The Indian Divorce Act and Laws

Laws and act related to Divorce and their Classification

There are different divorce laws of different religions in India and  all the religions having different divorce laws  which are used among themselves, also have separate laws for inter-caste or inter- religion marriages .

Laws and act for divorce in India for all the different religions are mentioned below:

  1. Hindu (including Sikhs, Jain and Buddhist): Hindu marriage act, 1955
  2. Christians: India Divorce act, 1869
  3. Parsis: the Parsi marriage and divorce act, 1936
  4. Muslims: Dissolution of Muslims marriages act, 1939
  5. Inter- caste or inter-religion: Special Marriage act, 1954.

The India divorce act, Special marriage act, Hindu marriage act, Muslims marriage act, Parsi marriage and divorce act provide annulment of the marriages Since its very inception, on grounds such as non fulfillment of mandatory conditions. The India divorce act requires confirmation from the High Court to come into effect. Grounds on the  basis of which divorces occur in India under the  Hindu marriage act, 1955 there are mainly four different types of grounds that are: Adultery, Desertion, Cruelty, Impotency, Chronic Diseases.

 

Disputed Divorce under Hindu marriage act, 1955:

Divorce -Whether before or after the commencement of this act, any marriage solemnized whether the petition is presented by husband or wife, be dissolved by a decree of divorce on the ground that other party

Grounds on which the decree of Divorce Given:

16 [(I) has, after the solemnization of the marriage, had voluntary sexual intercourse with the other person  than his or her spouse; or]

16 [(Ia) has,  after the solemnization of marriage, treated his or her spouse with cruelty; or]

16 [(Ib) has, after the solemnization of marriage, has deserted the petitioner for the continuous period of not less than two years immediately preceding the presentation of petitioner; or]

(II)has ceased to be Hindu by conversion to another religion; or]

17[(III)has been suffering continuously from mental disorder of such a kind to such extent that petitioner can’t be able to live with the respondent or has been incurably of unsound mind,In the Clause the expression “mental disorder” mental illness, arrested or  incomplete developement of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;The expression ‘’psychopathic Disorder’’ means a persistent disorder or disability of mind(whether or not including sub-normality of intelligence) which results abnormally reaction aggressive or seriously irresponsible conduct by the other party  or whether or not its requires or is suspectible to medical treatment; or]

(iv) Has 18[***] been suffering from a virulent and incurable form of leprosy or suffering form a communicable disease in vulnerable form

(v) Has left the world by entering into religious order;or

(vi) Has not been heard by those people who would naturally heard of it as being alive for a period of seven years or more .

19[***]20, Explanation-In this subsection the expression “desertion” means  without the consent or against the wish of other party desertion of the petitioner by other party to the marriage without reasonable cause  desertion simple means the act of giving something up, and also includes an willful neglect of the petitioner by the another party to the marriage, shall be constructed accordingly its grammatical variation and cognate expressions.

Divorce by Mutual consent Under Hindu Marriage act, 1955:

Seeking a divorce is a long drawn out legal affair in India, where minimum prosecution period is six months.If couple resolves the issue by mutual consent the time and money can be considerably shortened in this type of case estranged spouses can mutually agree for a settlement and file for a “no fault divorce” under section 13B of Hindu Marriage act 1955.All marriages entitled to make use of the provision of divorce by mutual consent which are solemenized before or after the Marriage Laws(Amendment) Act 1976,However, for filling this ground, it is necessary for the Husband and Wife to lived separately for at least a year.

 

Section 13B of Hindu marriage act 1955 (divorce my mutual consent) says that:

  • Subject to the provision of this Act a petition for dissolution of marriage by a decree of divorce should presented to the district court by both the parties to a marriage together,whether such marriage solemnized before or after the Marriage Laws(ammendment) Act, 1976, on the ground that they have been living separately from a year and in future they were not be living together and ready to dissolve their marriage by their mutual consent.
  • On the motion of both the parties made earlier than six months after the date of presentation of the petition referred to sub section(1) and not later than 18 months after the said date, in the mean time if the petition is not withdrawn, The Court shall, on being satisfied, as he thinks fit after making enquiry and listening to the parties, that the averments in the petitions are true and marriage has been solemnized, Can pass a decree of divorce which means that the marriage has been dissolve from the date of the decree of divorce.

 

 

 

Procedure to file a divorce:

  • First motion of petition by mutual consent divorce refers to the procedure for seeking a divorce by a mutual consent is initiated by filing a petition which is followed by affidavits from both the partners, in the district court.
  • Above procedure contains a joint statement by both the partners that because of their irreconcibale differences they can’t stay longer together and should be granted a divorce by the court.
  • After six months couple has to re-appear in the front of court after filing a second motion petition for mutual consent divorce.
  • A gap of six months is given between the two motions, so that the couple had adequate time to reconsider their decision of dissolving the marriage.
  • After hearing both the husband and wife if the jude is satisfied that all the necessary grounds are filling the requirements and meeting the needs of divorce, the couple grants a mutual divorce decree.
  • Custody of child, alimony to the wife, return of dowry items or “streedhan” and litigation expenses are some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent.
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