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Divorce Law in India: Know More About It

Divorce Law in India: Know More About It

Divorce in India is governed under personal laws of the specific religions. Each religion has its own personal laws governing divorce and different sets of rules and grounds for divorce.

Grounds for divorce in India

Grounds for Divorce under Hindu Marriage Act 1955.

  1. Adultery
  2. Cruelty
  3. Desertion- for a period of at least 2 years
  4. Conversion(Religious)
  5. Mental Disorder
  6. Leprosy
  7. Venereal Disease
  8. Renunciation- A spouse can file divorce if the other spouse has renounced all worldly affairs
  9. Not Heard Alive- When the spouse is not heard alive form those persons who would naturally have heard of the person for a continuous period of 7 years, person is presumed dead.
  10. No resumption for co-habitation- if the couple doesn’t resume co-habitation even after the court has passed a decree of separation

Also read Annulment of Marriage

Provided only to women-

  1. When husband has indulged in Rape, bestiality and sodomy.
  2. If the marriage is solemnized under HMA and husband married another women when wife was alive without the dissolution of the first marriage.
  3. A girl entitled to divorce if married off before the age of 15 and renounces marriage before turning 18.
  4. When there is no-cohabitation for a year and the husband neglects maintenance judgement awarded by the court.

Grounds for Divorce under the Dissolution of Muslim Marriage Act 1939 (for Muslim women)

  1. When whereabouts of husbands not known for period of at least 4 years.
  2. When husband fails to provide maintenance to wife for at least 2 years.
  3. When husband under imprisonment for 7 years or more.
  4. When husband is not able to meet marital obligations.
  5. When girl was married before 15 and decides to end the relationship before attaining the age of 18.
  6. When the Husband indulges in the acts of cruelty.

Grounds for divorce under the Indian Divorce Act, 1869. (Christians)

  1. Suffering from unsound mind, leprosy or venereal disease for at least 2 years before filing of divorce.
  2. Failure in restoring conjugal rights for at least 2 years
  3. Inflicting cruelty and giving rise to such mental anxiety that can be injurious to health and injurious.
  4. Wife can file divorce on the grounds of rape, sodomy and bestiality.

Grounds for divorce under Parsi Marriage and divorce Act, 1936

  1. Continuing absence for at least 7 years.
  2. Non-consummation of marriage within 2 years
  3. Unsound mind with proviso that unsoundness was not known by the spouse at the time of marriage and divorce not filed within 3 years of marriage.
  4. Pregnancy by another man, provided that the husband was not aware of this at the time of marriage and the husband has not engaged in sexual intercourse with the wife, post knowledge of such pregnancy.
  5. Adultery, bigamy, rape fornication or any other perverse sexual act.
  6. Cruelty
  7. Suffering from venereal disease or forcing wife into prostitution
  8. Sentenced to 7 years or greater of prison.
  9. Desertion for not less than two years.
  10. Co-habitation has not resumed after an order of maintenance or decree of judicial separation was passed. 

Grounds for divorce under the Special Marriage Act,1954 are

  • Adultery
  • Desertion for period of 2 years
  • 7 or more years imprisonment under the Indian Penal Code, 1860
  • Cruelty
  • Mental disorder
  • Communicable disease
  • Presumption of death
  • Judicial separation
  • Restitution of conjugal rights

Type of divorce petitions in India

There are two types of divorce petitions in India –

  • Divorce with Mutual Consent
  • Divorce Without Mutual Consent/ Contested divorce

Divorce with Mutual Consent

When both husband and wife seek to obtain divorce, it is known as divorce by mutual consent, it is a convenient and less time consuming process.

Divorce by mutual consent is taken under sec 13 b of HMA, sec 28 of Special Marriage Act and sec 10A for Indian Divorce Act.

Petitions for dissolution of marriage are to be presented before the court the grounds of which are:

  • Living separately for more than one year
  • Have not been able to live together
  • Have mutually agreed dissolution of marriage
  • Parties are given a cooling off phase of 6 to 8 months, however this requirement can be waived off.
  • Before the decree is passed the court will enquire about the authenticity of petition filed

You may also read How To Apply For Divorce

Muslims can get Divorce by mutual consent is in two ways –

Khula- Wife gives a consideration for getting divorce by mutual consent.

There are three conditions for khula divorce-

  • Offer form wife
  • Consideration provided by wife to the husband
  • Acceptance of the offer by husband

Mubarat- Both spouses mutually decide to get divorce. It is Offered by one spouse and accepted by other, once accepted becomes irrevocable

Contested Divorce

The contested divorce petitions can be filed on the grounds mentioned under the different acts by either the husband or wife. The parties have to contest in the court to get divorce.

  • Hindus, Buddhist, Sikhs and Jains Under the HMA, 1955
  • Christians under the Indian Divorce Act, 1869
  • Muslim men can take divorce anytime without even filing the petition but Muslim women can take divorce under the dissolution of Muslim marriage act 1939.
  • Those who have married under the Special marriage act have to take divorce under the grounds mentioned in the act.

Also read Property Rights Of A Wife After Her Husband’s Death – Is She The Legal Heir Of Husband’s Property In India?

Divorce Notice

A spouse can send a legal notice to the other spouse for communicating the intention to start legal proceeding of divorce against the other spouse.

Some essentials of the divorce notice are-

  • Basic information of the sender of the notice(Name, place of residence, description etc.)
  • Details of the cause of Action
  • The relief claimed by the sender
  • The legal basis of the relief claimed.
Child Custody Law in India: Know It In Detail

Child Custody Law in India: Know It In Detail

Custody of children is a very sensitive matter. If the law does not govern child custody, it may create concerns not only for the parents, but also for the child. Hence, India has child custody laws that cater to the interests of the child. We have child custody laws in the form of personal laws and not a single uniform child custody law.

How to win child custody for mothers in India

Under Hindu Minority and Guardianship Act, 1956

A child under the age of five should be handed to the mother since it is thought that a child of this age requires attention and love, which can only be provided by the mother.

You may also read Property Rights Of A Wife After Her Husband’s Death – Is She The Legal Heir Of Husband’s Property In India?

The ultimate requirement for giving child custody is that it must be in the "best interests of the child." All of the above regulations can be waived if there is a strong indication that they would have a negative impact on the "best interests of the child."

Mother should keep in mind what are the conditions under which a person cannot be given child custody-

Certain people cannot be granted child custody:

  1. a person with bad habits adversely impacting the child's proper upbringing;
  2.  a person who is no longer a Hindu or has chosen to convert to another religion;
  3. A person who has renounced the material pleasures of the world;
  4. a person who may not be able to encourage the development of the child in his best interest. Even mothers may be denied custody on this ground.

Under the Muslim law

Mother has the custody of a child until son is 2 years old and daughter is 7 years old. (Shia Law)

Custody of child is with mother until the son is 7 years old and for the girl until she attains puberty.

The custody right of the mother will remain even after she is divorced, but the right will be lost after remarriage

Consent of child is taken into consideration provided that there is no tutoring in the case tutoring is there consent is disregarded.

Although the father is considered the natural guardian after son attains age and daughter attains puberty but these rules can be subject to exceptions where persons can be denied the custody irrespective of the gender.

Under Christian Law

Here the court has to exercise its power to ensure the best interests of the child and adverse things would be considered before arriving at a decision.

Father's Custody Rights in India / Custodial rights of fathers in India

Hindu law

It is a customary practice in Hindu law that father is an actual guardian and has ultimate right of custody, in the section 6 of the Hindu Minority and Guardianship Act, 1956 custody of a child aged between 5 to 18 years is the right of father.

The Supreme Court ruled in Geeta Hariharan v Reserve Bank of India that the mother can seek custody only if the father has died or is not present. However, If the child is illegitimate this rule does not apply, Only the mother has the right to custody in this situation.

But the courts have inclined more towards the best interest of the child doctrine, all rules can be disregarded if they are not in the child’s best interests.

You may read Divorce Law in India

Muslim law

The custody of boys above age 7 and girls after puberty is given to the the father who is considered to be the natural guardian similar to hindu law.

Although doctrine of best interests is applicable here also.

Child Custody Age Limit

In Hindu law the, child Custody Age limit is 5, i.e. until that age child is naturally given to the mother subject to the best interest doctrine while after that custody is decided by court properly

In Muslim law:

There is a difference between shia and Hanafi law

In shia law the mother has the custody of the boy until he is 2 years old and the girl until she is 7 years old.

In Hanafi law the mother has custody of the boy until he is 7 years old and the girl until she attains puberty.

After that the custody is the right of the father (subject to exceptions abovementioned)

Custody of child above 7 years old in India

In Muslim law

There is a difference between Shia and Hanafi law

In shia law the mother has the custody of the boy until he is 2 years old and the girl until she is 7 years old.

In Hanafi law the mother has custody of the boy until he is 7 years old and the girl until she attains puberty.

After that the custody is the right of the father (subject to exceptions abovementioned)

Child custody laws in India without divorce

Custody of a child under the age of 18 simply indicates which parent the child will live with physically. When one parent wins custody under the specific laws above mentioned, it does not imply that the other parent loses his or her parental rights to the children. The child custody legislation expressly specifies that they remain the natural guardians of the child irrespective of their marriage being annulled. In other words, the child's primary caregiver is the custodial parent, although the non-custodial parent retains the right to meet the child.

You may read Annulment of Marriage.

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