What is the Process of Divorce & 8 Grounds for Divorce?

“Law on Divorce in India”

Before delving into the law of divorce, we must first define divorce. So, in order to understand further, let us first examine the institution of marriage.

Marriage

It is legally and socially sanctioned union, usually between a man and a woman, that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners and accords status to their offspring (if any).

Also Read : What is Patent Act in India ? 

Divorce

General Definition:

Cessation of the relationship of a couple considering “Husband & Wife” post marriage through a legal divorce process to file a petition in a court of law. Once either party or jointly seeks the cessation to the social institution of Marriage file the petition and in consonance to same the Hon’ble Court passes a divorce decree, which ends the matrimonial alliance terminating the obligation implied being married couple.

Legal Definition:

Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party. (Ref: Section 13 of The Hindu Marriage Act, 1955)

How Different Laws define Divorce?

Under the umbrella of Indian legal framework, law carries different procedure for people following different Indian religions. The law respects all religions and accordingly defined the law to obtain the divorce such as

• Hindu Law
• Parsi Law
• Christian Law
• Muslim Law
• Special Marriage Act, 1954

The religions such as Sikh, Jain & Buddhist are covered by Hindu Law or may say under Hindu Marriage Act, 1955.

What is Procedure of divorce in india under Hindu law?

Under Hindu Law, broadly we can obtain divorce in two streams only i.e. Contested Divorce and Mutual Divorce as given below -:

Contested Divorce

It is when either party seek Divorce or cessation of Marriage on certain ground, which is forbidden by the law, and Divorce may be decreed if either party performs such act. Section 13 of the Hindu Marriage Act, 1955 provides the guidelines with grounds for filing a contested divorce, some of which are:

• Cruelty
• Conversion of religion,
• Unsound mind,
• Communicable disease or
• Either spouse is unheard of more than seven-year.

Mutual divorce 

On the other side, Mutual divorce can be obtained when both the parties are assured that the marriage is not repairable and by no mean either by mediation or other counselling support the marriage can be continued.  The parties to a marriage can seek mutual divorce on the ground that that they have been living separately for a period of one year or more, and that they have not been able to live together and have. 

The husband and wife have to predetermine the issues relating to alimony and child custody if any. There are only two requirements for filing a mutual divorce, one is mutual consent and the other is that they have to live separately for at least one year. 

What are the Grounds for Contested Divorce?

Section 13 of the Hindu Marriage Act, 1955 defines the grounds which provides the clarity for contested divorce

1. Adultery
2. Cruelty- Willful act that can cause “Physical Health” such as danger to body, limb, life or to “Mental health”. It can also include causing pain, abusing, torturing mentally or physically.
3. Desertion- When any of spouse willfully abandons another without any intention of coming back is known as Desertion. Desertion is considered, if it is more than two years could be a valid ground for divorce.
4. Religion Conversion- Especially in Hindu marriage, if either of the spouses ceases to be a Hindu then it can be considered as a ground for divorce.
5. Mental Disorder- Mental disorder includes unsoundness of mind, mental illness, or such mental disorder, which makes the person abnormally aggressive.
6. Communicable Diseases and Leprosy- Leprosy is a contagious and chronic disease that causes lesions on skins and nerve damage.
7. Spouse not heard of- If either of a spouse is not heard of or abandoned for more than seven years.
8. Renunciation of the world- Under the Hindu Law, the “Renunciation of the world” is a ground for divorce, if either of the spouses has renounced the world and has entered a holy sect.

What is Procedure of divorce in india under Muslim Law

Marriage is social institution and follows the ritual, which are driven, by its culture and religion. In Muslim religion, the law is derived from the guidelines declared by the Prophet. The Prophet has given the mandates where the divorce have been permitted by law however considered the worst and considered as evil. It must be avoided as far as possible.

But in some occasions when this evil becomes a necessity,  where it is impossible for the parties to carry the marriage on their union with mutual affection and love then it is better to allow them to get separated rather compel them to live together in an atmosphere of hatred and disaffection. Broadly there are two processes to seek a divorce under the Muslim Law in India.

Judicial Process 

The Dissolution of Muslim Marriages Act of 1939 establishes the framework within which a Muslim can obtain divorce. Section 2 of the aforementioned Act specifies the following grounds on which Muslim women in India can seek divorce:

• The husband failed to provide maintenance for at least two years
• The husband has been sentenced to imprisonment for at least seven years
• The husband failed to comply with his marital obligations for at least three years without any reasonable cause
• The whereabouts of the husband have not been known for at least four years
• The husband was impotent at the time of marriage or suffering venereal diseases or have been of unsound mind for at least two years
• The husband treated his wife with cruelty or was married before the age of fifteen

Extra-Judicial Process

The Extra Judicial Process is where either the one may go for Divorce through its shrines and further may obtain the Divorce

Note

Talaq-e-Biddat, or triple talaq, is no longer a valid form of divorce, and it is considered void and illegal under Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. Section 2(c) of the same act states that talaq under this act is instantaneous talaq-e-biddat or a similar form of talaq. As a result, triple talaq, whether oral, written, or electronic, is an illegal, cognizable, and non-bailable offence under this act.

Landmark Judgment passed by The Hon’ble Supreme Court in “Sayara Bano Vs UOI”.

The petition for a ban on the practise of Triple Talaq was heard by a Constitution bench comprised of five judges from various religions: Justice Kurian Joseph, a Catholic, Justice UU Lalit, a Hindu, and Justice RF Nariman, a Parsi, Chief Justice Khehar, a Sikh, and Justice Abdul Nazeer, a Muslim. By a 3:2 vote, this bench declared Triple Talaq or Talaq-e Biddat unconstitutional on August 22, 2017. The majority judgement was delivered by Justices Kurian, Lalit, and Nariman, while Chief Justice Khehar and Justice Nazeer dissented.

Chief Justice Khehar And Justice Abdul Nazeer [Minority Judgment- written By Chief Justice Khehar]

The minority bench observed that:

“we are satisfied, that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘Talaq-e-Biddat’. We hope and expect that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States.

When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind“.

What is Procedure of divorce in india for a Christian?

The Christian Religion is covered under Indian Divorce Act, 1869 where Under Section 10A of the Indian Divorce Act, 1869, there are two ways to file a Christian  Divorce in India.

Contested Divorce

Either the husband or wife on the following grounds can file a petition before the District Court, 

• Adultery
• ceased to be Christian 
• unsound mind for a continuous period of not less than two years 
• suffering from a virulent and incurable form of leprosy for least two years
• not been heard of as being alive for a period of seven years or more 
• willfully refusing to consummate the marriage
• failed to comply with a decree for restitution of conjugal rights for a period of two years or more
• deserted for at least two years
• Cruelty or husband is guilty of rape, sodomy or bestiality.

Mutual Divorce

If the parties agree that they have not been able to live peacefully together and have been living separately for at least two years, they can file a petition for dissolution of marriage with the district court.

What is Procedure of divorce in india under the Parsi Law?

The Parsi Marriage and Divorce Act of 1936 applies to the Parsi religion. The Parsi Marriage and Divorce Act of 1936 specifies the grounds for annulment, dissolution, or divorce. In India, Parsis can only file for divorce in Special Courts established under Sections 19 and 20 of the Parsi Marriage and Divorce Act, 1936. These courts are presided over by delegates who are Parsi, and the divorce must be registered at the registrar’s office.

• Section 30- If there are such circumstances arising out of natural causes making it impossible to consummate the marriage, either party can obtain nullity of marriage.
• Section 31- If either of the spouses hasn’t heard of his/her husband/wife for more than seven years from persons who would have naturally known of him/her, then the marriage can be dissolved.
• Section 32- This Section lays down the following nine grounds on which a person can sue for divorce.
  • The other party willfully refuses to consummate the marriage within one year of ceremony.
  • If the person at the time of marriage was unaware that another party was of unsound mind, then the divorce can be instituted provided it is filed within three years from the date of marriage.
  • If the wife at the time of marriage was pregnant by another person and the husband didn’t know, then the divorce can be obtained within two years of marriage provided that there has been no marital intercourse.
  • If either of the spouses has been treated with cruelty, forced to prostitution, has been willfully hurt or another spouse has committed bigamy, rape, unnatural acts, adultery or is infected with venereal disease, then the divorce can be filed within two years.
  • If the other party is undergoing imprisonment for more than seven years and has already served one year of the sentenced punishment then the divorce can be filed.
  • If either of the spouses has deserted (i.e. willfully left with no intention of coming back and such act is not initiated by the other spouse) the other spouse for more than two years or has given up his religion.
  • Section 32B – This section provides for divorce by mutual consent provided that the consent has not been obtained through force or fraud.

Important Aspects in Divorce

Cooling-Off Period of 6 Months

The purpose of the cooling-off period is to give both parties time to reconsider their decision. It was also the intention of the legislator to give the parties pause if the divorce could be avoided. However, the Supreme Court has ruled that the cooling period should be waived in cases where the parties have mutually agreed to divorce. To quote, the Court observed, “The waiting period will only prolong their agony, and application for waiver of the waiting period can be filed in court within a week of their first motion for separation”. 

Irretrievable Breakdown of Marriage

It simply means that when a couple is unable to live happily and comfortably together and the relationship has deteriorated to the point where it is impossible to repair the marriage, the marriage has irretrievably broken down.

Hon’ble Supreme Court has observed, “Divorce cannot be granted just on the grounds of irretrievable breakdown of the marriage if the party seeking divorce on this ground is himself or herself at fault. It can be granted in those cases where both the parties have leveled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together.”

It is different from mutual consent divorce, as it does not depend on the volition of parties but is examined by the court whether the marriage can be saved or not based on facts and evidence. 

how long does it take to divorce in india?

The time it takes to get a divorce in India varies depending on the circumstances of the case. Some divorces can be finalised in a matter of months, while others can take years. The complexity of the case, the willingness of the parties to cooperate, and the availability of the courts are all factors that can affect the duration of the divorce process in India. There are broad stages what are involved in Divorce as shared below:

1. Negotiation: Parties may try to reach an agreement on issues such as property division, child custody, and spousal support through negotiation. This can be done with the help of lawyers, mediators, or through a divorce process known as “collaborative divorce.”

2. Mediation: Mediation is a form of alternative dispute resolution in which a neutral third party helps the parties reach an agreement. Mediation can be faster and less expensive than going to court.

3. Collaborative divorce: Collaborative divorce is a divorce process in which the parties and their lawyers work together to reach an agreement without going to court.

4. Litigation: If the parties are unable to reach an agreement through negotiation or mediation, they may need to go to court to have a judge make decisions for them. This is known as litigation.

Conclusion

Divorce can be an extremely emotional and stressful experience for both parties. Ending a marriage can be a difficult divorce process, especially if there are children, shared assets, and emotions involved. Divorce can be a difficult decision, especially if one or both parties are unsure whether they want to end the marriage. Separating shared assets and responsibilities, as well as potentially dealing with issues such as child custody and support, can be emotionally draining.

People going through divorce frequently experience a range of emotions, including sadness, anger, fear, and grief. Individuals going through divorce must take care of their emotional well-being and seek support, if needed.

Disclaimer

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