Divorce

Note: – This document is prepared in a generic aspect and only for a basic understanding about the divorce process in India, the facts mentioned here may vary from case to case. Please visit a lawyer to get the right information

The entire process of divorce that starts from coping up with emotional ups and downs to contesting for the long awaited divorce decree for several months is definitely a tough affair to get through. Before opting for a divorce you should be aware of the fact that a divorce procedure in India extents for almost a year and in some special cases of disputes the procedure may continue for years. The long distressing process of divorce will be easier for you to handle if you have a firm determination to get the divorce.

Due to existence of diverse religious faiths in India, the Indian Judiciary has implemented laws separately for couples belonging to different religious beliefs.

• The Hindu Marriage Act, 1955
• The Parsi Marriage and Divorce Act, 1936
• The dissolution of Muslim Marriage act, 1939
• The Parsi Marriage and Divorce Act, 1936
• The Special Marriage Act, 1956
• The Foreign Marriage Act, 1969

With the advancement of time and social awareness, several acts have been passed by the government to make the present day divorce procedure in India more progressive with respect to gender affairs and related sensitive issues. The Muslim Women Act 1986 was passed to protect the rights of Muslim women on divorce. For inter caste and inter- religion marriages the divorce laws are approved under The Special Marriage Act, 1956.

A contested divorce is filed on the grounds that are mentioned in the acts passed out separately for different Indian religions.

For a mutual divorce procedure in India, you can come to an agreement with your spouse where you may resolve all kinds of disputes regarding maintenance, custody of children and such.

Under Section 13B of the Hindu Marriage Act, a husband and wife can file a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about their inability to continue the marital relationship due to some unavoidable circumstances. Both the sides must voluntarily agree to dissolve the marriage.

The filing of a mutual divorce by both the husband and the wife is termed as ‘the first motion’. A couple can file for a second motion after a gap of six months. The six months time span is provided to the couple so that they get the time to reconsider their marriage.

A divorce decree can be passed before the completion of the six months term if all the mandatory requirements for the divorce are sufficed. If the divorce file is not withdrawn within eighteen months the court passes a divorce decree. Incase one of the sides withdraws his/her petition the court initiates to make an enquiry. If the concerned side disagrees to give the consent, the court holds no right to pass the divorce judgment.

Divorce is the legal dissolution of marriage. Since India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce. All Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955. The Muslim, Christian and Parsi communities, on the other hand, have their own laws governing marriage and divorce. Spouses belonging to different communities and castes can seek divorce under the Special Marriage Act, 1956. There is also the Foreign Marriage Act 1969, governing divorce laws in marriages where either partner belongs to another nationality.

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconciliable differences,they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.

However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an enquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties.

However, not all estranged couples agree on the desirability, grounds or the conditions of divorce. In such cases, one party files for divorce in the court, but the other contests it. This forms the case for the filing of a contested divorce. Some of the grounds on which either spouse can file for a divorce in India are:

Adultery on the part of the spouse of the petitioner, or any other sexual relationship outside marriage. Willful desertion or abandonment of the petitioner by the spouse, for a continuous period of two years in India, before the date of the filing for divorce. Infliction of physical and/or mental torture on the petitioner by the spouse, which may result in danger to life and health of the former. Sexual impotency or inability to perform sexual intercourse by the spouse of the petitioner. Insanity or suffering from incurable disease by the spouse of the petitioner.

The actual process of filing for divorce, however, begins with the hiring of a lawyer. The importance of having an efficient lawyer cannot be over-emphasized, if one is to get through the complexities of the legal system in India. So whether a person is filing for divorce or contesting one, he/she should see that the lawyer is not only well-versed with laws related to marriage and divorce under the relevant marriage act, but also has adequate experience in guiding his/her client to the best possible divorce deal from the court.

After the petitioner and his/her lawyer have decided on which grounds to file for divorce, a divorce petition is formally drafted and filed in the relevant court. The petitioner is required to provide his/her legal representative with photocopies of the following documents:

• Income tax statements for the last 2-3 years.
• Details of the petitioner’s profession and present remuneration.
• Information related to family background of the petitioner.
• Details of properties and other assets owned by the petitioner.

Here it may be mentioned that it is in the interest of the petitioner, to provide all details of his/her marriage to the lawyer. This will not only include facts related to when and where the petitioner and spouse got married, but also details on how problems cropped up in their marriage and the events that finally led to the petitioner seeking divorce. The more honest the petitioner is with the lawyer, the easier it will be for the latter to present a strong case for his/her client.

After the first petition for divorce has been filed, the petitioner can sign a “vakalatnama” is which a document giving the lawyer the authority to represent the petitioner in court. After the petition has been received by the court, it will send a notice and a copy of the petition to the estranged spouse of the petitioner, asking him/her to appear before the court on a specified date. From here on, the legal process of seeking a contested divorce will take its own course.

A divorce is not just a dissolving of a personal relationship. Since marriage is a social institution, its dissolution has far-reaching consequences on the whole family. And these consequences are both emotional and financial. The worst sufferers of divorce are women, who are not only find themselves bereft of the means to acquire basic necessities like food, clothing and shelter, but are also left to take care of the children from a broken marriage. To protect their interests, the Indian legal system has consistently tried to better the financial situation of women, by provisions of alimony.

Alimony is the financial support that a spouse is required to provide an estranged partner during and after a divorce. Alimony is usually granted to women, since they are traditionally homemakers, and thus find it difficult to support themselves and their children after a divorce. However, due to the concept of equality of the sexes and with increasingly economic independence of women, alimony can now be sought by either spouse, depending on the particular financial condition of each. Some of the factors which determine whether alimony is to be paid, how much and for how long are:

• Current financial support.Alimony is generally not granted by the court to the seeking party if the latter is already receiving financial support,during the time of the divorce.
• Duration of marriage.The quantum and duration of alimony depends on how long the couple had been married before filing for divorce. Spouses who have been married for more than ten years,for instance, may be granted lifelong alimony.
• Age of the recipient.Often the alimony granted to a younger spouse is for a shorter tenure,if the court thinks that the recipient can eventually become financially sound, with career advancement.
• Financial position of either spouse.If the divorce takes place between two parties with unequal resources, the higher-earning spouse is generally asked to pay a substantial amount as alimony, in order to equalize the financial condition of the spouses.Similarly,a spouse with very profitable financial prospects is usually asked to cough up the alimony amount.
• Health of spouse.If the seeker is in poor health,the court usually orders the other spouse to pay a high alimony to take care of the former’s healthcare expenses.
• Respective marriage laws.The terms and conditions of alimony, also vary from one personal law to another.Thus, whether and how much alimony the seeker will be granted, will depend upon the laws according to which he/she got married.
• Maintenance by public body.In exceptional conditions, the court can direct that the seeker be paid maintenance after divorce, by a public body.
• While in the Western countries, alimony is an obligation ordered by the court to the financially stronger spouse,in India it is not yet an absolute right of the seeker. Rather the awarding of alimony, its amount and duration are determined by the financial position and family circumstances of the respective spouses.
• Child custody. Another aspect of divorce which leads to a great deal of emotional trauma and legal complication,is child custody.This is because divorce entails the breakdown of the entire family. The child is not only separated from one of the parents, but may also lose other siblings and the wider extended family. The Hindu Marriage Act 1955, has exhaustive laws related to child custody and child support.If the child is below five years, the custody is unanimously awarded to the mother. In case of older children, the custody of a girl child is generally given to the mother, and that of the boy child to the father. Visitation right is an important aspect of child custody, which specifies how frequently of the estranged parent can meet his/her children.
• Child support is intricately linked to child custody, since it is most practical for the parent taking care of the child, to receive financial support for bringing up the child. In an overwhelming majority of divorce cases, it is the mother who is entitled to child support, since she is the primary caretaker of the child or children post-divorce. However, like alimony rights, child custody and support are also of subject to respective marriage laws of the estranged couple. In case of divorce by mutual consent,the parents should to take the help of a lawyer in order to thrash out the details of child custody and child support. In cases of contested divorce, on the other hand, the receiving parent is best advised to make a strong claim for child support, under the guidance of her lawyer. Finally, it is up to the court to specify the amount and duration of child support, where the divorce is being contested

While the procedure of getting a divorce in India is protracted enough, the situation gets further complicated if the marriage involves one or both non-resident Indians. The Indian legal system does not have very exhaustive divorce laws for marriages with or among non-resident Indians. However if a couple has got married in India under the Hindu Marriage Act 1955, the partners can file for divorce by mutual consent, like other Indians residing in the country. If both the spouses are residing in a foreign country, Indian law will recognize their divorce according to the laws of that country, only if it is by mutual consent. Even when the divorce is taking place abroad, it is always better to hire a lawyer who is aware of Indian divorce laws relating to non-resident Indians.

The whole procedure of going through a divorce in India is fraught with emotional, social and legal complexities. Besides being an exceedingly traumatic personal experience, partners, especially women, going through divorce face discrimination from their communities and even their families. Moreover, the long drawn-out litigation creates pressure on already stretched resources. However, there are several state agencies as well non-government organizations, which offer legal and emotional counselling and sometimes even financial aid, for spouses going through divorce. The important thing is to keep one’s courage through it all and continue to fight for one’s own well being.

In India, family courts can pass an interim order on maintenance to a spouse when s/he is separated from the other spouse with minor marital conflict, with a decree of judicial separation or if one of the spouses has applied for divorce. So, a lawsuit for divorce or judicial separation is not mandatory to apply for monthly maintenance.

Interim maintenance order remains valid till the permanent maintenance order is given by the court during the divorce.

The maintenance amount is calculated (approximately) by taking into account the total monthly take home income (ie. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount. Maintenance amount can also depend on who well the lawsuit has been fought by the advocates of both parties. The spouse with lesser income or no income can get a maintenance amount, which will make his/her complete earnings (plus maintenance) to be equal to 20% to 30% of the above total monthly income.

For example, if the husband has a take home income of one lac per month and the wife has a take home income of twenty thousand and they have no children in a marriage of 2 years, then the wife can theoretically get Rs.4000 as maintenance. How? The total take home income is one lac and twenty thousand and twenty percent of it comes to Rs.24,000. So, the woman gets Rs.4000 per month, so that her total income (her income+maintenance) becomes Rs.24,000.

If the couple have a child and the woman has the child custody, then she may get a maintenance amount of Rs.10,000 to Rs.16,000 per month so that her total income becomes Rs.30,000 to Rs.36,000 per month. Apart from that there can also be a judicial order defining the details on how the expenses for high studies of the child are shared. If the child decides to stay with the father after the age of 5, then the maintenance amount to the woman gets reduced accordingly.

If a woman’s income is at least half of her husband’s income, then most often she may not get any maintenance.

Similarly in a marriage of six months, if the wife is not working, but she has a masters degree and the husband has a monthly take home income of rupees one lac, then she may get a maintenance amount between Rs.8,000 to Rs.12,000 per month. Why? Because the argument would be that she has the capability to work and support herself.

Sometimes, the wife is also ordered to pay maintenace to the husband when the husband has a very small or no income compared to his wife’s income. In recent past, such orders are passed by high courts in Cuttack and Lucknow much to the annoyance of some feminists and media. But, laws have to be the same irrespective of gender. Is not it?

So, economically empowered women do not get maintenance or they may even have to pay maintenace to their husbands in case of divorce.

The maintance amount can get higher if its a long marriage. The parents can also claim maintenace from their grown up earning children. Even though, it is not clear, if they can claim maintenance from their earning daughters as today daughters have equal property inheritance rights.

It must be noted that neither the husband nor the wife can make claims on the property(residential or otherwise) of the other during divorce. So, some intelligent men make sure to get residential property registered only in their name, when they apply it through a bank loan. But, most other foolish men (being misguided by the builders) register the property in joint names, while its the man who pays fully for the bank EMIs. In case of marital conflict and divorce, the condition of such men becomes extremely miserable as they are already under a debt of rupees 20 lacs to 30 lacs and the wives make a claim on it apart from the maintenace they may get in the court. I know, some other men asking their working wives to pay for half of the property and loan so that the property can be registered in both names. These wives sometimes start complaining that he is asking dowry as they feel its only a man’s duty to provide for the family and the common expenses.

A woman or man stops getting maintenance from his/her spouse once s/he gets remarried unless they have a child. So, often women ask for a one time out of court settlement (or alimony) in stead of divorce. The man may agree to it or he can decline to it saying that he would prefer to give monthly maintenace.

For young guys (say techies within age group of 25 to 30) in marital conflicts, the maintenance amount given to their non working wives can be between Rs.2000. to Rs.7,000 (if they earn a salary between Rs.18,000 to Rs.50,000) provided they have no children.

So, often lawyers advise the women to file false dowry cases, so that the woman can force the guy to pay up a huge settlement/alimony (out of the court) in stead of going for a monthly maintenance. A monthly maintenance of Rs.3000 is in no way comparable to an one time alimony of Rs.10 lacs. But, the guy becomes bankrupt in such a situation as he ends up not only losing all his savings, but also takes loan from family and friends. He not only pays the alimony, but also ends up spending time in jail with his family, loses reputation, may be even the job, pays bribes to the police to stop harassing his family and the huge legal expense for bails and fighting the multiple cases. There is no way he can think of marrying again as he simply has no money to pay for even the marriage expenses. Of course, the painful experience can also keep him miles away from the very word marriage. On the otherhand, the woman’s dowry case is fought by the public prosecutor(ie. the lawyer from the State paided by the taxpayer’s money).

Its is alleged by some that the lawyers of both sides may also profit from this kind of a settlement. Its not at all surprising, if a husband finds himself cornered by his own lawyer, who keeps on pestering to go for a settlement, pay alimony, marry another girl (immediately) and live happily ever after.

The child is an important factor in a marital conflict, especially when the child is below the age of five. Fathers have natural right to child visitation. But, women can often evade the instructions/law and deny child visitation rights to the fathers. I have seen such fathers being allowed to meet their children once in a week or two just for an hour in the family court complex in Bangalore as in the police keeps dragging chained criminals into the vehicles in the background.