Hindu Divorce Laws

The legal issues involved in a divorce can be indefinitely large and complex but our Indian laws have been provided with the most straightforward procedure. The process will be completed depending upon the nature and circumstances of the case. The time taken to complete the entire process cannot be assessed but having an overall understanding on issues can make the process less complicated. India being a secular country, divorce laws also vary with a different religion. It is an excruciating process as getting a divorce in India is considered an inhibition that results from social custom not being sacred.

Divorce is a decision of a lifetime. In some cases, the couples go through a roller coaster before they arrive at that decision, either to get divorced or not to get divorced. However, there are some elements, which the couples have to settle down and process before they move for a divorce.

Please note that in India, Personal laws are based on religion in most cases. Therefore the specifications and grounds may vary, but the crux of the thought process would still remain the same. Various personal laws which include the Hindu Marriage Act, 1955 or the Indian Christian Marriage Act, 1872 etc. according to the religion are taken into consideration as the marriage was solemnized according to the customs given under the act. There are numerous things for the parties to consider before filing a divorce.

Counselling

Before any couple decides to move in the direction of a divorce, it is important that the couple consider the process of counselling. Counselling could help the couple understand the decision from a third-person perspective, make them go through the pros and cons of the process and the decision, and make the couple think if they are ready for it yet. I have seen several couples, who have abandoned the idea of divorce after counselling sessions with an experienced counsellor/lawyer. I have also witnessed several couples take a decision to proceed with the divorce, but only more stronger and cleared-minded. Counselling is something that can do miracles for couples, help them open up and clear the air.

What to consider before seeking a divorce?

The foremost stage is to initiate a process to file a divorce petition. Although pro se representation is allowed in law, hiring an advocate to take up your case would be vital. After hiring the professional, the intricacies, facts and circumstances of the case have to be discussed by the parties.

If it is a mutual divorce, the mutually consented petition can be invoked under Section 13 B of the Hindu Marriage Act, 1955 or Section 10 A of the Indian Divorce Act, Section 32 B of the Parsis Marriage or divorce Act, 1936 or Section 28 of the special marriage Act depending upon the religion of the parties. The Awareness of basic laws will also help the parties disclose the details of the case without hesitation. The process applicable would be different if the party seeks a divorce without mutual consent. In case of any one of the spouses seeking a divorce without mutual consent, Service of summons to the other spouse to inform her/him about the divorce petition is a mandatory step after knowing the nature of the case. The summons sent is to inform the opposite party to appear before the court in response to the divorce petition.

Other legal aspects involved

Despite personal laws in India, there are few grounds applicable universally to file for a divorce. In a mutual divorce, the court generally gives a “cooling period” of 6 months and directs the parties to attend few stages of counseling. The parties before applying for divorce should have been living separately for at least a year. The period of the process differs depending on the nature and intensity of the case. Section 13 of the Hindu Marriage Act, 1955[1] defines provisions regarding a valid divorce.

Understanding the Grounds for Divorce

A decree of divorce can be obtained from the court only by satisfying the grounds, depending on the personal law or religion of the clients. If either of the spouses has been held liable for Adultery, Cruelty (Both mental and physical), Desertion, Conversion, Leprosy, Insanity, Renunciation, Venereal disease, Presumption of death, then it would be a ground for divorce. Besides the above-mentioned grounds, there are certain grounds which are particularly available to wife.

· The wife can file for a divorce if the husband has remarried while his first marriage has not been dissolved. This ground does not apply to Muslim women as limited polygamy is allowed under Muslim law.

· When her marriage has been solemnized before the age of 15 and she has rejected after attaining the age of 18, the marriage can be dissolved

. When the husband is guilty of unnatural offences such as Rape, Sodomy and Bestiality.

Documents to be submitted along with Divorce Petition

Relevant documents that support the allegations mentioned have to submit to the attorney to initiate the petition or file for a divorce:

· A valid marriage certificate should be produced to prove the credibility of marriage.

· Address proof of both husband and wife should be produced

· Passport size photographs of the parties

· Medical certificate in case of any diseases or mental disorders. It can also be produced to prove that he/she did not have the disease.

· Proof of Identity

· Proof for age in case of disputes

· Documents such as sale deed and partition deed in case of property disputes

· Copy of legal notice if any

· Acknowledgement for the receipt of notice or returned cover

Which Court to file the Application for divorce ?

The divorce petition has to be filed in a court having territorial jurisdiction. The petition has to be filed in a district court/family court within the local limits of

· Where the marriage was solemnized

· Where the parties seeking divorce last lived

· The Permanent residence of any one of the spouses seeking divorce

Child Custody

Among the things to consider before filing a divorce, child custody is one of the controversial issues. Once the child attains a discernable age, the custody and the other related issues are decided as per their wishes. Until then, the mother is considered to be a custodial parent if she is able and willing to support the child. These issues relating the child custody has to be taken into consideration by the parties before the divorce. In circumstances that involve divorce and child custody, the child visitation rights to the non-custodial parent have to be decided and finalized if both parties have come to a compromise. This generally occurs when the spouses can maintain the status quo by living amicably but decides to separate due to a little disruption in their life. Petition for child custody or any declaration which concerns the appointment of a natural guardian of a minor child should be decided by the parties considering the best interest or welfare of the child [2]

Monetary compensation has to be given to the spouse who is not an earning member or is unable to support themselves without the help of the other party. A maintenance/Alimony related issue has to be discussed while considering a divorce. It depends on the salary and the financial status of the spouse and it can be decided to be settled in full or partly and continuously. The alimony related issues such as permanent alimony and interim alimony have to be decided considering different parameters which differ from case to case and concerning the stability and situation of the parties. The terms and conditions of the payment should also be scrutinized beforehand to finish the proceedings effectively.

Splitting of Assets in case of Divorce

In few cases, the spouses own property jointly. Hence before filing for a divorce, steps have to be taken to share the properties equally or settle the amount according to the needs of the parties. Issues regarding the outstanding loan on the property, House remaining a joint

property even after the separation, or retaining the property by any one of the spouses have to be discussed with the attorney to settle disputes accordingly. In cases where the property is purchased by one of the spouses and registered in the name of the other, there are higher chances of a dispute and those issues should be discussed amicably before seeking a divorce. Necessary original documents of the said property have to be produced for verification.

Joint Bank Accounts in case of Divorce

Spouses being joint account holders in a bank will make the divorce process a tedious one. Marital property is an asset that belongs to both spouses. These could be both movable and immovable properties which include bank accounts. A step for equitable division of accounts and finance among the spouses has to be considered before filing for a divorce. If it is a joint account, then the accounts have to be separated before starting legal action for divorce.

Litigation cost for Divorce

Though the cost of the court fee for filing a divorce petition is comparatively lower, the fee of an advocate varies with persons depending upon the grounds and strength of the case.

Finalizing Divorce Petition

The final draft of the divorce petition should be made with all the relevant information of the case narrated by the parties seeking divorce. After verifying the supportive documents and deciding the jurisdiction, the petitioner is required to sign the petition, legal documents with supporting affidavits, Vakalatnama and other related documents of the case. The process will be initiated once the divorce petition has been filed and numbered in the court having jurisdiction. To make the process quick and simple, a petition can be filed only for bare divorce without considering any other related disputes. If any conflict arises between the parties with any of the related issues mentioned above, separate petitions can also be filed getting separate orders for each issue.

Contested Divorce

Contested divorce is the result of a situation wherein one spouse decides to end the marriage when the other spouse hasn’t. Section 13 of Hindu Marriage Act, 1955 deals with contested divorce.

Grounds of contested divorce

A petition for a contested divorce can be filed only under certain grounds. They are

• Adultery
• Cruelty
• Desertion
• Insanity
• Renunciation of world
• Venereal diseases
• Presumption of death

Stages of Contested Divorce

Appointing a Divorce lawyer

It is important to appoint an advocate who has expertise in family law especially in Divorce matters. The Advocate can guide you throughout the process of divorce.

Filing a divorce petition

This is the initial process of divorce. The advocate after gathering all the required information and documents from the party seeking divorce will apply prepare the petition (with signature, affidavit, Vakalat nama, etc) and files it before an appropriate family court. It is followed by serving of notice to the other party.

Response from the other party

The other party has to respond in a reasonable time. If the respondent fails to file a counter in time. This stage is where the respondent files a counter. If the other party refuses to respond, you can ask for ex-parte order.

Reconciliation

The court tries one last time to make the marriage work before going for divorce proceedings. It can also suggest Divorce mediation.

Framing issues and producing evidences

Issues are the points of adjudication by the Family Court. Parties should give their evidence on these issues alone. Evidence is first filed by the petitioner. Cross-examination of the witnesses is done by the opposite party lawyer. Then Evidence of Respondent is done.

Final argument and Decree

The Case will then be listed for final arguments. After final arguments are heard by the Court, the case is listed for passing judgment. If the case is successfully proved, the decree of divorce will be granted.

Appeal

If any one of the parties is not satisfied with the decree, he/she can go for appeal to the High Court with jurisdiction over such family court and then to the Supreme Court. Generally it is appealable under Section 28 of Hindu Marriage Act, 1955, or Section 39 of Special Marriage Act, 1954.

[1] https://indiankanoon.org/doc/1644819/ [2] Nil Ratan Kundu vs. Abhijit Kundu AIR 2009 SC (Sup) 732)