Divorce

Hindu Marriage Act, 1955 Dissolution of Muslim Marriage Act, 1939 Indian Divorce Act, 1869 Special Marriage Act, 1954

Divorce under various acts Divorce is the legal dissolution of marriage. Since India is a land of varied re ligious communities having their own marriage laws, the divorce procedure too va ries, according to the community of the couple seeking divorce. All Hindus as we ll as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1 955. The Muslim, Christian and Parsi communities, on the other hand, have their own laws governing marriage and divorce. Spouses belonging to different communit ies and castes can seek divorce under the Special Marriage Act, 1956. There is a lso the Foreign Marriage Act 1969, governing divorce laws in marriages where eit her partner belongs to another nationality. Divorce by Mutual Consent 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 b y mutual consent. In this case, estranged spouses can mutually agree to a settle ment and file for a no-fault divorce  under Section 13B of the Hindu Marriage Act 1 955. 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 mu tual 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. Procedure for Filing for Divorce 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. Kno wn as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconciliable difference s, 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 si x months is given between the two motions, so as to offer the estranged couple a dequate time to reconsider their decision of dissolving their marriage. After he arings from the husband and wife, if the judge is satisfied that all the necessa ry 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 shoul d have agreed, in their petition for divorce by mutual consent, are custody of c hild, 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 cou rt will no longer have the right to grant a divorce decree. But if the divorce p etition 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 con ditions 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 divorc e. Some of the grounds on which either spouse can file for a divorce in India ar

e: Adultery on the part of the spouse of the petitioner, or any other sexual relati onship outside marriage. Willful desertion or abandonment of the petitioner by the spouse, for a continuo us 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, wh ich 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 l awyer. The importance of having an efficient lawyer cannot be over-emphasized, i f one is to get through the complexities of the legal system in India. So whethe r a person is filing for divorce or contesting one, he/she should see that the l awyer is not only well-versed with laws related to marriage and divorce under th e relevant marriage act, but also has adequate experience in guiding his/her cli ent to the best possible divorce deal from the court. After the petitioner and his/her lawyer have decided on which grounds to file fo r divorce, a divorce petition is formally drafted and filed in the relevant cour t. The petitioner is required to provide his/her legal representative with photo copies 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 provid e all details of his/her marriage to the lawyer. This will not only include fact s related to when and where the petitioner and spouse got married, but also deta ils 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 l awyer, 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 va kalatnama is which a document giving the lawyer the authority to represent the pe titioner in court. After the petition has been received by the court, it will se nd 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, t he legal process of seeking a contested divorce will take its own course. Alimony 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 whol e family. And these consequences are both emotional and financial. The worst suf ferers of divorce are women, who are not only find themselves bereft of the mean s to acquire basic necessities like food, clothing and shelter, but are also lef t to take care of the children from a broken marriage. To protect their interest s, the Indian legal system has consistently tried to better the financial situat ion of women, by provisions of alimony. Alimony is the financial support that a spouse is required to provide an estrang ed partner during and after a divorce. Alimony is usually granted to women, sinc e they are traditionally homemakers, and thus find it difficult to support thems elves and their children after a divorce. However, due to the concept of equalit y 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 t ime of the divorce. Duration of marriage. The quantum and duration of alimony depends on how long th e couple had been married before filing for divorce. Spouses who have been marri ed 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 sho rter tenure, if the court thinks that the recipient can eventually become financ ially sound, with career advancement. Financial position of either spouse. If the divorce takes place between two part ies 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 us ually 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 expense s. Respective marriage laws. The terms and conditions of alimony, also vary from on e 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 th e 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 emotiona l trauma and legal complication, is child custody. This is because divorce entai ls 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 ch ild support. If the child is below five years, the custody is unanimously awarde d to the mother. In case of older children, the custody of a girl child is gener ally given to the mother, and that of the boy child to the father. Visitation ri ght is an important aspect of child custody, which specifies how frequently of t he 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 bring ing 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 chi ld or children post-divorce. However, like alimony rights, child custody and sup port 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 law yer in order to thrash out the details of child custody and child support. In ca ses of contested divorce, on the other hand, the receiving parent is best advise d to make a strong claim for child support, under the guidance of her lawyer. Fi nally, it is up to the court to specify the amount and duration of child support , where the divorce is being contested.