Divorce procedure in India has been formulated, keeping in mind, the sacred nature of marriage. In India, marriage is regarded as a sacred union aimed at establishing a healthy and social life. It is seen as a sacrament that binds a man and a woman for their entire lifetime, with the Hindu belief emphasizing its indissoluble nature even after death. Divorce rate in India is around 1 percent, making divorce in India, a very rare occurrence. Traditionally, the concept of divorce in India was absent. However, in the state of Goa, the Goa Civil Code is applicable to all residents, irrespective of religious boundaries, and personal laws do not hold sway. Matrimonial laws in Goa empower the court to grant remedies such as Restitution of Conjugal Rights, judicial separation, alimony, child custody, and maintenance.
The divorce process in India which involves the legal dissolution of the marriage between spouses, was initially absent in some religions. However, with time, divorce process has become legally recognized. The divorce laws in India are based upon different religions, that are practiced in India. The Indian Divorce Act, 1869, governs divorce among Christians, Muslim laws, govern divorce among Muslims and the Hindu Marriage Act governs divorce among the Hindus. The divorce procedure in India, gives the court the authority to grant a divorce upon receiving a petition from either the husband or the wife. The annulment of marriage renders it null and void in the eyes of the law, signifying the termination of the marital relationship. The divorce process in India, encompasses various aspects such as alimony, child visitation arrangements, child custody, and other matters, aiming to settle disputes and enable the parties to live contentedly.
Types of divorce
- Mutual Divorce: Governed by the Hindu Marriage Act, mutual divorce process in India, involves the voluntary agreement of both parties, the husband and the wife, to peacefully separate. In the mutual divorce process, the couple must seek legal advice, discuss matters such as alimony and child custody, and mutually consent to the dissolution of their marriage. One essential condition for filing a mutual divorce is that the couple must have been living separately for a minimum period of one year. Even though the mutual divorce process in India, is smooth and does not involve fighting a case in the courts, one will still require divorce lawyers, to navigate through the divorce process smoothly.
Procedures for Mutual Consent Divorce Process in India involve several steps:
1. Initiate Petition: Draft a petition outlining the reasons for divorce with the agreement of both parties.
2. File Jointly: File the petition jointly in a family court through respective divorce lawyers. Legal consultation with expert divorce lawyers can be obtained online.
3. Court Order for Oath Statement: After reviewing the petition and documents, the court issues an order for recording the oath statement.
4. Cooling Period: Parties are granted a six-month cooling-off period to explore reconciliation.
5. Final Hearing: If reconciliation is not achieved after six months, both parties attend the final hearing within 18 months of filing. At this hearing, the court issues the divorce decree, officially ending the marriage.
- Contested Divorce: A Contested Divorce is initiated when one spouse decides to seek a divorce without the mutual agreement of the other. The divorce law governing this for Hindus, is the Hindu Marriage Act of 1955 that outlines specific grounds for contested divorce, including cruelty, conversion of religion, insanity, communicable disease, or the absence of either spouse for more than seven years. In contested divorces, the process is initiated by one party filing for divorce based on these legal grounds.
Procedure For Contested Divorce Procedure in India, initiated on specific grounds, the procedures are as follows:
1. Prepare Petition: Draft a petition stating the facts and grounds for divorce. File the petition in a family court along with affidavits, Vakalatnama, and relevant documents with the assistance of a divorce lawyer.
2. Court Notice: If the court approves the petition, it issues a notice or summons to the opposing party to appear on a specified date with their lawyer.
3. Mediation Attempt: The court may suggest mediation, and if unsuccessful, it proceeds with the divorce proceedings.
4. Court Appearance: On a designated date, both parties appear in court, present statements, submit evidence, undergo cross-examination, and provide witnesses. Attorneys present closing arguments.
5. Court Decision: The court issues its decision and a divorce decree on a set date. The aggrieved party has three months to file an appeal from the order date.
One typically requires the engagement of divorce lawyers in the process of contested divorce in India.
Legal provisions and procedure for divorce in India
India with its diverse cultural landscape, has established various personal laws that govern marriage and divorce, each rooted in distinct traditions and beliefs. These laws cater to different religious communities, ensuring that the principles align with their specific customs. The key divorce laws in India are:
The Hindu Marriage Act, 1955
In the realm of Hinduism, Buddhism, Sikhism, and Jainism, marriage is considered a sacred union, and divorce was historically not recognized. The Hindu Marriage Act, of 1955, applies to these communities, extending its jurisdiction even to Hindus residing outside India and Scheduled Tribes.
Conditions for a valid Hindu marriage are elucidated in Section 5, encompassing criteria such as mental soundness, age of the bride and groom, absence of a living spouse, and no blood relation based on Sapinda unless custom permits otherwise.
Section 13 of the act delineates various grounds for divorce, including adultery, cruelty, conversion, unsoundness of mind, leprosy, desertion, venereal disease, renunciation of the world, presumed death, and non-presumption of cohabitation, among others. Additional grounds are provided specifically for wives under Section 13(2), such as bigamy, rape, sodomy, bestiality, and the option of puberty.
Divorce Procedure in India
Marriage under the Hindu Marriage Act, 1955 is recognized as valid upon meeting specified conditions outlined in Section 5. Traditionally, Hindu law did not acknowledge divorce, given the sanctity attributed to marital bonds. However, the Hindu Marriage Act marked a transformative shift by introducing provisions under Section 13, allowing divorce based on specific grounds.
Grounds for Divorce - Sections 13(1) and 13(1A):
The Act provides grounds for divorce applicable to both parties, including adultery, mental or physical cruelty, two years of desertion, unsound mind, communicable venereal disease, renouncement of worldly ties, absence for seven years, and lack of cohabitation following judicial separation or restitution of conjugal rights.
Specific Grounds for Women - Section 13(2):
Section 13(2) outlines four grounds specifically available to women, such as the husband's polygamous marriage, guilt of heinous acts, non-resumption of cohabitation after a maintenance decree, and the woman's right to repudiate marriage before turning 18 in cases of marriage before the age of 15.
Initiating Divorce Proceedings - Section 13 and Section 19:
To seek divorce, a petitioner must present a petition to the district court under Section 13 and Section 19 of the Hindu Marriage Act. The burden of proving the grounds for divorce lies with the petitioner. The legal system, emphasizing the societal duty to preserve the institution of marriage, approaches divorce cautiously, making it challenging to dissolve marital ties easily.
Mutual divorce process in India - Section 13B:
Introduced by the 1976 Amendment Act, Section 13B provides for the mutual divorce process in India. Couples can file a joint motion for divorce in India, under the divorce law as prescribed under the Hindu Marriage Act, stating they have lived separately for a year and mutually agreed to divorce. A second motion must be filed within 6 to 18 months, constituting a cooling-off period to encourage reconciliation, during the divorce process in India. If the second motion is not filed or is withdrawn, the petition generally fails. However, if submitted within the cooling-off period, the court scrutinizes the claims and grants a divorce decree if satisfied with their veracity.
Rationale Behind the Cooling-Off Period:
The cooling-off period aims to prevent impulsive divorce filings and encourages thoughtful resolution of marital differences. This period between motions provides an opportunity for couples to reflect on their decision and explore reconciliation, contributing to a more deliberate and considered approach to divorce.
In Sureshta Devi v. OM Prakash (1991), the Supreme Court interpreted the phrase "living separately" in Section 13B of the Hindu Marriage Act. It clarified that this means the parties should not be fulfilling marital duties, regardless of residing under the same roof. The court emphasized the absence of conjugal obligations for a continuous one-year period preceding the divorce petition.
Hitesh Bhatnagar v. Deepa Bhatnagar (2011) addressed the issue of withdrawing consent in divorce petitions under Section 13B. The court ruled that consent can be withdrawn during the cooling-off period or even after its expiry but must occur before the passing of the decree. The court stressed the jurisdictional importance of mutual consensus, and withdrawal before the decree results in the loss of court jurisdiction.
In Rajat Gupta v. Rupali Gupta (2018), the Delhi High Court established that breaching a settlement agreement for divorce through mutual consent can lead to contempt charges if willful breach and disadvantage can be proven. Anurag Goel v. Chhavi Agarwal (2023) similarly held a spouse guilty of contempt for violating a settlement agreement, imposing penalties and providing a chance for remedy through apology and compliance.
Anil Kumar Jain v. Maya Jain (2009) clarified that the statutory period of 6 to 18 months for the second motion in divorce cases under Section 13B is substantial and can only be waived by the Supreme Court under Article 142. Shilpa Sailesh v. Varun Sreenivasan (2023) reiterated this, stating that any court adjudicating the petition under Section 13B, not just the Supreme Court, can waive the statutory period.
Presentation of Divorce Petition under Hindu Marriage Act
Bowman v. Bowman (1949) established that a divorce petition under the Hindu Marriage Act can only be presented after one year of marriage. Exceptions are granted by the court based on exceptional hardship or depravity. The court assesses the degree of hardship suffered by the petitioner due to the respondent's conduct.
Section 19 of the Hindu Marriage Act determines the court's jurisdiction based on factors like the place of marriage, residence of the respondent, and the petitioner's current residence. Additionally, Section 3 of the Family Courts Act, 1984, establishes the jurisdiction of family courts in handling divorce petitions, offering a forum for parties irrespective of their religion.
Transfer of Petitions: Shruti Kaushal Bisht v. Kaushal R Bisht (2020)
Shruti Kaushal Bisht v. Kaushal R Bisht (2020) clarified the procedure for transferring petitions filed under sections 10 or 13 of the Hindu Marriage Act. Only these specific petitions can be transferred under Section 21A, while other petitions require application under sections 24 and 25 of the Civil Procedure Code, 1908.
Jagraj Singh v. Birpal Kaur (2007) emphasized the court's duty to make efforts for reconciliation in divorce cases, allowing the issuance of non-bailable warrants to secure the parties' attendance. Santhini v. Vijaya Venkatesh (2018) addressed the use of video conferencing, stating that it generally cannot replace personal attendance, except in specific cases where the court deems it in the interest of justice.
Divorce Through Customary Hindu Practices: Shakuntala Bai v. Kulkarni (1989) and Duleshwar Deshmukh v. Kirtilata Deshmukh (2022)
Shakuntala Bai v. Kulkarni (1989) upheld ancient and unbroken customs of divorce if they align with public policy and morality. Duleshwar Deshmukh v. Kirtilata Deshmukh (2022) recognized the validity of divorce through the customary practice of "chod-chutti" but emphasized the need for it to align with public policy.
Divorce Procedure in India Based on Irretrievable Breakdown of Marriage
The concept of irretrievable breakdown of marriage originated in the New Zealand Divorce and Matrimonial Causes Amendment Act, 1920. The court in Lodder v. Lodder (1921) emphasized that it is not in the interest of parties or the public for a marriage to continue if it has ceased to exist.
Samar Ghosh v. Jaya Ghosh (2007) and Legislative Efforts
Samar Ghosh v. Jaya Ghosh (2007) heavily relied on the 71st Law Commission Report, suggesting the concept of irretrievable breakdown of marriage. Despite a bill proposing Section 13C in the Hindu Marriage Act, 1955, the legislature did not pass it.
Yousuf Rawther v. Sowramma (1970) recognized the ground of divorce as the breakdown of marriage rather than conjugal guilt. Naveen Kohli v. Neelu Kohli (2006) acknowledged that living separately for a considerable time implies a broken marriage.
Anil Kumar Jain v. Maya Jain (2009) held that courts, using inherent powers under Article 142, can dissolve marriages deemed unworkable and emotionally dead when no statutory grounds exist. Shree Rakesh Raman v. Smt. Kavita (2023) reinforced this, specifying that only the Supreme Court can grant divorce on the ground of irretrievable breakdown until legislation provides a specific provision.
The Divorce Act, 1869
Originally enacted during British rule and extended to the entire nation after the abrogation of Article 370, the Divorce Act, of 1869, exclusively applies to Christians residing in India.
The Indian Divorce Act, provides grounds for divorce under Section 10, applicable to both parties, including adultery, conversion, leprosy, venereal diseases, presumed death, non-consummation, desertion, unsoundness of mind, and cruelty. Moreover, additional grounds are specified for wives in cases of rape, bestiality, or sodomy.
The Indian Divorce Act applies in cases where either spouse follows the Christian religion, and jurisdiction for divorce petitions is generally with district courts as per section 4 of the Act. Section 10 of the Indian Divorce Act, allows either party to seek divorce based on various grounds by filing a petition in the district court.
Special Marriage Act, 1954
The Special Marriage Act, 1954, stands as a unique legislation applicable to all citizens, irrespective of caste or religion, fostering a special legal framework that transcends such distinctions. This act applies to citizens residing in India, as well as those living outside its borders.
Section 4 outlines the conditions for a valid marriage, including soundness of mind, attainment of the age of majority, and the absence of prohibited relationships.
Section 27 of the Special Marriage Act provides grounds for divorce, with Section 27A granting the court discretionary power to decree judicial separation instead of divorce. Notably, the court can exercise its discretion except in cases of presumed death.
To seek divorce under this Act, a petition must be filed with the district court, citing grounds specified in section 27 of the Act.
Muslim personal laws are governed by the Muslim Personal Law (Shariat) Application Act, 1937, derived from the Holy Quran, Hadiths, and Fatwas. This law encompasses aspects like marriage, succession, and inheritance for Muslim citizens residing in India, excluding those married under the Special Marriage Act, of 1954.
Muslim marriages are contractual agreements with specific conditions outlined under the Dissolution of Muslim Marriages Act, of 1939. These conditions encompass the mental soundness of the bride and groom, the presence of agents, wali, and witnesses during Nikah, and the stipulation of a specified dower by the groom to the bride.
Modes of divorce under Muslim law include judicial and extra-judicial categories. Judicial divorces are decreed by the court, settling matters of child custody, alimony, and maintenance. Extra-judicial divorces are based on the will of the spouses or mutual agreement, with the pronouncement of Talaq serving as a key mechanism. Different forms of Talaq, such as Talaq-e-Sunnat, Biddat, ila, and Zihar, offer various rights to both husbands and wives. Furthermore, Muslim divorce is categorized into divorces initiated by the husband (Talaq), by the wife (Talaq-e-Tafweez, Lian, and Khula), and through mutual consent (Mubarat).
Dissolution of Muslim Marriage Act, 1939: Grounds and Procedure
The Dissolution of Muslim Marriage Act, 1939, based on the Maliki School of Law, provides statutory grounds for Muslim women to seek divorce. Grounds include the husband's unknown whereabouts, failure to maintain, imprisonment, impotence, insanity, virulent venereal disease, option of puberty, cruelty, or any other valid Muslim law ground. The Act also clarifies the consequences of conversion or renunciation of religion.
- alaq-e-Tafweez: A Pre-existing Agreement
Talaq-e-Tafweez is a form of delegated divorce, where the husband grants the wife the authority to pronounce Talaq at her discretion. This pre-existing agreement enables the wife to exercise the right to divorce if specific conditions stipulated in the agreement are met.
- Khula: Wife's Consent for Divorce
Khula is a form of divorce where the wife initiates the process by consenting to end the marriage. The wife agrees to provide consideration (monetary or otherwise) to the husband in return for her release from the marital bond. The court examines the validity of the Khula, ensuring it meets the legal requirements.
Understanding the diverse forms of divorce under Muslim law, including the Dissolution of Muslim Marriage Act, Talaq-e-Tafweez, and Khula, provides insight into the complexities of marital dissolution within the Muslim community. Ongoing legal developments may further shape the procedural aspects and grounds for divorce under Muslim law.
Mubarat, recognized under the Muslim Personal Law (Shariat) Application Act, 1937, is a form of divorce requiring mutual consent. In the case of Mrs. Saba Adnan Sami Khan v. Adnan Sami Khan (2010), the Bombay High Court deemed Mubarat a single irrevocable divorce, terminating mutual rights and obligations. While not mandatory, seeking a court declaration of marital status is advisable.
- Ila (Vow of Continuance):
Ila, another form of divorce under the same Act, allows husbands to seek divorce by taking a vow to refrain from physical relations with their wives for four months. The application of Ila varies among Hanafi Sunni, Shia, and Shafi Muslims, influencing dissolution or the wife's right to seek divorce under specific conditions. It's worth noting that Ila is not practiced in India, as observed in the case of Masroor Ahmed v. State (NCT of Delhi) (2013).
- Zihar (Inchoate Divorce):
Zihar, applicable under the Muslim Personal Law (Shariat) Application Act, 1937, permits husbands to seek divorce by expressing dissatisfaction with their wives by comparing them to prohibited relatives. The husband can revoke the dissolution through acts of penance. However, like Ila, Zihar is not practiced in India, as confirmed in the case of Masroor Ahmed v. State (NCT of Delhi) (2013).
Lian, another recognized form of divorce, occurs when a husband accuses his wife of adultery. If the charges are proven false, the court can dissolve the marriage. Lian continues to be a valid form of divorce in India, as seen in the case of Masroor Ahmed v. State (NCT of Delhi) (2013). It involves a decree from the court.
Talaq, described as a unilateral act by the husband, is recognized under the Muslim Personal Law (Shariat) Application Act, 1937. The right to pronounce talaq rests solely with the husband, and it doesn't require specific reasons. The article further delves into subtypes like Talaq-e-Ahasan, Talaq-e-Hasan, and Talaq-ul-Biddat. While it is not mandatory, obtaining a court declaration of marital status is advisable.
General Rules of Talaq:
The article outlines general rules under Muslim law, such as the husband's requirements for puberty and sound mind. Differences exist between Shia and Sunni laws regarding witnesses, pronouncement, and communication of talaq. Notably, the article emphasizes that talaq pronounced in extreme anger may be considered invalid. The article also explores dissenting opinions in various legal cases.
Talaq-e-Ahasan is considered the most acceptable form of talaq in Islamic law. During the period of "tuhr," when the wife is not menstruating, the husband pronounces the words 'I talaq thee.' Following this, a waiting period called "iddat" of 3 lunar months or 3 menstrual cycles ensues. If reconciliation doesn't occur during iddat, the marriage dissolves. It is unique as the marriage persists during iddat, allowing the husband a chance to revoke the talaq. This opportunity is absent in other forms where iddat starts after divorce.
Talaq-e-Hasan involves the husband uttering talaq twice in consecutive months during tuhr, with a final pronouncement in the next tuhr. The marriage ends automatically on the third pronouncement, initiating iddat. Physical relations cease after the first pronouncement, and the husband can revoke the talaq before the third pronouncement. If a single pronouncement is made during tuhr, distinguishing between Talaq-e-Ahasan and one of Talaq-e-Hasan's three pronouncements becomes challenging.
Talaq-ul-Biddat entails a single irrevocable pronouncement or three consecutive pronouncements resulting in irreversible marriage dissolution. The 2017 Shayara Bano v. Union of India case declared triple talaq illegal. The majority judges, led by Justice Kurian Joseph, held that practices contrary to the Holy Quran violate Shariat and are thus impermissible. Justices Lalit and Nariman found triple talaq not integral to religion, deeming it arbitrary and violative of Articles 14 and 21. Justices Khehar and Abdul Nazeer dissented, asserting its religious significance. The 2019 Muslim Women (Protection of Rights on Marriage) Act criminalized instant triple talaq, making it punishable with imprisonment and a fine.
Parsi marriage and Divorce Act of 1936
The Parsi Marriage and Divorce Act of 1936, amended in 1988, delineates various grounds for divorce within the Parsi community in India. These include situations such as continuous seven-year absence, pregnancy by another man with the condition that the husband was unaware at the time of marriage and refrained from engaging in sexual activity thereafter, failure to consummate the marriage within the first year, and instances of insanity, provided the other spouse was unaware of it at the time of marriage. Other grounds encompass grave sexual offenses, cruelty, transmitting a venereal disease or forcing a spouse into prostitution, imprisonment for seven years or more, desertion for two years or more, and the inability to live together even after a maintenance order or court-ordered separation. To seek dissolution of marriage under this Act, a plaintiff must file a suit by presenting a plaint. The courts are required to inform the registrar under section 10 about the divorce proceedings.
The divorce rate in India is very low, however the incidence of divorce in India is gradually increasing. The divorce laws lay down the divorce process in India, as envisaged under different personal laws. It is advisable to always engage a divorce lawyer, for the purposes of divorce in India. This helps makes the divorce procedure in India, easily navigable and also helps reduce unnecessary inconvenience.