provides for divorce by mutual consent in India. The concept is relatively recent compared to contested divorce as it was only enacted into law in 1976. This provision allows the parties to reach a divorce settlement and the court only plays the role of administrative assistance. The terms of divorce should be decided by the parties. Since the involvement of lawyers and the court is relatively less than in a contested divorce, divorce by mutual consent appears to be much less expensive and faster than a contested divorce.

2. Divorce without Mutual Consent

Divorce without mutual consent is also often known as fault divorce or contested divorce. Section 13 (1) and (2) provide for various grounds on which a suit for divorce can be filed before a court of law, the difference being that under Section 13 (1) both parties can file a divorce petition but Section 13 (2) only allows the wife to file a divorce petition. is allowed.

The various causes under Section 13 (1) are infidelity, cruelty, desertion for a period of two or more years, insanity, venereal disease of an infectious nature, renunciation of the world, and conversion.

Article 13 (2) includes rape, sexual abuse or cruel treatment by the husband, non-compliance with maintenance orders by the husband, and minor marriage rejected by the woman before she reaches the age of majority. 18 and their husband imprisoned as a habitual criminal.

Article 13 (2) gives special rights to women for divorce in India. The aim was to address the long history of women's domination and subjugation by patriarchs over the centuries.

3. Irrevocable Denial of Marriage

The Marriage Laws Amendment Bill, 2010, which has been approved by the Rajya Sabha but is yet to be passed by the Lok Sabha, provides for the inclusion of Article 13C in the Hindu Marriage Act which, if enacted, would provide for irrevocable annulment of marriage. Although this provision has not been formally implemented, the Supreme Court has, in exceptional cases, granted a divorce on grounds of irretrievable dissolution of marriage.

Mansee Online
Expertise in Private Limited


Mansee Online

Expertise in Private Limited Company


Relevant Advice on Divorce

Following is some advice on divorce;

  • Get a Good Divorce Lawyer

    Don't think about saving money when hiring a lawyer and remember lawyers are there for their business and not to get you what you want. It never hurts to keep track of your lawyer's activities and his plan for case proceedings rather than blindly trusting your information.

  • Reject Joint Accounts and Credit Cards

    You don't want to spend on your wife's expenses that you no longer feel responsible for. You need to remove her name from all joint accounts before she takes an undue advantage. So you should curb your spending and channel it into areas that require your immediate attention.

  • Discuss Partition Options

    You and your wife should mutually settle on an intelligent way of dividing the assets to avoid protracted court battles and avoid additional expenses. Although in India, it is very difficult for women to claim property, it is safe to understand how much she expects to build you.

  • Avoid Indulging in Relationships During Divorce

    Most men in India cannot resist the temptation to enter into another relationship even when they are in the process of divorce. But for men, it is more important to maintain an image before the court to reduce the severity of the consequences of already favorable divorce decisions in the case of women. Dating during divorce proceedings should be avoided.

  • Abuse is a Complete No

    Out of desperation, men in India resort to physical, verbal, or sexual abuse to vent their anger. But undoubtedly, this will completely tip the scales in your wife's favor, leaving you with nothing but humiliation. You should learn to control your emotions and avoid arguments during a divorce.

  • Keep Proof of Communication

    Men today often hate what happened to the wife and all those family conversations. However, this is the key to your case and getting you a good settlement agreement in court. Emails, phone calls, and letters are clear which may be helpful in your case.

  • Settle Once-and-for-all Attitude

    Don't sign up for settlement agreement papers unless you're sure that's all you can walk away with. Often, you are so tired of the long divorce process that you just want to end and settle on an unwanted contract, which ends up being expensive in the long run.

Elements of Divorce

The following are some constituents of divorce:

  • Property Cases Settled

In the event of a divorce by mutual consent, the parties are free to decide how to divide their marital property. However, if there is a lack of agreement as to how the property is to be decided, the court may assist the parties in doing so. However, the partition can only be claimed on joint marital property and not on the spouse's personal self-acquired property. Under the Hindu Succession Act, of 1956 a Hindu woman can claim her property after the death of her husband.

Section 125 of the Criminal Procedure Code provides for maintenance to wives and maintenance provisions also exist under the Hindu Adoption and Maintenance Act, of 1956. For this, the court will consider the assets and remuneration of the husband.

  • About Child Custody

The Guardians and Wards Act, of 1890 is the principal law governing aspects of custody and guardianship in India. Custody of a child can be either sole/exclusive (where only one parent has custody, although the other parent may have visitation rights), shared/joint (where both parents have custody), or third-party custody (where neither the mother nor the father gets custody). Children below 5 years of age are usually given custody of the mother.

Under the Muslim Women (Protection of Divorce Rights) Act, 1986 I have given custody of the children below 2 years to the mother and then to the father, but The custody of the daughter rests with the mother.

Documents Required to File for Divorce

Following are the documents that are required for divorce in India;

  • A validly issued marriage certificate of the couple. Although important, this document is not a condition for divorce. However, if it cannot be submitted, the couple will have to submit other proof of marriage such as wedding photos, etc.
  • Address proof of each party living under a different roof or address proof of matrimonial home if they are living together.
  • Evidence of payment of the parties may be necessary to decide the question of maintenance. This may or may not be supplemented with income tax returns from previous years.
  • Passport-size photographs of each party for divorce.

Evidence of conciliation efforts between the parties. This can be in the form of letters or emails or transcripts of telephonic conversations.

Frequently Asked Questions

What are the 5 reasons for divorce in India?
Either spouse (husband or wife) can apply for divorce only on the following grounds and nothing else:
  • dultery
  • Cruelty
  • Sacrifice
  • Conversion
  • Madness
  • Leprosy
  • Venereal Disease
  • Relinquish
How much can a wife claim for divorce in India?
If alimony is paid in monthly payments, the Supreme Court of India has decided that 25% of the monthly salary of the husband should be paid to the wife. If alimony is paid as a lump sum, it is usually between 1/5 and 1/3 of the husband's net worth.
Can the husband get a divorce if the wife refuses?
A person can divorce when the other party is not ready to divorce. It is a contested divorce and can be filed in a court of competent jurisdiction. Thus, you do not need your spouse's consent to file a divorce petition in the proper court.
What can a wife claim in divorce?
After their divorce, the wife has the right to ask for maintenance and alimony for her and her children, however, she cannot claim the property in the divorce settlement. For example, A husband buys an apartment for his wife and himself after marriage and it is registered in his name.
How much does a divorce cost in India?
Although there is no fixed fee for lawyers in India, a mutual divorce there often costs anywhere from 5,000 to 50,000. All lawyers charge fees, depending on their stature, experience, and talent.
How many years of separation is equivalent to divorce in India?
Living apart for five or more years. If both spouses do not agree, they can wait five years before filing for divorce. There is no need to seek the permission of the other spouse to file for divorce on this basis.
Can a working woman get alimony in India?
In the case of employed women, if the court is satisfied that the wife's earnings are less than that of her husband, then she is also entitled to claim maintenance from her husband. The reason for this amount is given to maintain a basic standard of living like her husband.

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