Divorce & Indian Law
The toughest thing to happen in someone’s life is a divorce, not only it brings intense emotional strains but legal issues and financial complication as well. What makes the whole process difficult is poor feedback, shoddy advice from family and friends, a hell lot of information available on internet. There are several divorce lawyers in Delhi who are a pro in handling divorce cases with providing a spine of steel to their clients. God forbid! If you are planning for a divorce with your other half then you must know what kind of divorces are allowed in Hindu law. Although, this article will throw some light on some general knowledge about a divorce, it will be good for you to discuss your issue with a divorce lawyer and clear your doubts well.
Divorce
Marriage is considered to be a junction of three important duties i.e. social, religious and spiritual. As per the Indian divorce laws, the two ways one can obtain divorce is either by mutual consent or without mutual consent. As the name suggests, in case of a mutual divorce one can have a full-fledged discussion with their estranged spouse to come to a settlement and file for a “no-fault divorce”. On the contrary, if someone is seeking a divorce without consent, then they can file a divorce on the grounds which they are entitled to under the particular Indian marriage act. Just so you know, Hindu, Muslim, Parsis and Christians have separate divorce laws. Although, filing for divorce in India Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955. Not to forget, special cases of the Inter-cast marriages have laws laid down for them under the Special Marriage Act, 1956. Delhi is house to India’s biggest court, i.e. the Supreme Court, so finding a good divorce lawyer would not be uphill battle.
Types of Divorce Petitions
There are two ways a couple can get a divorce, either with mutual consent or without the consent of the other. If you are not sure about how to move further you can consult a good divorce advocates in Delhi, make sure you take references before choosing one.
Divorce with Mutual Consent
As the name suggests, if a husband and wife both agree to a divorce, the courts will consider a divorce with mutual consent. Before filing the petition, the couple has to live separately for over a year or two as per the relevant acta and prove to the court that they cannot live together. This kind of divorce is relatively less expensive and not as traumatic as a contested divorce. Other matters like children’s custody, maintenance and property rights could be agreed to mutually. The husband and wife have to reach a consensus on three major aspects: alimony, child’s custody and property distribution. The duration of a divorce depends totally on the decision of the court and usually the court prefers to end mutual consent divorces sooner than later.
As per Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, before the beginning of court proceedings the couple should be living separately for at least one year. According to Section 10A of Divorce Act, 1869, it requires the couple to be separated for minimum two years. It is not necessary for the couple to live in different locations to prove they are living differently rather they only need to provide proofs that they have not been living together as husband and wife during this period.
Divorce Without Mutual Consent
Contradictory to mutual consent divorce, there are certain grounds on which the petition can be made in case of contested divorce. It isn’t as simple as a mutual consent divorce, one from the couple cannot simply ask for a divorce without stating a reason. Following are the reasons for which divorce can be filed but some of these reasons are not applicable to all religions.
1. Cruelty
Cruelty is not limited to physical but can be mental cruelty as well. According to the Hindu Divorce Laws in India, one spouse has sufficient ground for obtaining divorce due to cruelty if he/she has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful.
2. Adultery
In India, a man who commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence and the wife may file for divorce as a civil remedy. On the contrary, if a wife commits adultery, she is not eligible to be charged of criminal offence although the male adulterer can be prosecuted if the husband wants.
3. Renunciation of the World
An aggrieved spouse can also file for a divorce if their other spouse has renounced his/her married life and opts for Sanyasa.
4. Conversion
If the other spouse converts to another religion then divorce can be sought by a spouse. Particularly, for this reason one does not require passing any time (like one year or two year) before filing a divorce.
5. Mental Disorder
Divorce can be sought if the spouse has some mental illness leading to incapability of performing the normal duties required in a marriage.
6. Desertion
If one spouse is deserting the other without reasonable cause, it is a reason for divorce. However, the spouse who is abandoned should have a proof of how the other intends to desert him/her. As per Hindu laws, if the desertion lasts at least two continuous years then only the spouse can file a petition. However, Christians cannot file a divorce petition solely for this reason.
7. Communicable Disease
A divorce petition can also be filed if one the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy. The Hindu Divorce Laws allows the other party to obtain a divorce.
8. Presumption of Death
If one of the spouse disappears for a period of at least seven years, the person can legally be declared dead. The other spouse can obtain a judicial decree of divorce.
What really matters is the period before filing a petition, a one year or two year period can be the longest for two individuals who are trying hard to separate from each other. What we would suggest you to opt for a well-known divorce lawyer in Delhi even when you get a thought of divorce. A divorce is no easy business and is quite a traumatic experience occurrence in someone’s life and when it comes to India, this business is pretty expensive and stretched affair. In some cases, the whole affair can be a dirty one as well.