Divorce, which is the formal dissolution of a marriage, is never an easy choice for partners to make, since it involves various legal, emotional, and economic factors. Additionally, personal laws based on religion govern divorce procedures in India.
Interested in learning more? Well, this blog can serve as your in-depth guide to explain the many divorce types in India, giving you an overview of the legal procedures involved and the particular requirements for each type.
What is meant by Divorce?
The legal obligations and responsibilities of marriage are typically cancelled or rearranged as part of a divorce, which dissolves the bonds of matrimony between a married couple under the laws of the specific nation or state. However, in 1869, a draft of the Indian Divorce Act was introduced into the Indian legal system, and, depending on the couple’s culture, various rules and procedures apply for different divorce types in India.
Components of Divorce in India
The most important aspects associated with a divorce are listed below:
● Property Settlements
No matter whether a divorce petition has been filed, the Indian Divorce Act states that a married person has the right to occupy the property. However, both the wife and the husband are permitted to occupy the home until the court issues its judgement under the divorce laws in India property.
The right to maintenance is also granted to everyone who is financially dependent on the marriage, as stated in the Code of Criminal Procedure, 1973. And, included in this are the spouse, dependent children, and even any poor parents.
● Child Custody
In a mutually consenting divorce, the courts typically respect the parents’ choice; but, they are still obligated to consider what is in the child’s best interest. Also, the courts will assess each party’s capacity to raise the child if the divorce is contentious. This feature, however, might be related to the Mediation Bill 2021, which represents an effort to settle disputes without going to court. In the legal system, mediation is a type of ADR that can be applied to various legal disputes involving divorce, real estate, etc.
What are the multiple divorce types in India?
In the past, divorce cases in a country like India were extremely rare. But due to several issues, the divorce rate has been steadily rising over the past few years. However, the following sorts of divorce are handled expertly by Lex Solutions, a renowned law practice in Chandigarh:
● Mutual Consent Divorce
As the name implies, this occurs when both parties mutually decide to end their marriage. And, to petition for this type of divorce in India, a couple must meet specific requirements:
- Living Separately: Before filing for divorce, the couple had to have lived apart for at least a year.
- Agreement: To end the marriage, both spouses must consent amicably and file a joint petition with the court.
- Cooling-off Period: The court sets a six-month “cooling-off” period following the filing of the petition to provide the couple time to rethink. And the court grants the divorce if both parties continue to agree after the cooling-off period.
● Contested Divorce
Contested divorce occurs when one partner files for divorce but the other opposes the divorce. The requirements for a contested divorce are, however, governed by several rules for divorce in India. Furthermore, some crucial elements of a contested divorce include:
- Grounds for Divorce: The person requesting the divorce must present convincing evidence, such as cruelty, infidelity, desertion, mental illness, or conversion to a different religion.
- Legal Proceedings: A divorce petition is filed in the proper family court by the divorcing party. The Indian divorce law then mandates the court to give notice to the opposing party after which there are numerous stages of the proceedings, including counselling, mediation, and the presentation of evidence.
- Court’s Discretion: The court makes the final determination and weighs all relevant information and arguments before approving or rejecting a divorce.
● Divorce by Desertion
Divorce by desertion arises when one spouse abandons the other for an extended length of time without a good explanation. However, the prerequisites for such matrimonial disputes include:
- Desertion: The absent spouse must have abandoned the other without a valid reason or consent for at least two years.
- Intent: The abandoned spouse must demonstrate that they have no intention of returning or taking on new marital responsibilities.
- No Consent/Agreement: The petitioner must prove that there was no consent, agreement, or coercion used to induce the desertion.
● Divorce by Adultery
India considers adultery as a legitimate reason for divorce, and hence the India divorce law authentically regulates this factor. But, to file for divorce based on adultery, the following requirements must be met:
- Extramarital Relationship: The spouse requesting a divorce must present proof that the other spouse has sexual contact with another person not married to them.
- Valid Evidence: To substantiate the claim of adultery, the petitioner must offer strong evidence, such as photos, hotel bills, or eyewitness accounts.
- Non-condonation: The applicant must demonstrate that they did not approve of or pardon the adultery.
What is the Procedure for Filing a Divorce?
In the district court, the divorce process typically begins with filing a petition, followed by affidavits from both partners. However, the law firms in Chandigarh can help you with the following procedures related to a divorce by mutual consent:
- Joint filing of a divorce petition.
- Following this, the husband and wife must attend court to provide testimony.
- The court examines the petition and accompanying documents, makes an effort at reconciliation, and records the testimony.
- The court grants the pair a six-month “cooling off” period to reconsider their choice.
- The second motion shall be submitted within 18 months after the first motion.
- After the divorce decree has been granted, the divorce rules in India take into account the issues of child custody, alimony for the wife, and court costs.
Knowing the legal procedures and grounds for divorce will help you negotiate the challenging terrain whether you’re going through a mutual consent divorce or a contentious divorce. Also, keep in mind that getting a divorce is a major life decision, so being fully informed about the procedure is essential to moving through with assurance. For those couples who are at a crossroads in their marriage, it is essential to understand the various divorce types in India.
- How is divorce governed among different religions in India?
The Indian Divorce Act, of 1869 regulates divorce among Christians, the Hindu Marriage Act, of 1955 regulates divorce among Hindus, Buddhists, Sikhs, and Jains, the Dissolution of Muslim Marriages Act, of 1939 regulates divorce among Muslims, the Parsi Marriage and Divorce Act, 1936 regulates divorce among Parsis, and the Special Marriage Act, 1956 regulates marriages between members of different communities and civil unions.
- What documents are required to file a divorce?
Signing up for different divorce types in India mostly requires:
- Address proof of Husband and Wife
- Marriage Certificate and Photographs
- Income tax return for the recent two years.
- Information about the profession and current pay
- Information on the petitioner’s assets, including his or her properties
- What can a divorced wife ask for?
The wife has the right to request maintenance and financial support for herself and her children if the couple is divorced.
- What is the new divorce rule?
The waiting period might be shortened under the proposed law to six months, facilitating divorce without a drawn-out separation for many couples. Also, the new law would set a 20-week time limit for the entire divorce procedure.