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What You Need to Know about the New Divorce Rules in 2021?

Matrimonial Disputes » What You Need to Know about the New Divorce Rules in 2021?

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Liberalization has slowly made its mark upon Indian society – the effects are amply visible when you look at the divorce rates in the country. While marriage is still considered a sacred bond by most Indians, we now have enough sense to sever those sacred bonds when the relationship doesn’t work out; instead of sloughing it out in a ruined marriage.

The divorce scenario in our country has changed quite a lot too. While a few decades back, it was primarily men filing for divorce in our country, the number of women initiating divorce procedures has risen significantly in recent years, almost equaling that of men. This has been mainly due to the government’s recognition of women’s rights, providing them with more opportunities to speak out and express themselves.

There have been many laws passed by the government too, along with historic judgments that have leveled the playing field in terms of the ease of filing for divorce for the fairer sex. In this blog, we look at some of the new divorce rules in 2021, which have played an important part in the democratization of separation procedures in our country.

Grounds for Divorce and The Fault Theory

In India, there are various divorce laws that are applied to various sections and religious minorities of Indian society. The majority of the population is governed by the Hindu Marriage Act of 1955, which applies to Hindus, Jains, Buddhists, and Sikhs. For the other minorities, laws like the Indian Divorce Act of 1869, the Parsi Marriage and Divorce Act of 1936, and the Dissolution of Muslim Marriages Act of 1939 is considered. There is even the Special Marriage Act that governs the marriage between persons belonging to two different religious communities.

What is common among all these laws though, are the valid grounds for filing a divorce. These grounds or reasons include:

  • Adultery
  • Presumed dead
  • Desertion
  • Conversion
  • Non-restitution of conjugal rights
  • Venereal disease
  • Non-resumption of cohabitation
  • Cruelty
  • Mental disorder
  • Renouncement

What is seen among all the laws that deal with separation and divorce in our country though – is that all of them are based on the fault theory. What that implies is that one partner in a marriage has always got to have a fault on the basis of which the divorce can be filed. The Apex court, however, has taken steps to correct this and still excises its special powers under Article 142 to grant divorces to couples who can no longer live together. This theory, called the irretrievable breakdown theory, is what we will discuss in more detail now.

Irretrievable Breakdown of Marriage

When a couple decides that they cannot live together as married partners, even though they might live under the same roof, it is called an irretrievable breakdown of the marriage. There are no laws regarding this in any divorce laws in the country, though the Supreme Court and the Law Commission have been pushing in that direction since 1978.

As of now, the Supreme Court recognizes the irretrievable breakdown of marriage as a valid ground for divorce and uses its powers under Article 142 to exercise the same. Though many don’t approve of this ground based on the ‘sanctity’ of a marriage, all one needs to do to get a divorce approved on this ground is to reach the Supreme Court, which the best divorce lawyer in Chandigarh can definitely help you with.

Also Read: The Indian Divorce Act 1869: Everything You Need To Know

6-month Cool-off Period is no Longer Mandatory

Section 13B (2) of the Hindu Marriage Act, which deals with mutual divorce, requires the court to assign a 6-month period between the first and final hearing to give the couple a chance for reconciliation. The Supreme Court, in recent times though, has been waiving off this rule when it is clear that the couple has no chance of reconciliation. Now, even lower courts are expected to follow this practice and make the 6-month cooling-off period not mandatory, but discretionary.

Law of Maintenance for Live-in Relationships

The provision of maintenance for divorce settlements under the Hindu Marriage Act of 1955, has now been extended to live-in relationships too. Since live-in relationships are seen under the same lens by the law as marriage, the woman can seek maintenance from the court to maintain the same standard of living as when she was cohabiting with her partner.

The best law firm in Chandigarh, Lex Solutions, also assures that no proof of marriage is necessary when cohabitation has been going on for a long time. In such cases, they say, the woman can seek maintenance under Section 125 of the Criminal Procedure Code or under the Protection of Women from Domestic Violence Act, 2005.

Adultery is no More a Criminal Offence

While adultery is still a valid ground for divorce, it is no longer a punishable offense. The court is of the opinion that punishing the unfaithful spouse and/or their lover cannot be a way to save a marriage. This was probably one of the most celebrated decisions of the Supreme Court, as it ensures the right to choose sexual partners and also negates the stress of having to pay a considerable fine on top of divorce lawyer fees.

Also Read: The High Rate Of Divorce In India And Its Effect On Society

Unconstitutionality of Triple Talaq

Triple talaq, which was earlier used by many sects of Muslims as a way to end marriages – has been deemed unconstitutional to women’s rights. This practice, where the husband could annul a marriage just by uttering ‘talaq’ thrice, now stands abolished and is a criminal offense.

Divorce Obtained by Personal Laws for Christians Longer Valid

Unlike the best corporate law firms in India that will recommend going to a civil court to file a divorce, many ecclesiastical institutions like Catholic churches have been in the practice of granting divorce to Christians. This now stands outlawed, as the Supreme Court in the Molly Joseph vs George Sebastian case decreed that personal law cannot override civil law and only a civil court can dissolve a marriage. That means, if the person whose marriage had been dissolved at a religious institution remarries, it would be considered bigamy.

Conclusion

The new divorce rules in 2021 have brought about a lot of changes in Indian society. This is especially seen in the guardianship of women’s rights by the Supreme Court. The new rules have also heralded a new era of the championship of fundamental rights, which has made divorces less messy, time-consuming, and expensive.

FAQs

1. Which is the top law firm in Chandigarh for divorce lawyers?

Lex Solutions is the top law firm in Chandigarh for divorce lawyers.

2. Are there any new grounds for divorce under the new rules?

Yes. As per the new divorce rules, domestic violence, dowry harassment, and child marriage are now grounds for filing for a divorce.

3.When can women previously in a live-in relationship get maintenance under the Protection of Women from Domestic Violence Act, 2005?

Women previously in a live-in relationship can get maintenance under the Protection of Women from Domestic Violence Act, 2005 only when Section 125 of the Criminal Procedure Code does not apply to them. It is best to hire a lawyer to figure out which law applies to whom.

4. Why are other courts following the new Supreme Court decisions regarding divorces when there is no law about them?

The decisions of the Supreme Court of India are viewed as precedents in our country, and as such, they can be cited or used as equal to the law. Hence, smaller courts are required to follow the precedents of the Supreme Court.

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.