The societal views regarding marriage and divorce in Indian society have significantly changed in the past few decades. A marriage was, for a long time, was as sacred and unbreakable, institution. But in present time various factors have propelled number of divorce filings throughout India. In India legally, there are two types of divorce, which are depended totally upon the consent of both parties: mutual consent divorce and contested divorce. Mutual consent divorce involves both parties consenting to it. Whereas contested divorce involves one party filing for divorce against the will or objection of the other party, which is based on specific legal grounds.
Legal Framework for Divorce in India
India’s legal system has different matrimonial laws related to religion, which creates a pluralistic legal system for divorce. The Constitution provides a right to equality and personal liberty, but almost all family and marriage matters may be subject to personal laws, which are created by each community. Each community has a different statute of codified customs that specifies the grounds and process for the dissolution of marriage.
1) Hindu Marriage Act, 1955
This Act applies to Hindus, Buddhists, Jains, and Sikhs, and allows for contested divorce, and mutual divorce. There are clear grounds for divorce that are listed including cruelty, desertion, adultery, conversion, mental disorder, and renunciation. If parties wish to pursue mutual divorce, the governing provision is found in Section 13B.
2) Special Marriage Act, 1954
This is secular law that applies to interfaith marriages and civil marriages. There are provisions for divorce similar to the Hindu Marriage Act but without the religious connection. This Act applies to all Indian citizens regardless of faith, and mutual divorce is governed by Section 28.
3) Muslim Personal Law (Shariat) Application Act, 1937
Muslims can secure divorce through extrajudicial methods such as talaq, khula and mubarat or using court under Dissolution of Muslim Marriages Act, 1939. With regard to divorce, the function is more traditional than codified.
4. Christian Divorce Act, 1869
This Act governs Christians in India and allows divorce based on the following fault grounds; Adultery, Cruelty, and Desertion.
5. Parsi Marriage and Divorce Act, 1936
In many ways divorce in the Parsi community is the same: divorce has both mutual and fault-based grounds.
This fragmented legal structure can create procedural and consistently complicate interpretations especially in inter-caste or inter-faith marriages. Increased legal literacy and perhaps uniform civil law reform will be useful.
Mutual Consent Divorce
A. Definition and Concept
A mutual consent divorce is a civil and much smoother way of terminating a marriage where both spouses believe that their relationship has suffered an irretrievable breakdown. A mutual consent divorce is governed by Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954. The mutual consent divorce is not lodged in an adversarial format as litigation is and recognizes that both parties mutually conclude that they no longer wish to live together as husband and wife.
B. Necessary Conditions
In order to file or initiate a mutual consent divorce the parties must meet the following legal requirements:
- The parties must have been married for at least one year.
- The parties must have been living separately for some continuous period (not necessarily under different roofs but without sexual relations).
- The parties must agree that the marriage is a failure and needs to be dissolved.
C. Procedure
The procedure is broken down into two stages:
- 1. First motion petition – A joint petition is filed in family court with both parties’ affidavits. Here, the Court takes statement records from both parties, and may (or may not) try to reconcile the parties.
- 2. Cooling-off period – After the filing of the joint petition, there is legally mandated six-month cooling-off period to think about their choices. However, recently in the case Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that this period could be dispensed when the parties exhibit irretrievable breakdown of the marriage.
- 3. Second motion petition – After the cooling-off period has passed, the parties must reappear in court, confirming the agreement to dissolve the marriage. The court then issues final decree of divorce.
- 4. Time and Costs: If uncontested, it could take 6 to 18 months to complete a mutual divorce and costs significantly less than traditional divorce, depending upon law firm fees, the city you live in, and paperwork involved.
Benefits
- Faster, more cost effective, simpler process, and not an emotionally taxing process
- Preserves party dignity and privacy
- Decreases financial strain and less fighting in courtroom
- Beneficial for couples with children, no drawn-out custody battles
- Most cases are concluded through mediation, (enables amicable separation), and saves time in getting all parties through process
In conclusion, a mutual consent divorce is an efficiently legal option; agreeing in a ceremony of sorts to endure the divorce process, shows progressive change to autonomy and mutual respect in family law in India.
Contested Divorce
A. Definition and Concept
A contested divorce is when one spouse wants to dissolve the marriage, but the other spouse does not agree to it, or when the spouses do not agree on any of the important issues such as custody of children, alimony, or split of property. A contested divorce is adversarial. One spouse is the petitioner to start the divorce and has to prove that the other party committed a matrimonial offence or satisfy grounds for divorce as per the laws of marriage. In India, contested divorce proceedings start pursuant to Section 13 of the Hindu Marriage Act, 1955 and similar provisions in various other personal laws.
B. Grounds for Contested Divorce
The following are the grounds where contested divorce is commonly granted:
- Cruelty (physical or mental cruelty)
- Adultery (having sexual relations outside marriage)
- Desertion (desertion without just cause for a period of more than 2 years)
- Mental disorder (the marriage cannot be consummated or cohabitating is not reasonable)
- Conversion without consent (conversion to a different religion when spouse did not consent)
- Renunciation of the world (for example, becoming a sanyasi)
- Not heard of as alive for seven years
There will be some variance to these grounds through the different laws of marriage based on religion, but generally they all consider the concept of irretrievable breakdown.
C. Procedure
- Filing a Petition: The wronged spouse will file a petition for divorce asserting that there are valid grounds.
- Notice to the Other Party: The other party will be served a notice of the court action; the respondent has the right to a written response.
- Evidence and Examination of Witnesses: Then both the parties will present evidence which consists of documents and witnesses in support or defense of the allegations.
- Assessment for Reconciliation: The court will first try to resolve matrimonial issues by the way of mediation or by sending the couple for counseling.
- Final Order: At last, after reviewing the evidence, the court will issue a decree of divorce; if not, it may dismiss the petition.
D. Timeline and Cost
The contested divorces take longer time as compared to mutual divorces. Contested divorces may take 2 to 5 years or longer, which totally depends on the complexity of the case and backlog in the courts. Resource commitment invests considerable wealth and resources into multiple hearings, documentation, and lawyer fees.
E. Difficulties and Consequences
- High emotional and psychological burden
- Publicly airing private disputes
- Allegations can tarnish person’s reputation and relationship with others
- Protracted period of not knowing, especially with children involved
- Potential misuse of procedures (misleading claims of cruelty, dowry harassment)
Even with the burdens, contested divorce is imperative when reconciliation is unattainable, and mutual consent cannot be achieved. It means that justice still exists even in situations of great dispute.
Role of Mediation and Counseling
Over the past few years, Indian courts have recognized the importance of mediation and counseling to resolve marital disputes. Mediation allows couples to explore issues without presenting a case in a non-adversarial environment with a neutral facilitator. Mediation is intended to allow parties to reach a settlement that is acceptable to both parties, they can choose to go back to a healthy marital relationship or to get divorced in a civil way.
Some Indian family laws, such as the Family Courts Act, 1984, require courts to encourage parties to look for reconciliation first before litigation. Most family courts have in-house counselors and court-annexed mediation centres in order to facilitate this process. Court-annexed mediation and yardstick counseling can help transform contested divorces into mutual consents divorces (which is better for both parties in terms of time, cost, emotional turbulence etc.)
Mediation may address all sensitive issues of: child custody, visitation rights, support or maintenance and division of property. Mediation has been described as a forum where emotions can be dealt with in a constructive manner and future plans are made that take the interests of both parties into consideration.
Judicially endorsed or mandated mediation particularly since the Supreme Court encouraged mediation in its judgments, such as K. Srinivas Rao v. D.A. Deepa (2013) has been shown to assist the dispute resolution process by avoiding lengthy litigation and allowing parties to jointly develop solutions. Mediation may not only be seen as a legal process, but a significant opportunity for couples in conflict to resolve their differences by re-establishing communication; ultimately allowing them to constructively make their own decisions, privately, respectfully and constructively.
Issues Involved in Divorce Proceedings
A divorce typically terminates the marriage. However, divorce proceedings in India raise a number of legal issues beyond the formal end if the marriage that can complicate the divorce itself and lead to considerable legal and emotional tensions. The most common legal disputes or issues include custody of children, the determination and payment of alimony, and division of property – each issue has legal norms and standards that must be considered by both spouses and, if necessary, the courts.
Child Custody
The legal standard used in India to determine whose custody is in the child’s best interests is the “best interest of the child” standard. In determining child custody matters, courts will grant:
- Sole custody to one parent,
- Joint custody to both parents, or
- Visitation rights to the non-custodial parent.
Legal guardianship of a child is clearly established by the Guardians and Wards Act, 1890, and family courts will consider other legal realities such as emotional, educational, and financial support.
Alimony or Maintenance
Any spouse in a divorce action may seek that a court orders maintenance for them, but, usually, only women seek financial support as maintenance. The law regarding maintenance derives from various statutes:
- Section 125 of the Criminal Procedure Code (CrPC) – that provides for a minimum right to maintenance
- Hindu Adoption and Maintenance Act, 1956
- Protection of Women from Domestic Violence Act, 2005
When awarding any maintenance or lump-sum alimony, courts consider what the spouse seeking maintenance can reasonably expect as a percentage of the marital household income based on, among other issues:
- The spouse’s financial capacity,
- The spouse’s lifestyle before the separation,
- The spouse’s age, life expectancy, and health, and
- the length of the marriage.
Distribution of property
While, in some parts of the West, it is common to follow an automatic community property regime, distinctions around property rights are based on ownership titles (the particulars of which will need to be determined in your jurisdiction), as well as judicial discretion under laws like Section 27 of the Hindu Marriage Act, which deals specifically with property that is acquired together.
False allegations and misuse of law
There has been a growing body of concern about the misuse of protective laws, including Section 498A of IPC (cruelty by husband or relatives). While there is demonstrable use for these protective laws to protect intended rights, courts have warned jurisdictions concerning misuse and weaponizing these provisions in divorce battles, and instead of protective access courts need to balance adjudication, with articulated measures of how to obtain equitable and just results.
All ancillary concerns normally make the divorce process more complicated, emphasizing the importance of early mediatory mechanisms, and determining timely legal advice.