What are the Important Aspect in Divorce? 4 Important Factors to Decide

Introduction

Divorce is defined as the separation of two human beings as well as the separation of other attached or connected cords with either one. Divorce has a huge impact on society, whether it is on the family, the surrounding families, or the economy.

We will briefly discuss the consequences of divorce, which are the most important aspect of any final settlement, whether mutual or contested. Divorce takes into account the following factors:

• Maintenance/Alimony
• Child Custody
• Property Division
• Separation from each other Society

Maintenance/Alimony is One of Important Aspect in Divorce to be decided?

In the context of divorce, the terms maintenance and alimony are synonymous. It is the financial support given to the spouse by the party, whether he or she is a husband or wife. The taboo that a husband is only responsible for his wife’s financial needs is no longer valid, and if the husband is not earning while the wife is, the onus is on the wife to care for the husband.

What are the Provisions Under Hindu Marriage Act, 1955

“Sections 24 and 25 of the Hindu Marriage Act of 1955 allow the judge to order maintenance for a party who does not have an independent income sufficient for his or her support and necessary expenses. This is a gender-neutral provision that allows either the wife or husband to seek maintenance. The applicant must not have independent income that is sufficient for her or his support during the pendency of the lis.”

The payment structure is irrelevant here; what matters is the financial support. It could be a one-time lump sum payment or periodic payments, and it could be permanent or temporary.

Hon’ble Supreme Court of India in the matter of “Badshah v. Urmila Badshah Godse and Anr. (2013)”, explained the justification for granting maintenance by stating that “maintenance is provided with the goal of strengthening the poor and attaining social justice, or individual equality and dignity. It encapsulates societal ideals.”  The right to demand maintenance is statutory in India, and it cannot be taken away by an agreement to the contrary.

Maintenance Pendente Lite:  Maintenance may be granted during the course of the proceedings or after the proceedings are completed (maintenance final), which is permanent maintenance. Wives, children, and parents all have the right to seek maintenance. Under specific personal laws, even husbands (who are unable to support themselves) are entitled to maintenance.

Hon’ble Delhi High Court in the matter of “Kusum Sharma v. Mahinder Kumar Sharma (2020)” clarifies and stated in the Para No 09 of the Judgement that maintenance is not only a constitutional right but also an element of universal human rights. The purpose of paying maintenance is twofold, 

1. To prevent vagrancy caused by strained husband-wife relationships, and

2. To ensure that the poor litigating spouse is not crippled due to a lack of funds to defend or prosecute the case.

What are the Provision under Criminal Procedure Code 1973?

Aside from personal law, either party in a divorce case of any religion can seek maintenance under Section 125 of the CrPC of 1973. An order can be issued under this section directing the husband to provide financial assistance to his parents, wife, or legitimate or illegitimate children.

Hon’ble Supreme Court in the matter of “Bhuwan Mohan Singh v. Meena”-AIR 2014 SC 2875, held that any delay in adjudication of maintenance cases by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual.

Pare 3 of the aforesaid Judgement states that

“Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short ―the Code‖) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else”

Husband cannot run away from his responsibility with excuse of not earning. In the aforesaid judgement in continuation to above para the Hon’ble Apex Court clarified that

“In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labor, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds”

Who Gets Child’s Custody After a Divorce Awarded?

Child custody is one of the most sensitive divorce cases that must be handled with great care because children are the ones who suffer the most.

Hon’ble Supreme Court in the matter of “Vikram Vir Vohra v. Shalini Bhalla”-(2010) 4 SCC 409, held that welfare of child is the paramount importance in matters relating to child custody and may have primacy even over statutory provisions. Child custody being a very sensitive issue, custody orders are always considered, as interlocutory orders capable of being modified keeping in mind needs of the child.

The welfare of the child is of paramount importance in matters relating to child custody and this Court has held that welfare of the child may have a primacy even over statutory provisions

The welfare of the child is of paramount importance in child custody matters, and this Court has held that the welfare of the child may take precedence even over statutory provisions.

What are the Deciding Factors Child Custody? Who will get the Custody?

Before granting custody to either party, certain factors such as the welfare of the children, financial situation, safe environment, and education are considered. The following are the different types of custody:

Physical Custody

The child will live with one of the elders, and the alternate parent will visit and meet the child. This type of custody ensures that the child grows up in a safe and healthy environment.

Joint Custody

Instead of living with just one parent, the child will live with both. The time limit is set by the parties or the Court. It allows the child to maintain contact with all of his or her elders.

Legal Custody

If a parent has legal custody, it means that he or she has the authority to request a call for his or her children. Legal custody is generally granted to each of the oldsters, unless the court believes that there will be conflict between the oldsters and that they will never trust one another.

Third-Party Custody

 If neither the father nor the mother are suitable guardians for the child, the court will appoint a third party as guardian.

Property Division

In general, when a divorce occurs, the married person has no rights to the husband’s property under current law. Section 27 of the Hindu Marriage Act empowers the court to issue an order pertaining to property jointly owned by the husband and married person/wife. The law, however, is silent on the disposition of separate property. However, through the Marriage Law (Amendment) Bill 2013, the government attempted to change the situation by giving married people/wives a half share in their husband’s property; however, the bill remains unfinished.

All of the husband’s and partner’s property is considered “marital property,” which means that even property brought into the wedding by one person becomes married property, which will be divided during a divorce. However, the court should not award each mate one-half of the property. If one spouse owned the house prior to the wedding and the other spouse did not contribute to it (such as making payments or repairs), the court may rule that the house should not be divided between the spouses.

In cases where the property has been brought along or used by both spouses, the married person will claim a portion of the share. It has been discovered that Courts have additionally, in order to safeguard the interests of the married person/wife, have given claim over her husband’s property whether or not it was brought before or after the wedding.

If the property is “stridhan” or “mehr,” the husband is obligated to come an equivalent portion when asked by the spouse, because she is the sole owner of such property.

When making this decision, the court may take into account a variety of factors, including:

• The contribution of each spouse to the property.
• The conduct of the parties related to the property (for example, has one spouse destroyed or wasted property).
• Whether one spouse got the property before the marriage or by inheritance or gift.
• Whether the spouse who is getting custody of the children should stay in the marital home.
• The economic circumstances of each spouse at the time of the divorce.
• The earnings or earnings ability of each of the parties

It is also the party’s responsibility to demonstrate whether the property is joint, familial, or purchased solely with his or her own money. When dividing the property, any type of contribution from either party is taken into account. For example, in accordance with the CEDAW ruling, the Hon’ble Supreme Court discovered that even if the married person has not contributed financially, she still provides her time and energy as a housewife and thus is also entitled to a share within the property.

What is the Right of Children in Property of Parents after Divorce?

In the event of a divorce, the children retain ownership of their property. In such cases, one’s faith’s traditional succession laws apply. That the children have a right to the ancestral property; however, just as with a self-acquired property, if the father dies intestate, the children have the primary right to it because he has a “Category 1” heir. Of course, if the property was acquired by the father himself, he can give it to whomever he wants throughout his life via a written will.

Hon’ble Madras High Court in the matter of “Kanagavalli V Saroja”– 2001 (3) CTC 513. An excerpt from it would run thus:

“Para – 7. Section 16 of the Hindu Marriage Act clearly lays down that notwithstanding that a marriage is null and void under Section 11 and where a decree of nullity has been granted in respect of a voidable marriage, children who are born, who would otherwise have been legitimate children. What follows therefrom is that such children will be entitled to inherit their father’s property. In the decision reported in” 

Hon’ble the Supreme Court in the matter of “S.P.S.Balasubramanyam V. Suruttayan-AIR 1992 SC 756 held that –

“the circumstances of evidence in that case did not destroy the presumption that the parties therein lived as man and wife under the same roof. In this case also, there is undeniable evidence that Natarajan and the first appellant had lived as man and wife under the same roof. Therefore, the children born to them are not illegitimate and the provisions of Section 16 of the Hindu Marriage Act will be applicable to them”

Major Drawback-Separation from each other Society

Divorce and separation can be emotionally draining for both individuals and their families, especially if children are involved. It can elicit a wide range of emotions, including sadness, grief, anger, and guilt. Individuals may feel isolated from their social network following a divorce and may struggle to form new relationships. Divorce can have a negative impact on both individuals and families’ financial stability, especially if one spouse was financially dependent on the other.

Conclusion

Divorce can have a significant impact on families, posing a variety of emotional, financial, and practical challenges. One of the most difficult aspects of divorce for families is the emotional impact it can have on children. Following a divorce, children may experience a variety of emotions, including sadness, anger, guilt, and confusion. They may also experience feelings of loss because they may no longer see one of their parents as frequently as they did prior to the divorce.

Divorce can also have financial consequences for Indian families. The cost of the divorce itself can be financially burdensome, and the division of assets and debt after the divorce can also be a source of financial strain. Practical considerations can also be difficult for Indian families after a divorce. Children’s care and custody arrangements, for example, may need to be made, and families may need to adjust to living in separate households.

Overall, divorce can be a difficult and stressful experience for Indian families, and it is critical that families seek support and assistance in navigating the challenges that may arise.

Disclaimer

The views expressed in the blogs are purely the authors’ own, and they are not intended to offend anyone or to be prejudicial toward or against any individual, group of individuals, society, sex, gender, race, creed, nation, or religion, or any other term that is even remotely and closely connected. Legal-Varta is a platform for disseminating knowledge so that everyone can comprehend the legal system better. In order to avoid any misrepresentation and since it is even not advisable to do so, only content that is directly related to the Law and Statute is included in the articles. If any misrepresentation is discovered, however, we are willing to amend it because it is only for everyone’s advantage.