INTRODUCTION
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In
India marriage has always been considered a sacrament. The husband and
wife are considered as one in the eyes of law. The legal consequences of
marriage that follow add to the sanctity of this relationship. Marriage
legally entitles both the persons to cohabit; the children born out of a
legal wedlock are the legitimate children of the couple; the wife is
entitled to maintenance during the subsistence of marriage and even
after the dissolution of marriage and many more.
The benefits of marriage come with a lot of responsibilities. The marital obligations towards the spouse, towards the family, towards the children and towards the marital house are an inseparable part of the Indian marriage. To avoid the obligations of a traditional marriage and on the other hand to enjoy the benefit of cohabiting together, the concept of live in relation has come into picture. Live in relationships provide for a life free from responsibility and commitment which is an essential element of marriage. The concept of live in relationships is not new to the Indian society, the only difference is that earlier people were hesitant in declaring their status may be due to the fear of the society but now the people are openly in this kind of relationship. |
WHAT IS LIVE IN RELATIONSHIP
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A
living arrangement in which an unmarried couple lives together under the
same roof in a long term relationship that resembles a marriage is
known as a live- in-relationship. Thus, it is the type of arrangement in
which a man and woman live together without getting married. This form
of relationship has become an alternate to marriage in metropolitan
cities in which individual freedom is the top priority amongst the youth
and nobody wants to get entangled into the typical responsibilities of a
married life.
This form of living together is not recognized by Hindu Marriage Act, 1955 or any other statutory law. Wile the institution of marriage promotes adjustment; the foundation of live in relationships is individual freedom. Though the common man is still hesitant in accepting this kind of relationship, the Protection of Women from Domestic Violence Act 2005 provides for the protection and maintenance thereby granting the right of alimony to an aggrieved live-in partner. |
LEGAL STATUS OF LIVE IN RELATIONSHIP
|
The
definition of live in relationships is not clear and so is the status of
the couples in a live in relationship. There is no specific law on the
subject of live in relationships in India. There is no legislation to
define the rights and obligations of the parties to a live in
relationships, the status of children born to such couples. In the
absence of any law to define the status of live in relationships, the
Courts have come forward to give clarity to the concept of live in
relationships. The Courts have taken the view that where a man and a
woman live together as husband and wife for a long term, the law will
presume that they were legally married unless proved contrary.
The first case in which the Supreme Court of India first recognized the live in relationship as a valid marriage was that of Badri Prasad vs. Dy. Director of Consolidation, in which the Court gave legal validity to the a 50 year live in relationship of a couple. The Allahabad High Curt again recognized the concept of live in relationship in the case of Payal Katara vs. Superintendent, Nari Niketan and others, wherein it held that live in relationship is not illegal. The Court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for the society but is not illegal. Again in the case of Patel and Others., the Supreme Court has held that live in relationship between two adults without marriage cannot be construed as an offence. It further held that there is no law which postulates that live in relationships are illegal. The concept of live in relationship was again recognized in the case of Tulsa v. Durghatiya. In the case of S. Khushboo vs. Kanniammal & Anr., the Supreme Court held that living together is a right to life. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal†in the eyes of law. In this case, all the charges against Kushboo, the south Indian actress who endorsed pre- marital sex and live in relationship were dropped. The Court held that how can it be illegal if two adults live together, in their words “living together cannot be illegal.†However in one of its judgment Alok Kumar vs. State, the Delhi High Court has held that live in relation is walk in and walk out relationship and no strings are attached to it. This kind of relationship does not create any legal bond between the partners. It further held that in case of live in relationships, the partners cannot complain of infidelity or immorality. Again giving recognition to live in relationships, the Supreme Court in the case of D. Velusamy v. D. Patchaiammal has held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill some basic criteria. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’. It also held that if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’. The court made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for ‘palimony’, a relationship must comply with certain conditions, the apex court said. The following conditions were laid down by the apex Court:
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RIGHTS OF A FEMALE IN LIVE IN RELATIONSHIP
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In
June, 2008, it was recommended by the National Commission for Women to
the Ministry of Women and Child Development to include live in female
partners for the right of maintenance under Section 125 of Criminal
Procedure Code, 1973. The view was also supported by the judgment in
Abhijit Bhikaseth Auti v. State Of Maharashtra and Others. In October,
2008, the Maharashtra Government also supported the concept of live in
relationships by accepting the proposal made by Malimath Committee and
Law Commission of India which suggested that if a woman has been in a
live-in relationship for considerably long time, she ought to enjoy the
legal status as given to wife. However, recently it was observed that it
is divorced wife who is treated as a wife in context of Section 125 of
CrPC and if a person has not even been married i.e. the case of live in
partners, they cannot be divorced, and hence cannot claim maintenance
under Section 125 of CrPC.
The partner of a live in relationship was first time accorded protection by the Protection of Women from Domestic Violence Act, 2005, which considers females who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. Section 2(f) of the Act defines domestic relationship which means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Thus, the definition of domestic relationship includes not only the relationship of marriage but also a relationship `in the nature of marriage’. In a case in Delhi, the Delhi High Court awarded Rs. 3000/- per month as maintenance to a maid who was in a live in relationship with her widower employer. In Varsha Kapoor vs UOI & Ors., the Delhi High Court has held that female living in a relationship in the nature of marriage has right to file complaint not only against husband or male partner, but also against his relatives. In the case of Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh, the defendant used to harass his live in partner for dowry. In this case the Supreme Court held that the nomenclature ‘dowry’ does not have any magical charm written over it. It is just a label given to demand of money in relation to a marital relationship. The Court rejected the contention of the defendant that since he was not married to the complainant, Section 498A did not apply to him. Thus, the Supreme Court took one more step ahead and protected the woman in a live in relationship from harassment for dowry. |
STATUS OF CHILDREN OF COUPLES IN LIVE IN RELATIONSHIP
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Since
there is no specific law that recognizes the status of the couples in
live in relationship, hence the law as to the status of children born to
couples in live in relationship is also not very clear.
The Hindu marriage Act, 1955 gives grants the status of legitimacy to every child irrespective of his birth out of a void, voidable or a legal marriage. But there is no specific law that raises any presumption of legitimacy in favour of children of live in partners. The future of children of live in partners becomes very insecure in case the partners step out of their relationship. There comes the requirement of a strong provision to safeguard the rights of such children. The must be provision to secure the future of the child and also entitling the children to a share in the property of both the parents. Again in the absence of a specific legislation, the Supreme Court of India took the initiative to safeguard the interest of children of live in couples. In the case of Bharata Matha & Ors. vs. R. Vijaya Renganathan & Ors., the Supreme Court of India has held that child born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn't have any claim as against Hindu ancestral coparcenary property. |
CONCLUSION
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Live-in relationships in India have still not received the consent of
the majority of people. They are still considered a taboo to the Indian
society. The majority of the people consider it as an immoral and an
improper relationship. At present there is no specific legislation that
deals with concept of live in relationship and the rights of the parties
and the children of the live in partners. It was a very unambiguous
concept until the Supreme Court of India took the initiative and
declared that live in relationship though considered immoral but it is
not illegal. Through its various decisions the judiciary has tried to accord legality to the concept and protect the rights of the parties and the children of live in couples. But at present there is a need to formulate a law that would clarify the concept. There should be clear provisions with regard to the time span required to give status to the relationship, registration and rights of parties and children born out of it. The utmost need of the hour is to secure the future of the children born to live in couples. The steps taken by the judiciary are indeed welcoming and pragmatic in approach. Though the live in relations provide the individuals individual freedom but due to the insecurity it carries it with, there needs to be a law to curtail its disadvantages. |
Showing posts with label Divorce. Show all posts
Showing posts with label Divorce. Show all posts
Status Of Live In Relationships In India
Muslim Women's Right to Maintenance
Muslim Women's Right to Maintenance
A divorced woman means a Muslim woman who was
married according to Muslim law, and has been divorced by, or obtained divorce
from her husband in accordance with Muslim law. -
Iddat period means in the case of a divorced woman -
- three
menstrual courses after the date of divorce, if she is subject to
menstruation; and
- three
lunar months after her divorce, if she is not subject to menstruation; and
- if she is pregnant at the time of her
divorce, the period between the divorce and delivery of her child or the
termination of her pregnancy whichever is earlier.
Rights
A Muslim woman at the time of divorce is entitled to the following
- A
reasonable and fair provision and maintenance to be made and paid to her
within the iddatperiod by her former husband;
- Where
she herself maintains the children born to her before or after her
divorce, reasonable and fair provision and maintenance to be made and paid
by her former husband for a period of two years from the respective dates
of birth of such children;
- An
amount equal to the sum of mahr or dower agreed to be paid to
her at her time of her marriage or at any time thereafter according to
Muslim law; and
- All
the properties given to her before or at the time of marriage or after the
marriage by her relatives or friends or the husband or any relatives of
the husband or his friends.
- An
amount equal to the sum of mahr or dower agreed to be paid to
her at her time of her marriage or at any time thereafter according to
Muslim law; and
- All the properties given to her before or at
the time of marriage or after the marriage by her relatives or friends or
the husband or any relatives of the husband or his friends.
Application
Where
- A
reasonable and fair provision and maintenance or the amount
of mahr or dower due has not been made or paid or
- The
properties referred to above have not been delivered to a divorced woman
on her divorce,
She or any one duly authorized by her may, on her
behalf, make an application to a Magistrate for an order for payment of such
provision and maintenance, mahr or dower or the delivery of
properties, as the case may be.
Where an application has been made by a divorced woman and the
Magistrate is satisfied that-
- her
husband having sufficient means, has failed or neglected to make or pay
her within theiddat period a reasonable and fair provision and
maintenance for her and the children; or
- the
amount equal to the sum of mahr or dower has not been paid; or
- that
the properties have not been delivered to her,
He may make an order, within one month of the date of the filing
of the application, directing her former husband to:
- Pay
such reasonable and fair provision and maintenance to the divorced woman
as he may determine as fit and proper having regard to the needs of the
divorced woman, the standard of life enjoyed by her during her marriage
and the means of her former husband or, as the case may be
- Make
an order for the payment of such mahr or dower or
- The delivery of such properties as referred to
above to the divorced woman
Failure to Pay
If any person against whom an order has been made fails without
sufficient cause to comply with the order, the Magistrate may
- Issue
a warrant for levying the amount of maintenance or mahr or dower
due in the manner provided for levying fines under the Code of Criminal
Procedure and
- May sentence such person, for the whole or
part of any amount remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one year or until payment if
sooner made, subject to such person being heard in defence and
the said sentence being imposed according to the provisions of the said
Code.
Failure to Maintain Herself After Iddat Period
Where the Magistrate is satisfied that
- A
divorced woman has not re-married and
- Is
not able to maintain herself after the iddat period,
He may make an order directing such of
her relatives who would be entitled to inherit her property on her death
according to Muslim law to pay such reasonable and fair maintenance to her as
he may determine fit and proper, having regard to the needs of the divorced
woman, the standard of life enjoyed by her during her marriage and the means of
such relatives and such maintenance shall be payable by such relatives in the
proportions in which they would inherit her property and at such periods as he
may specify in his order.
Where Parents are Unable to Pay
If any of the parents is unable to pay
his or her share of the maintenance ordered by the Magistrate on the ground of
his or her not having the means to pay the same, the Magistrate may, on proof
of such inability being furnished to him, order that the share of such
relatives in the maintenance ordered by him, be paid by such of the other
relatives as may appear to the Magistrate to have the means of paying the same
in such proportions as the Magistrate may think fit to order.
Where Divorced Woman has no Relatives
Where a divorced woman is unable to maintain herself and she has
no relatives as mentioned above or any one of them have not enough means to pay
the maintenance ordered by the Magistrate, the Magistrate may, by order direct
the State Wakf Board, functioning in the area in which the woman
resides,
- To
pay such maintenance as determined by him or,
Alimony in India
Alimony in India
Though alimony is a very important matter to deal with during the
litigation of a divorce case, the very perception of right to claim the
financial support for post divorce maintenance was not quite a familiar concept
among the Indian divorce seekers, especially women few years back. Since the
rate of divorce is increasing in India at a rapid speed, people are becoming
aware of the various details related to divorce laws. The era of feminist
campaigns and spread of education among women, have contributed to the growing
applicability of alimony in divorce cases.
The alimony or the spouse support is an obligation by laws in
almost all the countries of the world. It is expected that both the spouses
irrespective of gender must bear the maintenance support during and after
marriage.
The concept of alimony came in vogue due to the indissolubility
nature of marriage. According to marriage conventions, marriage is a sacred
union. Once the knot is tied, the duties and obligations of marriage are to be
carried out for the rest of the life even if there is mental disparity or
physical separation between the husband and the wife. The husband is bound to
take up the responsibilities for the maintenance of his wife in spite of
sharing an estranged relationship. As time changed, the laws and education empowered
woman and divorce came as a spontaneous solution for an unsuccessful marriage.
The present society treats men and women equal, as a result the
burden of alimony can now fall upon either side of the party depending upon the
financial circumstances of the spouses. Even though in the present age of
equality, both men and women are equal before the law, in practice men are more
liable to provide interim support to his ex- spouse during the litigation
procedure.
After divorce either of the spouse has the right to claim alimony.
Though not an absolute right, it can be granted by the court depending upon the
circumstances and financial conditions of both the spouses.
The following are the conditions depending on which alimony is
awarded by the court.
·
Alimony is generally not granted to the seeking spouse if he or
she is already receiving support during the time of divorce. Although the
rewarding of alimony can be revised in such events based on the arguments for
claiming the support.
·
In case of a contested divorce, often spouses fail to come to any
understanding regarding alimony. In such situations, the court takes up the
task of making a decision on the amount of alimony to be paid.
·
Only under certain compelling situations the court steps out to
change the already framed alimony. Sometimes the court might even hand over the
burden of paying for the maintenance to a public body.
The following are the
factors that influence the duration and amount to be paid as alimony.
·
The amount and duration of alimony generally depends upon how long
the marriage existed. Marriages that lasted more than 10 years are entitled to
be granted a lifelong alimony.
·
Age of the spouse is also taken into consideration while awarding
alimony. Normally a young recipient of alimony gets it for a short period of
time if the court thinks that he or she will soon be able to become financially
sound through prospective career excellence.
·
Alimony is also in vogue in order to equalize the economic
condition of both the spouses. The higher earning spouse is entitled to pay a
heavy amount as alimony.
·
The spouse who is projected to be enjoying a prosperous career is
liable to pay high alimony amount.
·
If one of the spouses is suffering from poor health, the other is
subjected to payment of high alimony to ensure proper medication and well being
of the other spouse.
The terms and conditions of payment of alimony in India vary from
one personal law to another. None of the Indian personal laws are spared from
criticism due to existence of laws in framing definite rules for granting
alimony.
NRI Divorce
NRI Divorce
There is a growing trend among Indian men and women to get married
to NRIs. The desire to settle in a foreign country for better quality of life
inspires Indians to tie knots with NRI brides and grooms. The statistics show
that 225 women from metros get married to NRIs every year, and out of this
almost 25 are either deserted by husbands or want to end their marriage due to
reasons of deception or hiding facts. In light of this it is very important for
Indians who get married to NRIs to be aware of laws related to NRI divorce.
Most of the Indian females are crazy about getting married to
NRIs. Their parents also want to marry off their daughters to foreign based
Indians who can provide a better quality of life and home. The parents are
ready to churn out any amount of cash for foreign based grooms. They spend huge
money in wedding as well as giving dowry to the boy’s family.
However, many of such marriages end in divorce. Some common
situations that lead to NRI divorce are:
· The NRI spouse already has another spouse, and in some cases
children also, settled with him abroad. In most of the cases the groom does not
take the bride with him leaving her behind with parents. But when the reality
is disclosed the girl’s family seeks divorce for their daughter.
· The NRI spouses inflate their possessions in the foreign country -
home, vehicle, high paying job, but actually might not be in a position to
support a family after marriage.
· The lifestyle of the NRI spouse is too much advanced for the
Indian spouse to keep pace with him or her. The NRI spouse feels that he or she
is not suitable as a partner and seeks divorce on the grounds of
incompatibility.
A person who has married an NRI, seeking divorce should be aware
of the basic laws related to NRI divorce.
· If both the spouses are Indians and have been married under Hindu
marriage Act, 1955 then they can seek divorce with mutual consent under section
13-B that provides for divorce by mutual consent.
· If both the spouses are residing in USA, or any other foreign
country, then they can seek divorce by mutual consent under the country’s
divorce laws related to foreign marriages. The Indian legal system will
recognize the divorce only if it is with the consent of both the parties.
There are not many laws that protect the interest of Indians
married to NRIs. However, due to rise in the number of troubled marriages among
Indians and NRIs, the government is initiating non- government organizations in
India and abroad which can guide Indian men and women who are married to NRIs
and residing abroad. They offer counseling, legal advice, and moral support in
the event of divorce and separation. Even if the divorce is taking place
abroad, it would be good to appoint an attorney who is proficient in dealing
with Indian divorce laws related to NRIs.
Grounds for Divorce in India
Grounds for Divorce in India
The secular mind-set of the Indian judicial system has initiated
proclamation of various personal laws based on different religious faiths.
Hindus, Christians and Muslims are governed under separate marriage acts and
grounds for divorce in India.
1. Grounds for Divorce under the Hindu Marriage Act, 1955
The following are the
grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.
Adultery – The act of indulging in any
kind of sexual relationship including intercourse outside marriage is termed as
adultery. Adultery is counted as a criminal offence and substantial proofs are
required to establish it. An amendment to the law in 1976 states that one
single act of adultery is enough for the petitioner to get a divorce.
Cruelty – A spouse can file a divorce
case when he/she is subjected to any kind of mental and physical injury that
causes danger to life, limb and health. The intangible acts of cruelty through
mental torture are not judged upon one single act but series of incidents.
Certain instances like the food being denied, continuous ill treatment and
abuses to acquire dowry, perverse sexual act etc are included under cruelty.
Desertion – If one of the spouses
voluntarily abandons his/her partner for at least a period of two years, the
abandoned spouse can file a divorce case on the ground of desertion.
Conversion – Incase either of the two
converts himself/herself into another religion, the other spouse may file a
divorce case based on this ground.
Mental Disorder – Mental disorder can become a
ground for filing a divorce if the spouse of the petitioner suffers from
incurable mental disorder and insanity and therefore cannot be expected from
the couple to stay together.
Leprosy – In case of a ‘virulent and incurable’
form of leprosy, a petition can be filed by the other spouse based on this
ground.
Venereal Disease – If one of the spouses is
suffering from a serious disease that is easily communicable, a divorce can be
filed by the other spouse. The sexually transmitted diseases like AIDS are
accounted to be venereal diseases.
Renunciation – A spouse is entitled to file
for a divorce if the other renounces all worldly affairs by embracing a
religious order.
Not Heard Alive – If a person is not seen or
heard alive by those who are expected to be ‘naturally heard’ of the person for
a continuous period of seven years, the person is presumed to be dead. The
other spouse should need to file a divorce if he/she is interested in
remarriage.
No Resumption of
Co-habitation – It becomes a ground for divorce if the couple fails to
resume their co-habitation after the court has passed a decree of separation.
The following are the
grounds for divorce in India on which a petition can be filed only by the wife.
·
If the husband has indulged in rape, bestiality and sodomy.
· If the marriage is solemnized before the Hindu Marriage Act and
the husband has again married another woman in spite of the first wife being
alive, the first wife can seek for a divorce.
· A girl is entitled to file for a divorce if she was married before
the age of fifteen and renounces the marriage before she attains eighteen years
of age.
· If there is no co-habitation for one year and the husband neglects
the judgment of maintenance awarded to the wife by the court, the wife can
contest for a divorce.
2. Grounds for Divorce under the
Dissolution of Muslim Marriage act, 1939
Based on the
Dissolution of Muslim Marriage Act, 1939, a Muslim woman can seek divorce on
the following grounds for divorce in India.
·
The husband’s whereabouts are unknown for a period of four years.
·
The husband has failed to provide maintenance to the wife for at
least two years.
·
The husband has been under imprisonment for seven or more years.
·
The husband is unable to meet the marital obligations.
·
If the girl is married before fifteen and decides to end the
relationship before she turns eighteen.
·
The husband indulges in acts of cruelty.
3. Grounds for Divorce under the Indian Divorce Act, 1869
The following are the
grounds of divorce mentioned under the Indian Divorce Act, 1869.
· Adultery
· Conversion to another religion
· One of the couples suffering from an unsound mind, leprosy or
communicable venereal disease for at least two years before the filing of the
divorce.
·
Not been seen or heard alive for a period of seven or more years.
· Failure in observing the restitution of conjugal rights for at
least two years.
· Inflicting cruelty and giving rise to mental anxiety that can be
injurious to health and life.
· Wife can file a divorce based on the grounds of rape, sodomy and
bestiality.
4. Grounds for Divorce under the Parsi Marriage and Divorce Act, 1936 (Amendment 1988)
The following are the
grounds for divorce in India included in the Parsi Marriage and Divorce Act,
1936 and the amendment of the same in 1988.
·
Continuous absence of seven years.
·
Non-consummation of marriage within one year.
· Unsound mind provided the other spouse was unaware of the fact at
the time of marriage and the divorce must be filed within three years of
marriage.
·
Pregnancy by some other man, provided the husband was unaware of
the incident during the time of marriage and that he must not have undergone
sexual intercourse after he came to know about the situation. The divorce must
be filed within two years of marriage.
· Adultery, bigamy, fornication, rape, or any other type of perverse
sexual act.
·
Act of cruelty
·
Suffering from venereal disease or forcing the wife into
prostitution.
·
Sentenced to prison for seven years or more
·
Desertion for two or more years
· Non-resumption of cohabitation after passing an order of
maintenance or a decree of judicial separation.
Mutual Divorce in India
Mutual Divorce in India
If you are planning to get a divorce, mutual divorce should always
be preferred to a contested divorce. Obtaining divorce through mutual consent
is quite advantageous as it saves both time and money. The provision for
dissolving marriage through mutual divorce in India is included in Section 13 B
of the Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976. Any
marriage solemnized before and after the Marriage Laws (Amendment) Act, 1976 is
entitled to this provision.
Though several laws have been passed with the progress of time,
the divorce procedure in India is still complex and will have to fight the
divorce for several months. The Indian judicial law believes that the extended
time span might work out well for the couple to reconsider their marriage and
hence, a marriage will be saved from being dissolved forever.
A Brief Outline of the Procedure of Mutual Divorce in India
Mutual Divorce is to be filed by the couple only after they have
lived apart for at least a year. A petition supported with affidavits for
divorce should be filed in the district court by both the spouses. The husband
and the wife should jointly state to the court that they are unable to live
together as they are facing immense difficulties in adjustment.
The filing of divorce petition by both the husband and the wife is
legally known as the "The First Motion Petition for Mutual Consent
Divorce". "The Second Motion Petition for Mutual Consent
Divorce" mentioned in the sub-section (2) of Section 13 B is filed when
the couple reappears to the court for the second time after a period of six
months. If the judge is satisfied after a hearing from both the husband and
wife, the court announces a mutual divorce decree.
If the couple fails to appear in the court after six months and
not later than eighteen months from the date of first motion, the divorce
petition becomes null and void. Either of the couple can withdraw his/her
petition within the six months term.
A judgment for mutual divorce is passed out only if all the
necessary agreements required for a mutual divorce in India are strictly
maintained. The husband and the wife should come to terms of settlement
regarding the following issues.
Custody of Child
Return of Dowry Articles / stridhan of
Wife
Lump Sum Maintenance amount of Wife
Litigation Expenses
For a mutual divorce in India, it’s always advisable to consult an
experienced lawyer who will effectively guide you to get the divorce through a
mutual agreement done
Divorce Procedure in India
Divorce Procedure in India
Divorce in India is certainly not an easy procedure. The entire
process of divorce that starts from coping up with emotional ups and downs to
contesting for the long awaited divorce decree for several months is definitely
a tough affair to get through. Before opting for a divorce, you should be aware
of the fact that a divorce procedure in India extents for almost a year and in
some special cases of disputes the procedure may continue for years. The long
distressing process of divorce will be easier for you to handle if you have a
firm determination to get the divorce.
Due to existence of various religious faiths in India, the Indian
Judiciary has implemented laws separately for couples belonging to different
religious beliefs.
Divorce procedure in India is based on the following acts.
1. The Hindu Marriage Act, 1955
2. The Parsi Marriage and Divorce Act,
1936
3. The Dissolution of Muslim Marriage act,
1939
4. The Parsi Marriage and Divorce Act,
1936
5. The Special Marriage Act, 1956
6. The Foreign Marriage Act, 1969
With the advancement of time and social awareness, several acts
have been passed by the Government of India to make the present day divorce
procedure more progressive with respect to gender affairs and related sensitive
issues. The Muslim Women Act 1986 was passed to protect the rights of Muslim
women on divorce. For inter-caste and inter-religion marriages, the divorce
laws are permitted under the Special Marriage Act, 1956.
A contested divorce is filed on the grounds that are mentioned in
the acts passed out separately for different Indian religions.
Getting a divorce through mutual consent should always be
preferred over the contested divorce as the procedure of getting a mutual
divorce is simpler in comparison to that of the other. For a mutual divorce
procedure in India, you can come to an agreement with your spouse where you may
resolve all kinds of disputes regarding maintenance, custody of children and
such.
Under Section 13B of the Hindu Marriage Act, a husband and wife
can file a mutual divorce only when they have lived apart for at least a year.
The couple must jointly mention about their inability to continue the marital
relationship due to some unavoidable circumstances. Both the sides must
voluntarily agree to dissolve the marriage.
The filing of a mutual divorce by both the husband and the wife is
termed as ‘the first motion’. A couple can file for a second motion after a gap
of six months. The six months time span is provided to the couple so that they
get the time to reconsider their marriage.
A divorce decree can be passed before the completion of the six
months term if all the mandatory requirements for the divorce are sufficed. If
the divorce file is not withdrawn within eighteen months the court passes a
divorce decree. In case one of the sides withdraws his/her petition, the court
initiates to make an enquiry. If the concerned side disagrees to give the
consent, the court holds no right to pass the divorce judgment.
