Divorce: Types, Concept And Grounds

Published on 05 May 2017 by Team

Divorce, not only causes physical trauma to the couple but also causes mental trauma and add to this, it can also be a long-awaited and costly affair in India. Unlike other countries, Indian law connects divorce with religion, like if you are Hindu, you have to fulfil the grounds and requirement of Hindu Marriage Act, 1995. Same with other religion like Muslim, Parsi, Christian, there are different acts to deal with the divorce of marriages under these religions.

To Know about divorce under Muslim Person Law, please readMuslim Divorce Type and Procedures.

TYPES OF DIVORCE

A couple can get a divorce by mutual consent, or either spouse may file for divorce without the consent of the other.

Divorce by Mutual Consent

Both husband and wife can seek divorce mutually in the court of law. However, the following conditions need to be fulfilled to get a mutual consent divorce.

  • living separately for a period of one year or more
  • mutually agreed that the marriage should be dissolved

Procedure for Mutual Consent 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 having the competent jurisdiction. The petition must contain a joint statement by both the spouses that it is impossible for them to live together and should be given divorce by the court. The duration of a divorce by mutual consent varies from six to 18 months.

After filing the first petition, 6 Month period is given to the spouses to reconsider the decision of divorce. If parties still want the divorce, they carry the motion of the second petition seeking the divorce by mutual consent. The court will hear both the parties and 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.

But before granting the decree, a judge has to take into account the following issues on which consent of both the parties is required:

Issue Of Maintenance

Generally, maintenance cases involve wife but as per law, the right of maintenance extends to any person economically dependent on the marriage. While deciding the duration and amount of alimony, certain factors must be taken into account like Age of the spouse, Duration of marriage, The health of both spouses, Child Custody.

Settlement of Property Matters

 If you are married, irrespective of the fact that a divorce petition has been filed, you have the right to occupy the property. While the property may be granted to one or the other spouse in the divorce settlement, until this is done, both spouses have the right to remain on the property.

Child Custody

Court usually sees the best interest of child while giving the child custody. In a contested divorce, the courts will examine the ability of the mother or father to be a parent to the child, for example. Money is not usually a matter that is considered. Non-working mothers are regularly given custody of their children, but fathers are expected to provide financial support. It is considered as joint custody.

Voluntary Mutual Consent

It is the duty of the court to satisfy itself that consent for divorce under section 13B has not been obtained by force, fraud or undue influence. Living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period.

Contested Divorce

Under contested divorce, either of the spouses can file a divorce petition through a divorce lawyer in India. Some grounds are given in Hindu Marriage Act which needs to be proof by the party who is seeking a divorce. Though, these grounds do not extend to all religions. They are:

  • Cruelty: It can be both physical or mental agony.
  • Adultery: In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
  • Conversion: In case other party converts his or her religion.
  • Mental Disorder: If the mental illness is to such an extent that the normal duties of married life cannot be performed.
  • Communicable Disease: If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhoea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.
  • Renunciation of the World: If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce.
  • Presumption of Death: If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.

Along with the above conditions, either party to a marriage may also get a one-sided divorce on any of the following grounds too-

  • There has been no resumption of cohabitation as between the parties to the marriage for a period one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.
  • There has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

Rights Given To A Wife Only For Divorce

A wife under the Hindu Marriage Act, 1955, can contest for divorce without mutual consent on the following grounds-

  • The husband had married again or that any other wife of the husband married before the contented marriage was alive at the time of the solemnization of the marriage of the petitioner, provided that, in either case, the other wife is alive at the time divorce is contested.

The Necessary Ingredients of The Section Are:

  1. Having a husband or wife living.
  2. Marries again in any case.
  3. Such marriage should be void.
  4. By reason of its taking place during the life of such husband or wife.
  5. The husband has, since the solemnization of the marriage, had been guilty of rape, sodomy or bestiality.

Annulment Of Marriage

Annulment refers only to making a voidable marriage null means if the marriage is void from the very beginning. Divorce can be filed within a year by way of annulment if there are exceptional circumstances which decreed very rarely. You can consult the best divorce advocates in India to get your marriage annulled.

The grounds for a marriage annulment may vary according to the different legal jurisdictions, but are generally limited to fraud, bigamy, blood relationship and mental incompetence including the following:

  1. Either spouse was already married to someone else at the time of the marriage in question;
  2. Either spouse was too young to be married, or too young without required court or parental consent. (In some cases, such a marriage is still valid if it continues well beyond the younger spouse's reaching marriageable age);
  3. Either spouse was under the influence of drugs or alcohol at the time of the marriage;
  4. Either spouse was mentally incompetent at the time of the marriage;
  5. If the consent to the marriage was based on fraud or force;
  6. Either spouse was physically incapable to be married (typically, chronically unable to have sexual intercourse) at the time of the marriage;
  7. The marriage is prohibited by law due to the relationship between the parties. This is the "prohibited degree of consanguinity", or blood relationship between the parties. The most common legal relationship is 2nd cousins; the legality of such relationship between 1st cousins varies around the world.
  8. Prisoners sentenced to a term of life imprisonment may not marry.
  9. Concealment (e.g. one of the parties concealed a drug addiction, prior criminal record or having a sexually transmitted disease).

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