The subject of divorce has always had a negative connotation attached to it in Indian society. That is not surprising as, since olden times, marriage has been seen through the lens of a holy union between man and wife. As such, no concept of marriage existed in India until the British came and enacted the Divorce Act of 1869, which also limited the divorce opportunity to only Christians.
There are basically two kinds of divorce petitions in India – contested and uncontested divorce. This blog talks about both types of divorce, their grounds, and everything else you need to know about the kinds of divorces.
According to Section 13 of the Hindu Marriage Act, contested divorces occur when one spouse wants to file for a divorce and the other objects. These types of divorce in Hindu law are the messier kind of divorce and can be filed either by the husband or wife.
When the couple unanimously files for a divorce together, it is called a divorce under mutual consent or uncontested divorce. As per Section 13B of the Hindu Marriage Act of 1955, either the husband or wife can file an uncontested divorce as long as they belong to either the Hindu, Sikh, Jain, or Buddhist community. However, divorce is not granted instantly, as the court orders a cooling-off period of 6 months before the final hearing so that no decision is taken hastily.
Grounds for Obtaining Divorce
There are a few grounds under which either the husband or wife can file for a divorce in any court of law. These are discussed below.
- Adultery – When either of the partners has had sexual relations with a person other than his or her spouse, it is seen as a valid ground for divorce.
- Cruelty – Has treated their spouse with cruelty. This includes both mental and physical abuse.
- Desertion – Has deserted or has been neglecting their partner for a period of two years or more before the petition has been presented in court
- Conversion – Has converted to a religion other than Hinduism
- Mental Disorder – Has been suffering from mental illness, arrested development, schizophrenia, or any other psychological disorder that makes them unusually aggressive or unable to function reasonably and requires medical care.
- Venereal Disease – Has been suffering from any kind of sexual and communicable disease (including Leprosy too).
- Non-resumption of cohabitation – Cohabitation has not resumed for a period of 1 year or more after filing for a judicial separation.
- Non-restitution of conjugal rights – Cohabitation has not been restored even after a decree has been passed previously or either partner has wilfully refused to consummate the marriage.
- Presumed Dead – The whereabouts of either spouse have been unknown for over 7 years and hence he/she has been presumed dead
Renouncement – Has renounced worldly life and affairs after entering a religious sect, cult, or order.
Special Provisions for Wif
There are a few provisions or grounds, especially for the wife in the procedure for divorce in India. These are mentioned below.
- In case the husband was already married or married again after the commencement of the marriage with the aggrieved party.
- In case the husband has engaged in bestiality, rape, or sodomy after their marriage.
- In case the husband has not complied with a previous court order regarding maintenance since separation and they have not cohabited for 1 year or more.
- In case the marriage took place before the wife was still underage.
Procedure For Mutual Consent Divorce
There are a few conditions before the mutual divorce process in India can start. These are:
- The couple has been married for at least 1 year
- The couple has been living separately for 1 year or more
- They are unable to live together as husband and wife
- They mutually agree that their marriage cannot be saved and separation is the best option
After these conditions are met, the following steps are to be followed.
- The divorce petition must be filed in the family court of the location they last lived as a couple
- This is followed by the first hearing, where the court listens to the petitions of both parties and records their statements
- The court adjourns for 6 months after which the second hearing happens
- If both parties confirm that they still want to divorce after the six-month period, the court examines all evidence and grants a divorce.
Procedure for Contested Divorce
The contested divorce procedure in India starts with either spouse filing a divorce based on any of the valid aforementioned grounds. Then, the process goes as follows:
- If the court is satisfied with the petition, it orders the opposing party to appear before it at a later date along with their lawyer.
- The court then suggests mediation. If that fails too, the case will continue.
- At a later fixed date, both parties are made to appear in front of the court. It records their final statements and cross-examines all presented evidence and witnesses.
- At a final hearing, the court will pass a divorce decree if all goes well. The order can also be appealed against by the aggrieved party within 3 months of the original decree.
Also Read:- How Effective Are India’s Criminal Laws?
Whether it is a mutual consent divorce or a contested one, there is no way it is not stressful for the persons going through a separation. On top of that is the hassle of courts and lawyers, who often delay processes. All this adds up to become a financial and emotional drain on the couple. That is why it is a good idea to invite law firms like Lex Solutions to take care of your divorce proceedings, as they are professional enough to not try to rip you off while handling everything competently.
As a final note, it is important to remember that sometimes, one or the other types of divorce are inevitable and that it is better to move on than to try living with someone with whom it is not working out. Sure, marriage is sacred when it is perfect, but no one deserves to live in the uncertainty that comes with a marriage that is being kept together by force.
1. Is the 6 months cooling-off period absolutely necessary for a mutual divorce?
No. While the provision for the 6-month break is there to prevent hasty decisions, several recent decisions have revoked it when the court and the couple are in agreement that they cannot live together.
2. Are there maintenance provisions under the Hindu Marriage Act?
Yes, there are maintenance provisions for both alimony and child support under the Hindu Marriage Act.
3. Is there a difference between what documents need to be submitted for different types of divorce in India?
Yes. There is a difference between the documents that need to be submitted for different types of divorce in India.
4.Which section of the Hindu Marriage Act mentions mutual divorce?
Section 13-B of the Hindu Marriage Act mentions mutual divorce.
5. Where is Lex Solutions based?
Lex Solutions is based in Chandigarh.