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.
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Mansee
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Relevant Advice on Divorce
Following is some advice on divorce;
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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.
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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.
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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.
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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.
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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.
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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.
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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:
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.
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