Guide To Divorce Laws In India: All About The Different Types Of Divorce

INTRODUCTION

Divorce means dissolution of a marriage or marital bond on the basis of the laws regulating the peoples’ rights and relationships in regard to fresh break up of a marriage under the personal laws governing such people. In relation to divorce it differs from one country to another specifically in India, there are distinctive personal laws regarding marriage and divorce. History has it that early Roman people especially in civilization were very flexible, especially when it came to issues of marriage and divorce. The same way the parties could sit down naked have cohabited as husband and wife by agreement without the formality of wedding or marriage rites, so could they by the same way and without the formality of wedding or marriage rites wash their hands off each other in marriage. It was seen that the concept of mutual divorce or divorce by mutual consent means that a legally wedded husband and wife being unable to live together anymore, can jointly file a mutual divorce petition in the honourable court without entering into any false allegation against the other party. Currently divorce is a very common in Indian society too where in the past, during the classical period, divorce was almost an uncommon thing and marriage was regarded as a lifelong bond. It is evident that India has a comparatively low divorce rate that is less than 1%, in other words, out of thousand marriages, only thirteen ends in divorce. Couple reporting lower rate of divorce, prevalent in India as opposed to the rest of the world is attributed to societal feeling and pressure towards the protection of marriage. Conception of marriage as a contract is one of the outcomes of liberty and equality produced by the ideals of the industrial revolution. Industrial revolution led to the notion that all organization and human relations factors are a product of the will and desire of the individuals and not their rank.

The rather strict division of the church and state is one of the major principles underlying the functioning of American society. While legal representatives of such a state might refer to current religious views as to what kind of laws should be adopted for this state, religion as such cannot and should not influence actual administration of these laws to the people. The laws promulgated in the United States of America are universal in a way that they are supposed to apply to anyone out there. The same, however, cannot be said for India. The Muslim Personal Law (Shariat) Application Act of 1937, regulates the Muslim’s legislation in India involving issues of marriage, divorce, inheritance, and other matters to do with personal law. The legislation that provides for Muslim marriages is the Dissolution of Muslim Marriages Act of 1939 and the divorce law for Hindus is provided in the Hindu Marriage Act of 1955. In the case of the litigation of divorce laws, it would be expected that since there are two systems of divorce, then there are two radically distinct sets of rules. However, the laws are not that different. Both cultures have a link with India and the system of divorce in the culture that governs the country today.

DIVORCE LAWS

As stated earlier, India has two types of personal laws governing the marriages and divorce. Two majorly, the Islamic and the Hindu personal laws help govern and adjudicate matters effectively without jeopardizing the religious sentiments of people. 

1.    ISLAMIC LAW:

The Muslim Personal Law (Shariat) Application Act of 1937 as a law subjects Muslims in India to Islamic personal laws. It is presumed that under different Islamic legal systems, there are several ways that one spouse can divorce the other. Since marriage is seen as contractual relation between husband and wife, then divorce or repudiation can dissolve only a contractual relationship for marriage; if the marriage contract is not valid, then either of the partners or the court must dissolve the marriage through annulling. The methods of terminating a marriage are: repudiation of the marriage contract, divorce by consent, divorce court, or divorce as per the law.

A.    Repudiation:

Out of all the forms of divorce acknowledged by Islam, the most familiar type is repudiation or talaq. Before a couple can be divorced by repudiation, the couple must allow two judges, one representing each spouse to try to solve the issues; if the issues cannot be solved, then repudiation may happen. Islam has given the right of repudiation, subject to certain conditions, to husbands. The repudiating husband must be above eighteen years of age and be of sound mind. Moreover, the husband should not be driven by passion, anger, or surprise. Notably, the husband does not need to be free of coercion or intoxication in order to pronounce, and talaq can be counted where it is said as threats, oaths, or in jest. Written or oral words that repudiate must be specific and unambiguous. There have to be words of divorce, or talaq. If the words are not explicit, then the husband must demonstrate how his words indicate an intent to divorce. It has been asserted that the wife’s absence during, or lack of notice of the divorce is not necessary.

B.    Divorce by Mutual Agreement:

This method is known as mubaraat. If the two decide to dissolve the marriage conclusively and mutually, then the marriage is severed and the wife is entitled to receive the original mahr.

C.    Divorce by the Court:

There are two methods a court can use to grant a divorce. The first is called lian and means “mutual oath swearing”. The second is called faskh and is a judicial rescission of the marriage contract.

2.    HINDU LAW:

The Hindu Marriage Act of 1955 ("HMA") is the law relevant to Hindu divorces. The HMA made two changes to the prior rule: It legalized only monogamous marriages and introduced the institution of divorce. It is also now possible for both wives and husbands to invoke the HMA; the HMA is gender blind. In 1976, the Central Government amended the HMA to its current state via the Marriage Laws (Amendment) Act. The amendments introduced the "breakdown principle" as a ground for divorce; couples could get divorced for the simple reason that the marriage was not working. The HMA, as amended, is divided into two sections: categorized as voidable marriages and circumstances that permit the dissolution of marriage. Divorce as a ground of dissolution of marriage among Hindus in India can be filed on the premise of fault or by mutual consent by the aggrieved spouses. ' The HMA provides a list of circumstances, each of which can serve as grounds for divorce. These grounds can be best categorized into: Some of these grounds include physical and mental abuse of the wife, the husband’s illness, his absence from home, the wife embracing a religion different from that of the husband, and mutual consent. One feature about this statute is that Indian courts do not entertain any application for divorce before the one-year mandatory waiting period, but there is one exception; the wait may be waived if the marriage was contracted under circumstances of hardship or depravity. It is probably this provision allows a chance of reconciliation by the couple that was married for less than a year and wants a divorce.

GROUNDS FOR DIVORCE

A.    Mistreatment: 

Hindus can seek divorce on the basis of cruelty which means that the respondent spouse has treated the petitioning spouse in a cruel manner. The mistreatment can be adultery or either mental or physical cruelty. Cruelty can occur where one party refuses to consummate with the other or alternatively continuously subjects the other to suffering or abandonment.

B.    Illness: 

This category concerns marriages which occur where the respondent spouse has some form of ailment. The mentioned diseases are of two categories, which include the mental diseases, and the physical diseases. The categories of mental illnesses include an unsound mind and mental disorder of such nature that it becomes unfit to live with the respondent for the petitioner. Instead, the spouse could be having leprosy or communicable venereal disease or a related condition that might disqualify him or her from the contract.

C.    Desertion or Criminal Behaviour:

As for the fault-based grounds for divorce, absence of one spouse for a certain period of time or imprisonment for a particular crime is sufficient grounds for divorce as far as the remaining spouse is concerned. where the ground of desertion has been invoked, the petitioner is entitled to divorce if the respondent spouse has deserted the petitioner for a period of not less than two years. As it pertains to the matter of desertion, it should be noted that the statute defines desertion to include not only physical abandonment, but also abandonment through neglect of the spouse. On the same note, divorce can be presented if the respondent disappeared and it is beyond reasonable doubt that he or she is dead by people that would have known the one in question for at least seven years.

D.    Religious Conversion or Renouncement:

In conformity with the high level of religiosity that characterizes the Indian culture, divorce is possible in this category under two conditions: (a) change of religion by either of the spouses from Hinduism; and (b) the adoption of the religious life, referred to as sannyasa, after the celebration of marriage.

E.    Mutual Consent:

According to the “breakdown principle” the couple can decide and be divorced on their own. The parties must claim that they had been living apart for a period of one year or more, they have been living separately without being able to do so together, they have also agreed that their marriage should be dissolved. Another peculiar aspect of this approach’s is that a court may not proceed before six months or after eighteen months after the petition has been filed. There is time limit for waiting to accommodate a time when the couple can resolve any issues they may have and withdraw the filing.

In the case of Amardeep Singh vs. Harveen Kaur [2017], the couple in question have been living apart since 2008. They came to an agreement in 2017 and sought a divorce by mutual consent. The court was prayed to dispense with the six months’ waiting period as prescribed under Section 13B(2) of the Hindu Marriage Act, 1955. In order to substantiate the request, they said that they had been staying separately for the last eight years and that there was no possibility of reconciliation between them. This is path breaking case in the area of divorce by mutual consent under Hindu Law. It was observed by the Supreme Court in this judgment “The cool off period or the waiting period of 6-18 months as stipulated in Section 13B (2) of the Hindu Marriage Act, 1955 is not always compulsory”. 

TYPES OF DIVORCE: 

BY MUTUAL CONSENT—

(1) This Act’s provisions state that a joint petition for divorce by decree of divorce shall be made to the district court by a valid marriage between husband and wife, whether such marriage was solemnised before or after the coming into force of the Hindu Marriage Laws (Amendment) Act, 1976 (68 of 1976), if they have lived apart for one year or more, do not want to live with each other and where their temperaments are not compatible.

(2) The second motion may be moved even if it is moved within six months after the presentation of the petition referred to in sub-section (1) and not later than eighteen months from that date provided no application has been made under this section within that period on the motion being taken back in any case; then on hearing both sides and examining such evidence, if any, as might be necessary, it should satisfy itself that there has been a valid marriage and that the allegations made in the complaint are true, pass a judgment declaring that marriage is void. 

When granting mutual consent divorce, the court is required to conduct a judicial inquiry into various aspects to ensure that the decision is not taken hastily. The dissolution of marriage by mutual consent should be based on a marriage that is otherwise valid according to the personal laws governing the parties involved.

The question of whether a marriage is valid, void, or voidable holds great significance in determining the appropriate relief to be granted. According to Section 14 of the Hindu Marriage Act, 1955, it is stated that the court cannot entertain any divorce petition seeking a decree of divorce unless at least one year has elapsed from the date of marriage solemnization. The underlying intention behind this provision by the legislature appears to be providing time to the concerned parties.

Mutual consent is the only legal basis for seeking divorce: parties have to live separate lives and prove that they have made all possible efforts in making their marriage work. Marriage is a significant institution in an individual's life, and hence before the dissolution of a marriage by mutual consent would happen, it ought to allow time for both parties to reflect on their decision to dissolve the marriage. The application under section 13B of the Act should not be accepted unless at the time of filing: there is enough period between first motion and second motion (about six months) and another one month waiting period after the second motion which allows them re-think their decision as feelings may arise later. Law is in favour of ensuring the preservation of marriage, various laws entail a period of unity before separation can be sought through a petition for the dissolution of the marital bond permanently and with mutual consent. Section 14 acts as a general provision that is applicable to all forms of divorce, stipulating a one-year period from the date of marriage solemnization. On the other hand, Section 13B of the Hindu Marriage Act, 1955 specifies a different criterion— a one-year period of "living separately" just before the presentation of the petition.

Living autonomously does not imply physical separation. It does not define a specific living space for the parties involved. A husband and wife can be under one roof but still considered autonomous individuals, not fulfilling marital duties or expectations towards each other with no longing or regret.

The option for both parties to mutually agree on the termination of their marriage should remain valid until the second petition is presented, which must occur within 18 months of the initial petition but after a period of 6 months. According to Section 13B, a minimum of six months is required after the first motion is initiated, allowing the parties to reconsider their decision during this specified timeframe. Therefore, after the first motion and the submission of the final petition for mutual separation, the parties are obligated to wait for six months before proceeding with the second motion. If, at that point, they have firmly decided that they cannot continue living together, the Court, after conducting any necessary inquiries, will grant a divorce decree, officially dissolving the marriage from the date of the decree. Both of the parties may withdraw his/her assent at any time earlier than the transient of the decree even after the running out of 18 months from the date of filing of opening petition. The long period of six to eighteen months is given in divorce by mutual consent as to give occasion and chance prospect to the parties to reflect on their moves and seek suggestions from their friends and own flesh and blood. The Court ought to be satisfied about the bona fides and concurrence of both the parties. If there is no consent at the time of probe, the Court gets no authority to pass the divorce decree. If the Court is held to have passed the decree solely based on initial petition, it negates the whole idea of mutuality. There can be no one-sided withdrawal of assent. It was held, that if the consent of the wife was acquired by fraud and wife was not prepared to give consent, there may possibly be unilateral withdrawal of consent10. The parties must be living separately for a period of at least one year and must resolve towards ending the marriage. The parties must not be performing their conjugal obligations; physical separation is not the only criteria to assess abandonment. It is the total denial of performing obligations of married state. In Smruti Pahariya v. Sanjay Pahariya, the Supreme Court held that the consent cannot be presumed by the nonattendance in the court of one spouse at the conclusion of 6 months nippy off period in mutual consent divorce petition. It also opined that Court cannot imagine consent of a party only because both the parties are signatories to the first motion under 13B of the Act. 

CONTESTED DIVORCE—

A Contested Divorce, or One-Sided Divorce, is when one spouse seeks to end the marriage, but the other spouse does not. Both parties do not mutually decide to separate and divorce each other. A contested divorce occurs when one spouse has justifiable reasons to separate and have the marriage dissolved. Both husband and wife will have individual attorneys represent them in a contested divorce action, since they are opposing each other in the courtroom.

Under Section 13 of the Hindu Marriage Act, 1955, a Contested Divorce Petition can be filed in India on the following grounds:

• Adultery: If either spouse indulges in sexual intercourse with a person other than his or her spouse.
• Cruelty: If either spouse subjects the other to cruelty.
• Desertion: If either spouse abandons the other without any reasonable cause and without any intention of returning.
• Conversion: If either spouse compels the other to adopt another religion.

LEGAL PROCEDURE:

Filing divorce petition: The petition has to be filed by spouse in civil court or family court of their local matrimonial jurisdiction stating the facts and reasons as to why the marriage should be dissolved. It has to bear the signature of the spouse filing the petition and in the case of mutual divorce it has to bear the seal of both the spouses. 

Service of Summon: In the event, the court has ruled on the petition, a notice is then forwarded to the other party to appear in the court. In case of mutual divorce both the parties have to come to the court after filing a petition. Court may attempt to make the two parties to stay and pause in their decision to separate and give them some time to reconsider but if the two are still determined to go separate ways, the court will proceed further. 

Response: The statements of both the parties are recorded and in cases of mutual divorce after the first motion has been passed there is a time of six months before passing the second motion. 

Trial: Afterwards, the court will take the matter and set out the issue. This is the most significant stage because parties offer proof and people to testify. At the end of the trial and after all the process of cross-examination both parties will present their final arguments to the judge. 

 Final Order: The court will make a final order or decision if it is so desired divorce will be pronounced. The party which has not been satisfied with decree given by the court in between the parties can file an appeal in the higher court within three months of the passing of the decree under section 28 of Hindu Marriage Act.

RIGHTS OF THE PARTIES: 

Wife’s right to husband’s property— In case of mutual divorce with regards to the property, if it is registered in the name of the husband, then as per the laws the wife has no rights over the property. As per the Registration Act 1908, the property is deemed to be owned by the person who is registered under the name of the property. As for the bank, it is the legal property of the individual who has acquired the loan in his or her name and it is the responsibility of the borrower to make the payments of the loan instalments. The husband cannot force the wife to vacate the house even if she has made no contribution towards the construction of the house and the only way she can be asked to leave the house is if she is legally divorced by a competent court of law. She has the right to remain in the house as long as their marriage is not dissolved by a competent authority. It is permissible for the wife to request for maintenance and other expenses she needs for herself and her children upon divorce; however, she cannot claim the property for herself in the divorce settlement.

For when it is a joint property, it is required that the wife covers evidence of her contributions to be able to own property under her husband’s name. This is where she can claim her rights and present the account statements to support her case. If the couple decides to buy a house, then the property will be owned jointly. Under the Hindu Succession Act of 1956, the woman has the right to live in the property as a co-owner until the time of divorce and the division of the divorce property. This has also been stated by a three-judge Bench of the Supreme court in the case of Satish Ahuja v. Sneha Ahuja (2020). In this case, the father-in-law of the women filed a case of injunction and ordered the women to vacate the house. He argued that the property did not belong to the son or his daughter-in-law. In this case, the Court ruled that the woman had a right to reside in the property regardless of the proportion that belonged to her husband.

Either the wife or the husband can start the process of dividing their property with the one who wants to keep it. This can be done before or even during the divorce process, and they are also liable to pay the portion based on the current market rates.

Stridhan— As stated by the Smritikars, these are those properties that have to be given to the woman at the time of marriage. Some of these might include jewelry, cash and any other property and the wife has a right to these property after a divorce. However, in cases where the husband has contributed towards buying these gifts, he has the right to reclaim them after the divorce. The property acquired by the women under the partition was not a Stridhan but the property owned by women as stated by the Allahabad High Court in the case of Debi Mangal Prasad Singh v. Mahadeo Prasad Singh. But following the passing of Hindu Succession Act of 1956, Section 14 of the Act provided that the joint property taken in partition is an absolute property or Stridhan. Absolute property belongs to the woman and as such she has the power of disposal over it which means that she can convey, transfer, assign, pledge, sell, let, exchange, mortgage or dispose of it in whatever way she wishes. In Bhagwandeen Doobey v. Maya Baee (1869), the Privy Council ruled that any property which is given to the wife by the males would not be considered as stridhan but would be referred to as the women’s estate. This has been set out in the case of Pratibha Rani v. Suraj Kumar and Another (1985) by the Supreme Court of India as to what constitutes Stridhan – Gifts exchanged before the nuptial fire. Wedding presents that are given to the couple. Items given to her by her mother-in-law or father-in-law as a token of love at the time of her marriage. Gifts given to the women by the moms, dads, and brothers of the women. In Smt. Rashmi Kumar v. Mahesh Kumar Bhada (1996), it was held by the Supreme Court of India that when a wife entrusts her husband or any other member of the family with her property and that person willfully misappropriated it or allows someone else to do so, he commits the offence of Criminal Breach of Trust. 

Husband’s rights— Divorce

The husband is entitled to file a petition for divorce with or without the consent of his wife. There are no differences in the causes of action for divorce for a man compared to a woman. Such are desertion, torture, cast conversion, adultery, disorder, mental disorder, repudiation and assumption of death and the like.

Alimony Or Maintenance

The right of a husband to claim Maintenance from his wife is governed by the Hindu Marriage Act, 1955. Section 24 of Hindu Marriage Act gives the right to the wife for Maintenance Pendente Lite and the expenses of the proceedings to the husband. Under the section 25, the husband has the right to obtain permanent alimony and maintenance. Under Section 24, the spouse who is a ‘deserving man’ and who has no separate income to support him and his needs and has no means for the proceeding can claim Maintenance from his wife if the wife is in a position to afford it. Section 25 permits the grant of permanent alimony and maintenance to the husband. It binds the wife to pay such a gross sum or monthly or periodical sum for the life of the husband or until he remarries, taking into consideration the wife’s income and property. The court can change the order if it was established that there is a change in circumstances. For instance, in a mutual consent divorce case, if the parties agree not to ask for Maintenance, the court may award Maintenance on the basis of facts and circumstances of the case.

Custody of the Child

The couple who are parting can decide for the child’s custody in mutual divorce, full or joint, and the judge usually permits. In a contested divorce, the husband has an equal right to the child custody, yet the wife was given privileges by the courts and has full control. Recently, the courts have been ordering the one who is in a better position to take care of the child to be given possession of the house.

It is worth mentioning that if the father is in a better position to take care of the child than the mother, the Court has the authority to grant the custody of the child to the father. This has been done by the courts in number of cases as provided below. When deciding who will have custody of the child, the primary consideration is the best interest of the child. Property

In a divorce, there are many issues that are likely to cause conflict after the couple has decided to part ways, one of them being property settlement. A woman who is in pursuit of a divorce does not have the right to acquire any share of the husband’s property. The title is said to belong to the one who is holding it at the moment. It is often the case that in the joyful period of the marriage, the husband transfers property to the name of the wife, it is advisable to purchase the property in your own name or at the very least, document all the contributions made in such a situation. However, if permanent alimony is granted to the wife, then she cannot claim the right of the property.

False criminal cases

In today’s world, especially in India, there is a tendency to lodge false police complaints against the husband for “Demand of Dowry” and “Domestic Violence”. However, there is no specific provision of the law in India to grant any sort of compensation to the husband and his family if the wife has lodged a false case and the husband along with his family is acquitted from the allegations made by the wife. According to the Crime Record Bureau in India, the conviction rate in such cases is very low. Thus, the husband and his family have to fight the criminal cases very keenly. Ensure that one gathers as many proofs that support their case as possibly can. In India today there is an act which helps the husband in such situations and this is the “Right to Information Act” where the interested party is able to get as much information as possible in order to use it in the heating of the case. Filing false criminal case of Dowry is also one of the grounds for divorce in India.

CONCLUSION 

As it stood before the statutory law on the dissolution, the customary Hindu Law provided for the following: marriage is a lifelong bond and can only be broken by death. In the following personal laws, the court was empowered to dissolve the marriage on the basis of the statute:All broken down is to allow the parties to re-organize themselves in terms of accessible options. Forcible perpetuation of matrimonial status does not serve the purpose and six months cooling period is also a precaution measure against making hasty decisions to cut the tie. The goal of six months. It is not meant to prolong the suffering of the parties or to prolong an aimless marriage. Despite the fact that the court should do everything possible to preserve the marriage, if there is no harmony. The prospect of reunion and available treatments, the court should not be powerless in this to provide the parties with a better course of action. alone is not crucial; attention should be paid to the topic, subject and purpose of the text.