Every married couple begins their life envisioning the happiness and memories they will share in the future. What couples do not accept is the reality. When their happiness fades away, many couples debate whether or not to get divorced. In India, divorce is still considered as taboo. People do not even want to hear the word divorce and would rather stay in an unhappy marriage because of the society.
What is a Divorce?
A divorce is dissolution of marriage, in other words breaking of all ties with your partner by operation of law. The Hindu law regards marriage as an inseparable union between a man and a woman and more so regards it as a sacrament unlike the English law where it is a contract.
Getting a divorce is not as easy as it may sound. In India, divorce laws are connected with religion. Divorce among Hindus, Buddhists, Sikhs and Jains is governed by the Hindu Marriage Act, 1955 and for Muslims by the Dissolution of Muslim Marriage Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869.
Types of Divorce Pleas in India:
1) Mutual Consent
When husband and wife both agree to end the marriage by getting a divorce, the court considers a divorce with a mutual consent. However, for the plea to get accepted the couple should be separated for over a year or two years and need to prove that they cannot live together.
Joint petition for dissolution of marriage for a decree of divorce is presented to the Family Court by both the spouses on the ground stating that they have not been able to reconcile the differences and live together. Thus, have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more. This petition has to be signed by both the parties.
The duration of a divorce by mutual consent varies from 6-18 months, depending on the decision of the court.
Section 13B, inserted in the Hindu Marriage Act in 1976 to introduce divorce through mutual consent, provides for a total 18-months before a decree for divorce can be passed.
Under Section 13B(1), a divorce petition can be moved by a couple following a judicial separation of one year. This may be followed by another six months of waiting period under Section 13B(2) for getting a decree.
Supreme Court in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 has stated that provision of Section 13B(2) is not mandatory but directory. Apex Court has stated that, the courts can grant divorce after waiving of six months’ waiting period on being satisfied that the “waiting period will only prolong their agony” and that all efforts of conciliation have been futile. The courts, waiving of the cooling off period will also consider whether the estranged couple has settled all differences relating to alimony, custody of children etc.
2) Contested Divorce
A contested divorce is where one of the spouses does not agree on the legal separation and the matter needs to be sort by court. In totality, Section 13 of the Act provides for various grounds under which a spouse can file for Contested Divorce in India.
Grounds for Divorce in India
- Adultery-If a spouse, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse
- Cruelty- Cruelty as a ground for divorce means mental and physical torture. Physical torture includes wounds, medical reports proving cruelty. Mental torture is very difficult to prove as compared to physical torture. Some examples of cruelty are – False accusations of adultery, dowry demand, drunkenness, threat to commit suicide or incompatibility or temperament
- Desertion- Desertion means the rejection by one party of all obligations towards marriage. In simple words, abandonment of one spouse by the other without any reason or invalid reason and without the consent of the other. Desertion should have been for a continuous period of not less than 2 years
- Conversion- A Hindu marriage may be dissolved by a divorce on the grounds that the respondent has ceased to be a Hindu by conversion to another religion. In other words, when the other party has ceased to be Hindu by conversion to any other religion for example, Islam, Christianity, Judaism, Zoroastrianism, a divorce can be granted
- Presumption of Death- A divorce may be granted on the ground that one of the spouse has not been heard of as being alive for a period of seven years or more. This is a legal presumption of death which is based on English law of evidence
- Leprosy– If a spouse, has been suffering from a virulent and incurable form of leprosy
- Venereal Disease- if a spouse, has been suffering from venereal disease in a communicable form
- Renunciation of World- If a spouse has renounced the world and has entered a holy order
- Insanity- Under The Marriage Laws (Amendment) Act, 1976, Section 13(iii) petitioner may get a decree of divorce or judicial separation if the respondent has been experiencing consistently or irregularly mental turmoil of such a sort and so much that the petitioner can’t sensibly be required to live with the respondent
- Impotency- Impotency is a ground for matrimonial relief under all personal laws – Under the Special Marriage Act, 1954 it makes marriage void. Similar provisions are there under the Indian Divorce Act & Parsi and Muslim Marriage Acts. In all marriage acts, impotency can be a ground of annulment
3) No Fault Divorce
India currently does not have a no fault divorce law, also known as Irretrievable Breakdown in Marriage (IrBM) as grounds for divorce. There may be several couples who are separated due to lack of compatibility, other reasons than the grounds of contested divorce mentioned above, however, cannot be divorced due to the absence of this ground.
In a recent Bombay High Court judgement, divorce was not granted to a man whose wife left him and relocated to Canada along with their son in 2010. Court said there was no ‘cruelty’ or ‘desertion’ if the wife chose to live in a separate country for her career. In all such cases, IrBM can become a ground for judges to end dead relationships legally.
Should You End Bad Marriage Or Continue For Sake Of Society?
Many couples believe that staying in an unhappy marriages would benefit their children but what they do not realise is that it is only causing trouble and building a toxic household for the young minds. Daily fighting of parents can damage a child more. Parents can actually help their children grow and develop into happier individuals by getting a divorce rather than staying in an unhappy marriage.
Our society needs to accept the fact that not all marriages work out, and it is also not necessary that the marriage fell apart, because either of the two persons involved were bad.
Sometimes, people make hurried decisions and do not take time to get to know each other and get married at early age. Parents get their children married early and do not realise what it can lead to. However, even if couples marry in their late 30s or 40s, it is not necessary that they will be more mature. They could infact be rigid and not wanting to adjust to a new 24/7 lifestyle of their spouse.
People should accept the fact that not all marriages have a happy ending and it is okay to end a non- functional marriage.
Timelines for Contested Divorce
Given the number of cases that have piled up at Family courts supported with Gender Biased Laws, it is almost next to impossible, especially for Men, to get divorce if contested. Usually, it may take anywhere between 10-20 years or even more for your matter to land up in the top court. Most Men are advised to settle with one time alimony and get out of the marriage. The ones who can afford do so, however, the ones who cannot end up fighting ego battles spending thousands and lakhs of rupees towards litigation fees.
Child Custody is another concern for Men, as most of the times the same is awarded to mothers by default.
Disclaimer: This article is not a substitute for professional legal advice.
Author: Nandini Shah is a 3rd year Bachelors of Journalism student and currently working as an intern with MDO.
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