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Rediff.com  » Getahead » Divorce: How to go about it and what the law states

Divorce: How to go about it and what the law states

Last updated on: September 28, 2009 14:40 IST

It's unfortunate when any relationship suffers a complete, irreparable breakdown, but when your commitment to your partner is legally binding and has to be ended, you need to know how to go about it and protect your interests. In the first of two features on divorce and property laws related to it, Firoza Daruwala, a trainee associate lawyer with a leading Mumbai-based law firm, gives you the lowdown on filing for legal separation from your spouse.

If somebody might have told 32-year-old Charu Shah five years ago that she would be getting a divorce, she would have never believed it. The youngest of three siblings, Charu hailed from a typical, conservative Gujarati family where divorce was not an option. However today, seven years into her marriage she was meeting lawyers and carrying out formalities which would eventually lead to the dissolution of her marriage.

Divorce. The dreaded "D" word. Although divorces and failed marriages have been quite a norm in the western world, in India even today the divorce rates are quite modest. However, recent years are looking at a shift in attitude with a growing inclination of couples towards dissolving their marriage.

Breaking down of a marriage is in itself a painful procedure, without parties having to endure the scrutiny, stigma and long-drawn process that our legal system has to offer. Says 37-year-old Nita Chawla, another newbie divorcee, "Each aspect of your life is up for scrutiny during this period. It's an emotionally draining experience as it is without getting sucked into the red tape-ism of the legal system."

So what does one do? Where does one go to get at least a basic knowledge of what the road ahead holds?

Here we look at the fundamental laws that enable couples to obtain divorces with the minimum amount of drama and acrimony.

By mutual consent
In India, as is the case throughout the world, the formal process for divorce must be undertaken by approaching the courts. Parties who wish to obtain a divorce must petition for either a divorce by mutual consent (where both parties agree to sever ties) or a contested divorce (where one party is not agreeable). It is obvious that in case of divorce by mutual consent the procedure (relating to alimony, custody, etc) is much simpler and shorter whereas in the case of contested divorce, the process is more likely to become complicated.

In the event of a divorce by mutual consent (which is always preferred over a contested divorce), it can only be filed by the couple after they have lived separately for a period of at least one year. After such period has elapsed the couple may file a petition in the district court along with relevant affidavits jointly stating that they are unable to live together due to irreconcilable conditions. This process in legal terms is referred to as "First Motion Petition for Mutual Consent Divorce."

The court will take the First Motion Petition into consideration and direct the couple to appear before it again after a period of six months. This period of six months is given by the courts in case of a change of heart or for any attempts that the couple would wish to make towards reconciling. However, if the couple reappears before the court after the period of six months is completed and files the "Second Motion Petition for Mutual Consent Divorce" the court will hear from both parties and if it is satisfied that the consent of neither party has been obtained by fraud or coercion, grant the divorce.

It is necessary to note that if the couple fails to appear in court after the period of six months and not later than 18 months from the date of First Motion, the petition becomes null and void and the process starts all over again. Also, at any point within the six-month period either of the spouses may withdraw his or her petition. A divorce decree may also be passed sometimes before the completion of the six month term if all mandatory requirements are complied with.

Contested divorce
In the case however of contested divorce, the rules change. A distinctive feature of Indian law in case of contested divorce is that the rules for divorce differ based upon the religion of the couple wishing to obtain a divorce. This means that people following different religions are subject to different rules. The four major religions in India are as follows:

  • Hinduism
  • Islam
  • Zoroastrianism
  • Christianity

Hinduism
Hindus are governed by the provisions of the Hindu Marriage Act, 1955. In order to obtain a divorce under this Act, either party may present a petition for divorce based upon the following grounds:

  • Adultery
  • Cruelty
  • Desertion for a continuous period of not less than two years
  • Conversion
  • Leprosy
  • Unsoundness of mind
  • Communicable venereal disease
  • Missing for seven years or more
  • Renouncement of world by joining any religious order

Islam
Muslims are primarily governed by the provisions of two laws: The Dissolution of Muslim Marriage Act (1939) and the Muslim Women (Protection of Rights on Divorce) Act (1986). A Muslim husband can divorce his wife without any reason merely by pronouncing the word 'talak' thrice, whereas for a Muslim woman certain conditions need to prevail to obtain a divorce. Thus a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of marriage based upon the following grounds:

  • Imprisonment of husband for a period of seven years or more
  • Failure to perform marital obligation for three years, without reasonable cause
  • Failure to provide maintenance for two years
  • Whereabouts of husband unknown for four years
  • Impotency at time of marriage and continuing
  • Unsoundness of mind for a period of two years
  • Leprosy
  • Virulent venereal disease
  • Cruelty

Zoroastrianism
Parsis in India form a very small part of the population. However they have their own distinct laws with regards to dissolution of marriage. Parsis are thus governed by the provisions of The Parsi Marriage and Divorce Act (1936) and the Parsi Marriage and Divorce (Amendment) Act (1988). The following are the grounds for obtaining a divorce under the above Acts:

  • Wilful non-consummation of marriage within one year after solemnisation
  • Unsoundness of mind at time of marriage and continuing
  • Pregnancy at time of marriage by person other than spouse
  • Adultery, rape, bigamy or any unnatural offence
  • Cruelty
  • Voluntarily causing grievous hurt
  • Infection by venereal disease
  • Imprisonment of seven years or more for any offence as defined under the Indian Penal Code
  • Desertion for at least two years
  • Conversion

Christianity
The provisions of the Indian Divorce Act, 1869 provide the procedure for obtaining a divorce by Christians. A Christian husband may present a petition for dissolution of marriage on the ground that his wife has been guilty of adultery since the solemnisation thereof. A Christian wife may present a petition for dissolution of marriage based upon the following grounds:

  • Conversion
  • Remarriage after conversion
  • Adultery, rape, sodomy or bestiality
  • Incestuous adultery
  • Adultery along with cruelty
  • Adultery along with desertion for two years or more

Inter-community marriages
Inter community and civil marriages and divorces are governed by provisions of the Special Marriage Act, 1956 and Special Marriage (Amendment) Act, 1970. Subject to the provisions of this Act a petition for divorce may be presented by either spouse upon the following grounds:

  • Adultery
  • Desertion for not less than two years
  • Imprisonment of seven years or more for any offence as defined under the Indian Penal Code
  • Cruelty
  • Unsoundness of mind
  • Communicable venereal disease
  • Leprosy
  • Missing for seven years of more

A wife may also petition for a divorce upon these grounds:

  • Rape
  • Sodomy
  • Bestiality after solemnisation of marriage

Parties may also apply for divorce under the provisions of the said Act upon the following two grounds:

  • No resumption of cohabitation between parties to the marriage for a period of one year or more after passing of a decree for judicial separation in a case where they were parties.
  • No restitution of conjugal rights between parties to the marriage for a period of one year or more after passing of a decree for restitution of conjugal rights in a case where they were parties.
Firoza Daruwala