Act on Indian Divorce
The legal dissolution of a man and woman’s marriage is known as divorce. According to this rule, the court must receive a petition from either the wife or the husband before granting the separation. Following a divorce, the parties will divide their assets and debts, as well as decide on alimony payments, child custody arrangements, and visitation rights. The Christian couple should be knowledgeable of the divorce process in our nation before deciding to get a divorce.
Overview of the Indian Divorce Act
In 1869, a draft of the Indian Divorce Act was introduced into Indian law. The process and laws governing divorce in India vary depending on the couple’s community. As previously mentioned, the Indian Divorce Act, 1869 governs divorce among Christians, the Hindu Marriage Act, 1955 governs it for Hindus, Buddhists, Sikhs, and Jains, the Dissolution of Muslim Marriages Act, 1939 governs it for Muslims, the Parsi Marriage and Divorce Act, 1936 governs it for Parsis, and the Special Marriage Act, 1956 governs it for civil and intercommunity marriages. The State of Jammu and Kashmir is not covered by the scope of this divorce Act, however inhabitants of other states who reside in Jammu and Kashmir are still eligible for these guidelines and requirements.
Separation by Mutual Consent
The courts will take a divorce with mutual consent into consideration when the couple agrees to divorce. According to Section 10A of the Indian Divorce Act of 1869, the couple must have been apart for at least two years; all they need to prove is that they were not cohabiting during this time.
The couples ought to be divorced for more than a year.
The couple must be able to demonstrate their inability to cohabitate. Joint agreements about child custody, support payments, and property rights are required.
Maintenance or Alimony Issues
The spouses must come to an agreement on three different issues. Alimony or maintenance concerns are one of them. There is no minimum or maximum amount of maintenance mandated under divorce law.
Possession of the child
The child’s custody will be the second factor to be taken into account. Depending on how the spouses see things, child custody arrangements in a divorce with mutual consent may be shared, joint, or exclusive.
Real Estate Rights
The third is real estate. The couple must decide which portion of the land belongs to who (both movable and immovable property). The bank accounts must be divided into equal parts.
Length of Divorce
Depending on the court’s ruling, a divorce by mutual consent can take anywhere between six and 18 months to complete.
Separation from a spouse (Divorce without Mutual Consent)
Either the husband or the wife may submit a petition for the dissolution of marriage in accordance with the Indian Diverse Act. Below is a detailed explanation of the prerequisites before they can submit the petition:
Request from Husband
Any husband may file a petition with the District Court or the High Court requesting the dissolution of his marriage on the grounds that his wife has been having an extramarital affair since the marriage was solemnised. Such a marriage may be solemnised in accordance with the Christian Marriage Act, per this act.
What’s in the Petition
Each of these petitions must state the facts supporting the claim for the dissolution of the marriage in as much detail as the circumstances of the case permit.
Rejection of the petition
In the following situations, the court will dismiss the petition:
In the event that a petitioner’s evidence is rejected by the court or the petitioner’s case cannot be established
If the court finds that the petitioner was an accessory to, or conspired with, the conduct of the alleged form of marriage, or the adultery of the other party to the marriage, or has tolerated the adultery complained of, and the court is not satisfied that the alleged adultery has been perpetrated,
The court will dismiss the petition if it was filed in coordination with either of the respondents or any of the aforementioned instances.
When a petition under this statute is denied by the District Court, the petitioner may file a similar plea with the High Court.
A decree for ending a marriage
In the event that the court is convinced and the petitioner’s proof is convincing, the court will issue a decree dissolving the marriage. The Court will not be required to issue such an order in the following circumstances, per this act:
If it concludes that the petitioner committed adultery,
If the petitioner was guilty of presenting or pursuing the petition with undue delay,
When one spouse in a marriage is nasty to the other
In the event that one has purposefully or willingly departed the other party before the alleged adultery and without good justification,
In the event of such blatant disregard for the treatment of the other party that results in adultery
Confirmation of the dissolution decree
Every judgement of divorce entered by a District Judge is subject to confirmation by the Supreme Court.
confirmation from the High Court
In order to finalise a ruling for divorce, the High Court will review the cases. If a court has three judges, the majority opinion will be followed, or If there are two judges on a court, the Senior Judge’s judgement shall be considered. The High Court has the authority to order further investigation or the gathering of more evidence if necessary. The District Judge will certify the findings of the investigation and the new evidence to the High Court, and the High Court will issue an order approving the divorce decision.
Application for Nullity Decree
Any husband or wife may file a petition with the District Court or the High Court, pleading for the annulment of their union. Any of the following will result in a decree of nullity:
At the time of the marriage and the filing of the lawsuit, the respondent was crucial.
The couple’s degree of affinity or consanguinity is within the limits.
If at the time of the marriage either party was insane or stupid,
if either party’s ex-spouse was still alive at the time of the ceremony and the marriage with her or he was still legally binding at the time.
Nothing in this clause will alter the High Court’s ability to declare a marriage null and void if either party’s consent was gained illegally or under duress.
Confirmation of the Nullity Decree
The High Court must confirm any District Judge determination that a marriage is null and void.
Property Settlements
The Indian Divorce Act states that a married individual has the right to occupy the property regardless of whether a divorce petition has been filed. While the property may be given to one or both spouses in the divorce settlement, the argument is much stronger if that individual is caring for children. Up until the court’s ruling, both the woman and the husband are permitted to remain on the property.
Parenting time
In a mutually agreeable divorce, the courts will typically respect the parents’ choice; but, they will be expected to consider what is in the child’s best interests. As mentioned above, non-working moms are frequently granted custody of their children, but husbands are expected to provide financial support. In the event of a contentious divorce, the courts will assess the ability of the father or mother to be a parent to the kid.
Divorce under Hindu Marriage Act, 1955
Any marriage may be ended by a divorce order if the other party:
(1) had voluntary sexual relations with anybody other than his or her spouse after the marriage was solemnised;
A petitioner is eligible for a divorce even after just one sexual encounter with someone other than their spouse.
(2) has cruelly abused the spouse after the marriage was solemnised;
It describes situations in which the other party’s actions give rise to a reasonable fear in the petitioner’s mind that living with the other party will be hurtful or damaging.
It’s also important to remember that if you’re filing for divorce due to cruelty, you shouldn’t have supported the behaviour.
By putting the other party in the same situation as before, condonation means to forgive the other party and repair the marriage.
(3) has abandoned the spouse for a continuous period of at least two years prior to the petition’s presentation;
It means when the other party has abandoned the petitioner without reasonable cause and without the consent or wish of the petitioner. Such abandonment must be abandonment of or disregard of duties and obligations of married life. Such abandonment must be with intent to bring cohabitation to an end permanently and that too continuously during a period of two years.
(4) has ceased to be a Hindu by conversion to another religion;
(5) has been incurably of unsound mind; or the other party has been suffering continuously or intermittently from mental disorder; that such mental disorder is of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the other party;
(6) has been afflicted with a severe and fatal form of leprosy;
(7) has been afflicted with an infectious form of venereal illness; or
(8) has given up the world by joining any holy order; This indicates that the other person has permanently discarded all possessions and worldly worries.
(9), by those who would have known of the party naturally had they been living, has not been heard of as being alive for a period of seven years or more.
According to Section (IA), either spouse may file for divorce if one of the following conditions is met: I there has been no return to cohabitation as between the parties to the marriage for a period of one year or longer following the entry of a judgement of judicial separation in a proceeding to which they were parties; or
(ii) That a year or longer has passed since the issuance of a decree for the restitution of conjugal rights in a proceeding to which they were parties without any restitution of conjugal rights as between the parties to the marriage.
In the case of the wife, she is additionally entitled to a divorce decision for the following two reasons in addition to the aforementioned grounds:
1. that the spouse has committed rape, sodomy, or bestiality since the marriage was solemnised;
2. that the parties’ cohabitation has not resumed for at least a year following the entry of a decree or decision against the husband awarding support to the wife under section 18 of the Hindu Adoptions and Maintenance Act of 1956 or in a procedure under section 125 Cr.P.C.;
3. that her marriage was consummated before she was 15 and that she renounced it after reaching that age but before turning 18
The circumstances under which Muslim women in India may obtain divorces are covered by the Dissolution of Muslim Marriages Act, 1939. The Muslim Personal Law (Shariat) Application Act, 1937, which addresses Muslim marriage, succession, and inheritance, is referenced in both its title and substance. The 1939 statute (Act No. 8 of 1939) was passed to codify and make clear Muslim Law’s rules regarding women who were married according to Muslim Law’s ability to file for divorce.The woman may file for divorce in accordance with Muslim law, either extrajudicially or judicially. The Dissolution of Muslim Marriages Act of 1939 governs the legal process. The act specifies the divorce grounds.