What really is Divorce?

Divorce means the ending of marriage by a competent court, based on the grounds for divorce that a particular individual puts forward. It gets covered under the family law rules in India. It can be with the mutual consent of both of the parties involved or any one person in the couple seeking the divorce.

Laws governing Divorce in India

Due to the presence of various religious beliefs in India, the Indian Judiciary has executed laws independently for couples belonging to different religious faiths. The acts under which divorce is implemented are as follows:

  • The Hindu Marriage Act, 1955
  • The Parsi Marriage and Divorce Act, 1936
  • The dissolution of Muslim Marriage Act, 1939
  • The Special Marriage Act, 1956
  • The Foreign Marriage Act, 1969

What can be the grounds for divorce to file a petition?

Divorce can be obtained:

  • Divorce by Mutual Consent
  • Divorce without Mutual Consent/Contested Divorce

Divorce by Mutual Consent:

  • When the husband and wife both agree to a divorce
  • For the acceptance of the petition, however, the pair should be living separately for over a year or two years and able to prove that they cannot live together. It does not necessarily mean that the couple should live in a different location but only have to prove they are not living as a married couple.
  • Most of the time the duo agrees to such a divorce as it’s comparatively economical and not as traumatic as a non-mutual divorce.
  • Children’s custody, maintenance, and property rights are some of the matters that have to be mutually accepted.
  • There are three viewpoints concerning which a husband and wife have to reach an agreement.
  1. First one is maintenance issues or alimony. The support does not have any maximum or minimum limit.
  2. The second one is child custody. Child care can be shared or joint or exclusive depending upon the understanding of the spouses.
  3. The third one is property. The duo has to decide how the property will be distributed between both of them. The property can be both immovable and movable property.
  • The duration of mutual consent divorce ranges from 6 to 18 months, depending on the judgment of the court.

Divorce Without Mutual Consent/Contested Divorce:

In the case of a contested divorce, either of the parties involved can ask, but only on specific grounds for divorce. While filing the petition for the divorce, the couple has to state the reason behind the decision. There are various reasons declared by the law which can be indicated as a ground for divorce:

Adultery

Adultery means voluntary or consensual sexual intercourse between a married person and another, whether unmarried or married.

Adultery may be proved by:

  • Circumstantial evidence
  • Contracting venereal disease

Cruelty

Cruelty includes both physical and mental cruelty.
Some Instances of Cruelty are as follows–

  • false accusations of adultery or unchastely
  • dowry demand
  • refusal to have children or marital intercourse
  • impotency
  • drunkenness
  • the threat to commit suicide
  • false complaints by a wife to husband’s employer
  • incompatibility of character
  • unrecoverable marriage breakdown

The following reasons are not considered as cruelty-

  • normal wear & tear of married life
  • refusal by the wife to resign from her job
  • desertion per se
  • outbursts of temper

Desertion

Desertion is the rejection by one individual of all the obligations of marriage i.e. abandonment of one by the other spouse without any reasonable cause and the approval of the other.

The following five conditions must be present to constitute a desertion; they must co-exist to offer a ground for divorce:

  • the factum of separation
  • intention to desert
  • desertion without any reasonable cause
  • abandonment without the consent of another individual
  • legal period of two years must have run out before an appeal is presented

Conversion

A spouse can ask for a divorce if the other spouse converts to another religion.

Insanity/Mental Disorder

A husband/wife can request a divorce on the grounds of insanity if he/she is incapable of performing marital duties due to mental illness.

Communicable Disease/Leprosy/Venereal Disease

The other party can ask for a divorce if the spouse suffers from a contagious disease, such as syphilis, HIV/AIDS, gonorrhoea or an incurable form of leprosy.

Renunciation

A spouse can seek divorce if the other party has waived his/her married life and has opted for sannyasa.

Presumption of Death

A spouse can request for divorce if the other has not been heard of for at least seven years and therefore, presumed dead.

What documents are required to file for divorce?

Before filing the petition for the divorce, the following documents should be assembled:

  • the proof of address of husband
  • the evidence of address of wife
  • the marriage certificate
  • four passport size wedding photographs
  • evidence to prove the living arrangement of the spouses i.e. that they are living separately for more than a year or two
  • proof of the failed efforts of reconciliation, along with the grounds for divorce stated clearly
  • the income tax statements of the last 2-3 years
  • professional details and present pay
  • information about the family background
  • property and other assets details owned by the couple

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