Divorce is the legal process by which two partners legally dissolve their marriage, either mutually or through dispute resolution. While divorce can be complex and emotionally straining, understanding divorce law in india will enable you to navigate it more easily and make informed decisions throughout.
Divorce laws vary depending on one’s faith: Hindus abide by the Hindu Marriage Act while Muslims employ Islamic Personal Law which allows for divorce through methods like Talaq and Khula.
Grounds for Divorce
Unretrievable Breakdown of Marriage – If the couple have not lived together for at least two years, this ground for divorce may apply to them.
Adultery- If either spouse commits adultery with another person, this could be grounds for divorce; however, in Joseph Shine v Union of India (2018) this was overturned by the Supreme Court.
Cruelty – If either spouse has been subjected to cruel treatment, they can use this ground for divorce; however, this option may not always be available and there is no statutory definition of cruelty.
Unsound Mind – If either spouse suffers from mental illness to such an extent that living together becomes unreasonable, filing for divorce on this ground may be justified. This includes such mental illnesses as schizophrenia and psychopathic disorders.
Leprosy – If either spouse has incurable, communicable venereal diseases that make their spouse susceptible to leprosy, they could file for divorce on this ground; however, under the Personal Laws (Amendment) Act 2019, leprosy no longer qualifies as grounds for separation and divorce.
Time Limits for Divorce
Divorce can be a challenging and emotional journey. However, there are resources available to you that can help ease this transition process. In general, divorce settlements and proceedings become less contentious when both parties consent to its dissolution.
Divorce cases typically take between six months and one year for courts to adjudicate depending on the reasons, and even more time when there is extensive evidence and testimony needed for trial proceedings.
Divorce proceedings in India typically begin with one spouse filing divorce papers citing legal grounds, followed by a mandatory six-month cooling-off period and evaluation by a judge. If reconciliation is possible, they will dismiss it while otherwise, they will grant a divorce decree. If child custody issues are involved, additional hearings may need to be held and decision may require further hearings; typically joint custody will be awarded.
Separation
Judicial separation is a legal alternative to divorce that enables couples to live apart while remaining legally married. It does not aim to dissolve a marriage but allows both partners time and space for reflection about their relationship – particularly useful when domestic abuse has played a part. Sometimes judges even encourage reconciliation through counseling or mediation services.
Starting the process requires both spouses to create and submit a petition with details about the marriage, each spouse individually and any reasons they cite for seeking separation. As part of their request for relief under law (e.g. Section 10 of the Hindu Marriage Act or Section 23 of the Special Marriage Act), this notice must also cite to specific sections (such as 10 or 23 ) under which relief may be sought. Common grounds for judicial separation may include bigamy (marrying multiple people at once), rape, sodomy or bestiality, conversion/apostasy from Hinduism without consent, conversion/apostasy to another religion without consent, unsound mind (mental illness, incomplete development of mind, or psychotic disorders) as well as unsound minds. Before issuing such orders the court will review all relevant evidence before issuing their rulings.
Maintenance
Maintenance, also referred to as an ancillary relief, provides financial support during divorce proceedings for spouses in either interim (ie: for a specified timeframe or permanently). This support may take the form of either short-term (interim) or permanent payments (permanent).
The Supreme Court has recognized a husband’s obligation to support and care for his wife as part of secular law that applies equally to all married women, children and parents regardless of religion.
One can apply for maintenance in family court or magistrate courts under Section 125 CrPC. The applicant will need to present evidence of their financial needs and amount sought, such as income and expense statements from both parties as well as evidence regarding any disparate financial situations between them. A judge will then decide upon an amount to pay out in maintenance payments as well as whether maintenance should continue after divorce is finalised.