The divorce process in India is under the jurisdiction of the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
According to the Hindu Marriage Act, a divorce may be given on the grounds of cruelty, desertion, conversion, mental disorder, leprosy, venereal disease, renunciation of the world, and not heard being alive for seven years.
Division of marital property, determination of child custody, and the right to pursue a remarriage are some of the other things covered under the Special Marriage Act. A divorce can be granted on the grounds of irretrievable breakdown of marriage, cruelty, desertion, conversion, insanity, and communicable disease.
In India, divorce can be done in two ways: mutually with the consent of both parties or by a dissenting court. A divorce by mutual consent can be granted if both the parties agree to the divorce and have lived separately for a minimum of one year.
A contested divorce can even last for several years to be finalized, because the court process is usually lengthy. Besides, the court may also ask the couple to attend the therapy and mediation sessions in order to try and get the relationship back on track.
It should be emphasized that divorce in India is often associated with certain social and cultural stigma. On the contrary, the divorce cases in India are on the rise lately.
Hindu Marriage Act, 1955 is a legal act that is applicable to Hindu couples, Buddhists, Jains, and Sikhs in India. According to the act, a divorce can be granted if either spouse files a petition in court and can prove one of the following grounds:According to the act, a divorce can be granted if either spouse files a petition in court and can prove one of the following grounds:
- Cruelty: If one of the spouses has treated the other with cruelty, either physically or mentally, the court may award a divorce.
- Desertion: A divorce may be granted by the court if the couple has been separated by the one spouse for more than two years.
- Conversion: If one spouse has changed to another religion, the other spouse might file for the divorce.
- Mental disorder: Should the other spouse be suffering from a mental disorder for a period of not less than five years, the court may grant a divorce.
- Leprosy: The spouse who has leprosy may be given a divorce by his or her wife or husband.
- Venereal disease: If one spouse has a venereal disease that is untreatable, the other spouse may ask for separation.
- Renunciation of the world: Thus, if one spouse has cut ties with the world and become a hermit or ascetic, the other spouse may file for divorce.
Not heard of being alive for seven years: The prolonged non-contact of one spouse for seven years or more may be a reason for the other to file for a divorce.
It is necessary to emphasize that the aims of divorce as per the Hindu Marriage Act are interpreted by the courts and can be complicated. The couples considering a divorce under the act are recommended to seek the help of a legal expert to gain knowledge of their rights and duties.
Divorce by Mutual Consent
Divorce by mutual consent is the procedure where both spouses decide to end their marriage and are able to come to a common ground on all the issues related to their divorce, i.e. the property division, alimony and the custody of children.
In India, a divorce by mutual consent can be granted if the following conditions are met:
- Neither of the spouses has ever been in the same house for a year.
- The two partners have submitted a joint petition for divorce to the district court.
- Both of the married couple have decided that they are going to divorce and the terms of the divorce have been discussed between them, that include the property, the child support, and the division of the child.
- Both partners have been in court and stated their agreement to the divorce.
- The court has been content that there has been no pressure or force applied to either of the spouses which would have led them to consent to the divorce.
If all the requirements are satisfied, the court may approve the divorce by mutual consent in the fastest possible way, usually six to 18 months.
A divorce by mutual consent is considered to be a much more peaceful and less contentious process than a contested divorce. Nevertheless, it is still recommended for both spouses to get advice from a lawyer to make sure that their rights and interests are preserved during the whole process.
The legal procedure for obtaining a divorce by mutual consent in India is as follows:
- Filing of the joint petition: Both of the spouses must file a joint petition for divorce in the district court where at least one of them has been living for a minimum of six months. The petition has to give, among other things, the facts of the marriage, the reasons for the divorce, and the terms of the divorce agreement.
- Waiting period: When the joint petition is submitted, the court will set a date for the hearing of the case, usually at six months later. While these two phases are taking place the spouses are supposed to be in different houses and fulfill the conditions for a divorce by mutual consent.
- Appearance in court: On the date the hearing is set, both spouses must be present in the court and state that they agree to the divorce. The court will look at the joint petition and the evidence that has been submitted to ascertain that there has been no attempt of coercion or influence on either spouse that has made them give the consent.
- Grant of divorce: The court will give the divorce if it is sure that the married couple has met all the conditions for divorce by mutual consent. The court will give a decree of divorce, which is the final legal document that finishes the marriage.
- Completion of formalities: Once the divorce is granted, both the spouses have to fulfill the formalities that are to be done like registering the divorce with the concerned authorities and dividing the assets and liabilities that are joint to them.
It is better for both spouses to consult a lawyer to make sure that the process of obtaining a divorce by mutual consent is conducted without any complications and in a smooth and efficient way. The legal professional can as well be the adviser of the couple on their rights and obligations and assist them to handle any legal issues that may be encountered during the whole procedure
Also read – https://blog.ipleaders.in/mutual-consent-divorce/
