The concept of divorce did not exist in pre-independent India the way it does
today. This was because the concept of marriage was considered to be a very
sacrosanct one and divorce was a concept that was alien to the mandate of their
British India only had the Divorce Act, 1869 which provided for the divorce
procedure in India for people professing the religion of Christianity. But other
than that, there seemed to lack any enactment for the divorce process in India.
It was only 8 years after independence that independent India’s Parliament
thought it incumbent to enact a law on marriage and related laws. As a result,
the Hindu Marriage Act, 1955 was enacted. Since the law is one which is not
commonly spoken of in the community due to the stigma attached, it is important
for you to know your legal rights with respect to divorce in India.
Types of Divorce Petitions
Divorce With Mutual Consent: Section 13-B of the Hindu Marriage
Act, 1955 provides for mutual consent divorce in India. This concept is
relatively recent as compared to contested divorce since it was introduced
in the Act only in 1976. This provision allows the parties to arrive at a
divorce settlement amicably with the court playing only a role involving
administrative assistance. The parties get to decide the terms of the
divorce. Since the involvement of lawyers and that of the court is
relatively less as compared to a contest divorce, a mutual consent divorce
seems to be much less cheaper and faster than a contest divorce.
Divorce Without Mutual Consent:Divorce without mutual consent is
often also known as Fault Divorce or Contest Divorce. Sections 13 (1) & (2)
provide for the various grounds on which divorce may be claimed before a
court of law, the difference being that under Section 13 (1) both the
parties may file a petition for divorce but under Section 13 (2) it is only
the wife who is allowed to file a petition for divorce.
The various grounds under Section 13 (1) are: infidelity, cruelty, desertion
for a period of two or more years, insanity, venereal disease of a
communicable form, renunciation of the world and conversion of religion.
Grounds under Section 13 (2) include Rape, sodomy or bestiality by the
husband, non-adherence by the husband to an order of paying maintenance,
under-age marriage of the woman which has been repudiated by the woman
before she attained the age of 18 and imprisonment of the husband as a
habitual criminal. Section 13 (2) grants special rights to a woman for
divorce in India. The purpose was to deal with the centuries’ long history
of domination and subjection of women by patriarchs.
Leprosy which existed as a ground of divorce until very recently was removed
as a ground by an amendment in February 2019.
Irretrievable Breakdown of Marriage:The Marriage Laws Amendment
Bill, 2010, which has been passed by the Rajya Sabha but is yet to be passed
by the Lok Sabha provides for the insertion of Section 13C in the Hindu
Marriage Act which if introduced, shall provide for Irretrievable Breakdown
of Marriage. Though the provision has not been enacted formally, the Supreme
Court has, in exceptional cases granted a divorce by citing the ground of
irretrievable breakdown of the marriage.
What are the constituents of divorce?
How are property matters settled? In case of a mutual consent divorce, the parties are free to decide how they
wish to divide their matrimonial properties. However, if there is a lack of
consent in the way in which properties are to be decided, the court may
assist the parties in the same. Nonetheless, the division can be claimed
only of the joint matrimonial property and not of the individual
self-acquired property of a spouse. A Hindu woman may claim right over her
husband’s property after his death under the Hindu Succession Act, 1956.
Section 125 of the Code of Criminal Procedure provides for maintenance to
wives and there exist maintenance provisions even under the Hindu Adoption
and Maintenance Act, 1956. For this, the court will consider the property
and the remuneration of the husband.
What about child custody? The Guardians and Wardens Act, 1890 is the principal act which determines
the aspects of custody and guardianship in India. The custody of a child may
be either sole/exclusive (where only one parent has the custody, though the
other parent may have visiting rights), shared/joint (where both parents
share the custody) or third party custody (where neither the mother nor the
father gets the custody). The custody of children below 5 years of age is
usually given to the mother.
Under the Muslim Women (Protection of Rights on Divorce) Act, 1986 the
custody of boys below 2 years I have given to the mother and after that to
the father but the custody of the daughter remains with the mother.
How much does it cost to get a divorce? Though the cost of filing a divorce petition is very meagre (it differs from
state of state, but is usually around INR 100 to INR 250), but the main
costs in a divorce proceeding are that of the lawyer. Even the court fees
are a very small amount, including the amount for an appeal which, in some
cases, maybe as less as INR 25. However, the lawyers’ fees may vary
depending upon the lawyer and upon the financial capabilities of the client.
It is therefore advisable that you clearly understand the fee arrangement
from your lawyer before appointing them.
How to file a divorce based on mutual consent:
Given the multiplicity of options, one might wonder, what is the simplest
procedure for filing for divorce in India. As of now, mutual consent divorce is
the best answer. Provided below is a detailed enunciation of how one can file
for divorce in India with special emphasis on mutual consent divorce.
The procedure involves that both parties together file a petition for divorce in
the district court if they have been living as husband and wife for the past one
year. The court may then order a cooling-off period that may last from anywhere
between 6 to 18 months. After that, both the parties need to file a second
petition for divorce and the court shall then grant them a divorce decree.
Recent jurisprudence on the matter has led to the following observations:
- The period of one year’s separation must be immediately preceding the
first divorce petition, though physically staying apart is not
quintessential. They could have stayed under one roof but without any
intention of sharing the relationship of a husband and wife.
- The cooling-off period of 6 to 18 months maybe waived by the court if it
is of the opinion that there is no possibility of reconciliation between the
parties. This is because the Supreme Court has been of the opinion that the
intent of the cooling-off period was only to allow the parties to avoid
making any decision any haste and to give them ample time to reconsider
their decision. The intent, however, was never to cause them continued
trauma or agony and therefore, if there existed absolutely no possibility of
reconciliation, it would be futile to defeat the ends of justice in order
merely to stick to the letter of the law.
- The most important element of mutual consent divorce being that both the
petitions must be filed by both the parties mutually. If one party backs out
in the midst of the process, mutual consent divorce cannot be proceeded
with. Therefore, both parties need to be on the same page with respect to
getting the divorce till the divorce decree has been finalized and this is
something that cannot be compromised with under any circumstance.
What documents are required to file for divorce?In a petition for divorce, the parties may be required to submit the
following documentary proofs:
- A validly issued marriage certificate of the couple. Though important,
this document is not a condition the precedent for divorce. However, if the
same cannot be produced, the couple may have to submit other proofs of the
marriage, like the wedding photographs etc.
- Address proofs of each of the parties they are living under different
roofs, or address proof of the matrimonial home if they are living together.
- Remuneration proofs of the parties may be required for deciding the
question of maintenance. This may or may not be supplemented with Income Tax
Statements for the past couple of years.
- Passport-sized photographs of each party to the divorce.
- Proof of attempts of reconciliation between the parties. This may be in
the form of correspondence through letters or e-mails or transcripts of
The Laws Governing Divorce In India
The Hindu Marriage Act (1955)The Hindu Marriage Act, 1955 provides for marriage and divorce for Hindus. The
Act mentions that Hindus also include Buddhists, Sikhs, and Jains. The Act must
be read along with its supplementary legislation, for example, the Hindu
Adoption and Maintenance Act etc.
The Special Marriage Act (1954)This Act applies when two people belonging to two different religions marry each
other. As the name suggests, it provides for the special situation of an
inter-religious marriage. The existence of such a law is reflective of the
progressive and liberal mindset of our lawmakers.
The Divorce Act (1869)This is the Act that governed divorce of Christians in British India.
The Muslim LawMuslim personal law is governed largely by uncodified customs and practices,
also known as the law of Sharia. But mostly, it is governed by the rules
enshrined in the Holy Quran. Also, the rules vary slightly for Muslims belonging
to the two different sects- Shias and Sunnis.
The personal law relating to marriage and divorce is well developed in India
with enough number of legislation and case laws on the matter. However, these
laws must also evolve with the changing society and the family courts of India
have done a remarkable job in recognizing the same.