The Indian Divorce Act 1869 – An Overview

The Indian Divorce Act
Criminal Matters » The Indian Divorce Act 1869 – An Overview

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Divorce is an outcome not many people think of when getting married but sometimes the situation changes and the couple or one of the spouses can request a divorce. In India, all divorces are ruled by the Divorce Act, of 1869. The act itself is quite massive with specifications for different religions in India. A short overview of the act is as below.

The Indian Divorce Act 1869

The Indian Divorce Act was created and became a part of the official legal system in the year 1869. The act states the grounds on which a divorce can be granted to two married people living in India. The divorce act was designed in view of the different religious views and sentiments regarding marriage and divorce. There are also separate acts targeting one specific group of people such as the Hindu Marriage Act of 1955, Parsis by the Parsi Marriage and Divorce Act, of 1936, etc.

The Divorce Act goes on to state the different types of divorce petitions and how certain elements of divorce such as separation, alimony, and custody of the adopted child will be decided. Any property bought together when married will also be divided according to the clauses in the act. This is an extensive act with many different individual parts and regular updates. A more condensed version of it has been described below.

Also Read : The Grounds For Divorce Under Christian Law In India

Types of Divorce Petitions

There are three types of divorce and three types of grounds for divorce in India. A short overview of all three types of divorces in India.

Divorce with mutual consent: Per the name, the first type of divorce is where both parties agree together to separate from the marriage. Mutual divorce is not granted immediately upon approaching a lawyer. Section 10A of the Divorce Act, 1869 requires the couple to have been living separately for two years. Here arises confusion regarding divorce with mutual consent. Some think that after the duration of two years, there will be an automatic divorce. There is no such thing as an automatic divorce after 2 years in India. Couples who can provide proof for the separation period can then approach the courts for a mutual divorce. The couple must agree on the following matters before getting divorced.

  • Custody of children, if there are any. The custody could be shared, joint or exclusively with one parent only.
  • Division of property that also includes bank accounts held by both people. The division must not necessarily be fair and mutually agreed upon to protect the rights of women.
  • Alimony or maintenance amount. There is no limit, upper or lower, for the alimony amount.

Dissolution of marriage (Divorce with no mutual consent): Section 10 of Indian divorce act also states that the dissolution of a marriage is equal to a divorce as discussed here. As opposed to the previous form of divorce where there was mutual consent of both parties, in the dissolution of marriage, there is no mutual consent. The petition to get the marriage dissolved can be filed by either the husband or wife. To get a divorce through dissolution, there are certain conditions that must be fulfilled.

Also Read : Common Joint Property Disputes And How To Resolve Them?

Adultery: If any partner can maintain physical relations with a third person, it is ground to get the marriage dissolved. Prior to new updates to the divorce act in 2022, divorce due to adultery was a criminal offence but was decriminalized.

Mental Disorders: If either the husband or wife suffers from any sort of disorder of the mind and is mentally unsound, a divorce can be granted. There must, importantly, be proof of the said disorder and that this has led to them not fulfilling their marital duties effectively.

Desertion: If a spouse can provide sufficient proof that their partner has deserted them for no known reason, the court will grant a divorce. The said dissertation should have been done for at least two years per Hindu law but Christian law has no such minimum duration requirement.

Cruelty: If there is proof of cruelty in terms of physical and mental, the abused partner will be given a divorce.

Presumption of Death: If for a period of seven years, one of the partners has not maintained communication or contact, a dissolution of marriage case can be filed. The court requires proof that if the said spouse were to be alive, there would have been communication.

Infectious Diseases: If a partner can provide proof that their spouse has contracted an infectious disease like HIV AIDS, it is grounds to get the marriage dissolved.

Nullifying marriage: While dissolving a marriage involves getting a divorce without mutual consent, the partners will have a record of being previously married. In contrast, when the marriage is nullified, it would lead to a termination of the marriage. There will be marriage or records of it after the court grants it. In such cases, there will be alimony or sharing of property like in the previous cases. However, there must be certain conditions fulfilled before a nullified marriage can be awarded.

  • If either one of the spouses was already married at the time of the marriage.
  • If one of the spouses was not of legal age to get married and the said marriage was held without the consent of the parents of the underage spouse.
  • If the marriage took place by force.
  • If one of the spouses was mentally incompetent.
  • If the spouse of the aggrieved party was drunk or inebriated throughout the marriage.
  • If a prison sentence has been given to the spouse for any reason, the marriage will be nullified.

Separation: Judicial separation, as mentioned above, can be obtained through a court order. During the said separation, the couple will still be married but cannot re-marry other people. Judicial separation is usually granted on the grounds of cruelty or adultery or dissertation for over two years. Either partner can file for judicial separation if all conditions for it have been satisfied along with legal and formal documents.

Alimony: If one of the spouses has been economically dependent on the other for the entirety of the marriage, during divorce, there can be alimony demanded. Alimony is a maintenance amount equal to what is necessary to maintain the same standard of living. Alimony can be given to not just the spouse but also children and parents. The amount of alimony will depend on the health of the spouse, who has custody of the children, the age of the alimony recipient, and the economic status of the alimony payer.

Custody of children: The custody of children is decided by the court after considering the parent’s decision. The court will pay attention to the best interests of the child. If the divorce is contested, the situation becomes hard. In such a case, economic status, employment status parental capabilities are considered.

Settlement of property: During a marriage, any assets that are bought together and used together will be divided during a divorce. All the divorce lawyer in Delhi NCR will ensure division and settlement of property is done properly and that no rights are violated. Generally, the spouse who is doing all of the childcare is given the property.

Divorce is hard and there is a lot of information to coordinate and ensure everyone gets what they should. At Lex Solutions, there are some of the best divorce lawyer in Delhi. With years of experience in the bag, no matter the situation, divorce will be granted by the team at Lex Solutions.

According to estimates, 65% of people living in urban areas around the world are tenants. This is also true in India due to the sky-high prices of real estate in the major cities and the large population of migrant workers who live there. Nevertheless, living as a renter can be a peaceful arrangement, but occasionally there are situations where one can run into rental problems and other connected issues, such as receiving an unauthorized eviction notice or the erratic behaviour of the landlord.

Are you, however, a renter who is experiencing such problems or simply curious about what to do if you ever find yourself in a similar situation? In that case, allow us to help you through this blog, which will briefly discuss about the several protections against landowner harassment.

What does illegal eviction of tenants mean?

An illegal eviction, also known as an unlawful termination of tenancy, typically happens when a landowner forbids a tenant from entering a rental property or removes the tenant’s belongings from the property through the use of force, intimidation, or other methods (such as cutting off utilities or changing the locks). However, if the landowners evict you without taking the proper legal action, they are breaking the law.

How Do You Respond When Your Landlord Forcibly Evicts You?

Almost every state has rental control legislation pertaining to tenant protection, and each state has established specific circumstances for which the landlord may lawfully evict the renter. Additionally, a tenant has a legal right under the law to appear in court and defend himself against unlawful eviction, and some of those accessible remedies for tenants are discussed below:

Grounds for eviction

Non-payment of rent, breach of the lease, property damage, and illegal activity are the most typical grounds for evicting a renter. The tenant must therefore review the provisions of the State Rent Control Act to ascertain the grounds for eviction specified in the Act. In addition, if the tenant is being evicted for any reason other than those specified in the Act—which is considered wrongful eviction—they must seek the help of an eviction lawyer and the enforcement agencies to halt this.

Suit for injunction

A renter might be unable to leave a property when asked to do so for a number of reasons, such as having a medical emergency or having his elderly parents live with him. When this happens, the tenant has the option to file a case in the appropriate court to obtain an injunction that will prevent them from being evicted for any other grounds (other than those listed in the State’s Rent Act). Along with the assistance of housing rental lawyers, the renter should take this action, if they are violently evicted without providing them with adequate notice.

Rent Controller

In the event that the tenant receives a notice of eviction on pretences, they should go see the rent controller of the relevant jurisdiction and explain why they believe the notice of eviction is invalid. Additionally, following the tenant eviction laws, the court will summon the tenant, who will then be forced to submit his or her case and the arguments supporting the necessary evidence.

Notice of rent payment

If the landowner claims that he has not received the required rent and lists this as the reason for serving the notice of eviction, the tenant may legitimately ask him or her to send the information to his bank account so that he can conduct the transaction and deposit the outstanding rent. Moreover, after agreeing to it, the landowner must give the tenant the information within 10 days of the date they received the notice.

Also Read: Lex Solutions – Your One-Stop Destination For All Things Legal

Steps that you must follow to legally evict a tenant in India

Because eviction laws differ from state to state, the following are typical recommendations for evicting a renter. Nevertheless, you can contact the tenants lawyer of Lex Solutions if you need any assistance.

Serve the Tenant With a Termination Notice

The tenancy must be terminated before a landlord can evict a tenant for cause, and the landowner shall provide the tenant with the required notice before taking legal action to do so. Three different kinds of termination notices are generally available:

  • Pay Rent or Quit: The tenant is required to pay the rent within a predetermined period (often three to five days) or leave the rented property.
  • Cure or Quit: A breach of the rental agreement or lease must be remedied by the tenant within a set amount of time.
  • Unconditional Quit: Without a chance to correct the offense or pay the rent, the tenant must leave the property.

But to evict a tenant without good reason, the landlord must give the renter a 30- or 60-day notice to leave the premises.

File an Eviction Lawsuit

If the renter does not correct the issue or quit the property within the allotted time, the landowner must initiate an unlawful detainer case in small claims court. Following this, landlords have the right to evict tenants by serving a legal notice to tenants to vacate their premises.

Wait for the Tenant’s Answer

Within the time frame given on the summons, the tenant may “answer” the complaint. The renter may, however, use the response to refute the charges or present a defence. And, for instance, a tenant might claim that the eviction was carried out in retaliation or that the unpaid rent was used to pay for repairs the landlord refused to undertake.

Receive a Judgment for Possession

A default judgment is granted to the landowner if the tenant ignores the eviction notice India. Moreover, the landowner is entitled to take ownership of the property if the renter replies with an answer but the court rules in his or her favor.

Remove the Tenant

Despite having the right to reclaim the property, the landlord is unable to evict a renter without the help of a law enforcement official. Nevertheless, the tenant will be informed of the legal eviction and the number of days they have to leave once such an official receives the judgment and the cost. Moreover, the law enforcement authority may physically evict the tenant if they don’t leave the property in the allotted period.

Also Read: Introduction To The Indian Judicial System And Court Hierarchy

Summing Up

Now that you are aware of the characteristics of evictions and how to deal with them in a nation like India, you must use them as needed. Additionally, as a landowner, you must evict a problematic renter per the law. And, to ensure that you are acting legally, consult a local landlord-tenant law attorney in your area. For such assistance, a legal firm in Chandigarh, lexsolution can offer you a one-stop solution.

FAQs

  • Can a tenant seek an injunction against the landlord?

According to the state rental rules present in India, a tenant does not have the right to issue an injunction against the landlord. Moreover, injunction procedures are always discretionary, and a court of law cannot grant a perpetual injunction in favour of the plaintiff against the right owner if the plaintiff is only a trespasser.

  • Can police evict a tenant in India?

Even if the renters behave disrespectfully, the police cannot assist in reclaiming the property. However, the only court with the authority to order the eviction of a tenant is the court of the rent controller under whose jurisdiction the property is located. 

  • When a tenant can get the benefit of protection against eviction?

If the tenant can show that the landlord gave his written approval to the subtenant, he is entitled to protection from eviction. Additionally, it disallows any other consent, including implied or oral permission.