Blog

The Legalities of Divorce in India: What You Need to Know?

Legalities of Divorce in India
Matrimonial Disputes » The Legalities of Divorce in India: What You Need to Know?

Table of Contents

Divorces are no fun – if you want to go by the understatement of the century. A divorce can be a harrowing, stressful, and even debilitating event for anyone. That includes both the partners going through the divorce and those around them. In olden times, especially in the Hindu community, marriages were seen as a sacrament, which made the concept of separation non-existent. The British, with their Protestant sensibilities, first introduced the concept of divorce to the Indian masses (if we don’t consider the Muslim community whose customs were seen as alien anyway).

After Independence, when the Indian Judiciary system finally began to take the helm in defining laws for its countrymen, laws regarding marriage and separation for the Indian masses began to spring up with the Hindu Marriage Act of 1955.

Still like every law, they came with their own complicated legalities that made it difficult for common people to take advantage of them (and even do to a degree today). Hence, this blog tries to explain the various legalities of divorce laws in India in simpler terms.

Judicial Separation

This is the first term you’ll generally hear concerning divorces. Judicial separation is the legal process that usually precedes a divorce proceeding. A couple can live separately for a stipulated amount of time without having to file for a divorce once a court passes a decree of a marriage separation agreement.

Mutual and Contested Divorces

There are provisions for two types of divorce in Indian Divorce laws. This remains constant across the various marriage laws that govern the marriage and separation law among various communities in our country. These two types of divorce are:

  • Mutual/Uncontested Divorce
  • Contested Divorce

A mutual or uncontested divorce is when the couple files for a divorce together. This means both of them have agreed to the decision of getting a divorce before approaching the court. This is less time and resource-consuming than a contested divorce.

A contested divorce, on the other hand, is when one spouse files for a divorce but the other objects to the move. This type of divorce is of the messier kind as it can involve a lot of hearings to reach a decision. Either the husband or wife can file for this kind of divorce as per the various law of marriage and divorce in our country.

Also Read: What You Need To Know About The New Divorce Rules In 2021?

Void Marriages

There is a provision in section 5 of the Hindu Marriage Act that states that marriages can be declared void (hence unconstitutional or illegal) if they don’t meet certain conditions. These legal issues in divorce include:

  • Neither partner should have a living spouse at the time of the registration of the marriage.
  • The partners are not sapindas of each other or were in a prohibited relationship.
  • The marriage remained unconsummated due to impotence.
  • The consent of marriage was not obtained by force.
  • The wife was not pregnant by some other person at the time of marriage.

Irretrievable Breakdown of Marriage

When a couple is mutually in agreement that they cannot live together as husband and wife any longer, it is called the irretrievable breakdown of a marriage. There are no laws regarding this phenomenon in any of the various divorce laws in the country, though both the Supreme Court and Law Commission have been pushing to include this in the legal divorce procedure.

However, the Supreme Court still understands the validity of the irretrievable breakdown of marriage and uses its special powers under Article 142 to exercise this in divorce cases that appear before it. One good thing that has come out of the efforts of the Supreme Court is that the 6-month cool-off period that used to be mandatory in mutual consent divorce cases is now discretionary. Under this divorce new law, couples can appeal to civil courts to waive this 6-month period that was in place to avoid hasty decisions if they are sure that they cannot cohabitate.

Legalities in the Valid Ground for Divorce

When it comes to contested divorce, there are many grounds based on which they can be filed. Some of these grounds in family law divorce are self-explanatory, while some are not so clear as they involve minor legalities. These valid grounds for filing a divorce include:

  • Adultery
  • Presumed dead
  • Desertion
  • Conversion
  • Non-restitution of conjugal rights: This is when cohabitation has not resumed or the marriage has still not been consummated even after the court has passed a judicial decree for the same
  • Venereal disease (includes leprosy too)
  • Non-resumption of cohabitation: Cohabitation has not resumed for 1 year or more since the filing of the judicial separation
  • Cruelty
  • Mental disorder
  • Renouncement

Also Read: The Different Types Of Divorce Petitions In India

Conclusion

The Constitution of India, which serves as the basis for all laws in the country, is the longest-written constitution in the world. It is thus no surprise then that there are various laws with their own legalities and technicalities when it comes to the law of divorce in the country. Hence, there are a lot of people even today who choose to go on living in horrible marriages because they cannot understand these.

That is why this blog exists – to lower the bar to entry when it comes to understanding legal technicalities. However, on its own, this knowledge of the various legalities of divorce isn’t enough and we at Lex Solutions always advise you to get a proper divorce lawyer if you’re considering a divorce or want to help someone going through the same.

FAQs

  • What is the new law of divorce?

The new law of divorce that has made waves around the country is that Triple Talak is no longer a valid form of divorce and it stands as a punishable offense.

  • What is the minimum time to file divorce?

The minimum time to file a divorce is 1 year. Couples must live together for at least a year before they can file for a divorce. This is in place so that people don’t take hasty decisions.

  • Is 1 year separation mandatory for mutual divorce?

No. The Kerala High Court struck it down in a hearing in 2022. Courts can now use their discretionary power to waive off or shorten the separation period.

  • What are the 5 grounds for divorce in India?

Actually, there are 10. The common five grounds for divorce include adultery, cruelty, venereal disease, desertion, and Mental disorder.

  • Where can I get good counsel for divorce in Chandigarh?

For legal advice divorce and other legal needs, look no further than Lex Solution, the best legal firm in Chandigarh.

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.