Marriage is perhaps one of the oldest institutions in Indian culture. With India's marriage laws being built on religious grounds, the nation has probably one of the most unique legal procedures concerning marriage and its dissolution. Regarding divorce, each marriage law has varying ways to annul the marriage. This makes divorce laws in India quite different from those in other countries. This blog explores divorce procedures in India and how they differ from many Western countries.
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Marriage Laws in India
Unlike most other countries, India's legislation on marriage is deeply rooted in religion. While most other countries have a unified civil code when it comes to marriage and divorce, the laws in India are segregated based on the religion of the couple who wishes to be wed. These laws not only concern themselves with marriage but also the dissolution.
The primary one that applies to most citizens is the Hindi Marriage Act of 1955. This legal framework applies to Hindus, Sikhs, Jains, and Buddhists. Other laws include the Muslim Personal Law, the Parsi Marriage and Divorce Act, and the Special Marriage Act. Each of these laws has provisions for divorce, making divorce a legal concept in India. However, despite most laws allowing for the separation of the partners, divorce is still seen as a social deterrent in the country. Societal norms play a significant role in discouraging divorce, particularly for women, making the decision to divorce emotionally and socially challenging.
What Makes Divorce Laws in India Unique?
Now that we know that there are multiple legal sets of laws for marriage, the same can also be said for divorce laws in India. When it comes to the annulment of marriage, all laws in India have some sort of decree for separation. There are many grounds for divorce under which the motion can be filed. These can include sexual intercourse with someone other than the spouse, physical violence, mental disease that the other spouse was unaware of at the time of marriage, desertion for a continuous period of two years, communicable venereal disease, presumption of death, and mutual consent.
However, unlike many other countries, it is challenging in India to obtain a no-fault divorce, as many Indian courts and laws try to push for marriage to work out rather than an easy dissolution. While countries like the UK and the US accept the irretrievable breakdown of marriage as sufficient grounds for divorce, Indian law largely relies on fault-based grounds. The Supreme Court, however, has occasionally granted divorce decrees citing irretrievable breakdowns when reconciliation is impossible. The concept of judicial separation is also recognized in India, and it offers couples an alternative to immediate divorce by allowing them to live apart while retaining the marital bond.
Some other rules that make divorce laws in India unique are related to filing divorce petitions in courts. A petition for the dissolution of marriage can be filed by either of the two parties in the court where the partners last lived. In some cases, couples may be subject to a waiting period before their petition can be filed. Indian divorce laws offer multiple valid grounds for divorce.
One of the crucial avenues for divorce is protection against cruelty. This includes physical, emotional or mental harm. The Protection of Women from Domestic Violence Act of 2005 complements this by safeguarding women's rights and addressing abuse within the marital relationship. Similar to marriages, the rights of women in live-in relationships are also protected by domestic violence laws. Desertion for a continuous period of at least two years is also a valid ground for divorce. Married couples may also opt for judicial separation before filing a petition for divorce.
Recently, adultery was declassified as a criminal offence in India. However, engaging in sexual relations with people other than the spouse remains a valid ground for filing for divorce. If either party has rescinded conjugal rights in the marriage, then the court can order its restitution before granting a divorce. Similarly, if either side is not meeting other marital obligations, then one spouse files for divorce.
When it comes to mutual consent divorce, the concept is still growing in India. It was introduced to simplify the divorce process in India, and it has become a popular choice for amicable separation as it does not require any side to explicitly claim faults. Since the legal process in India is quite drawn out when it comes to contested divorces, mutual divorces are becoming prevalent among those not seeking lengthy court battles.
Key aspects of mutual consent divorce include a mandatory one-year separation before filing for divorce in a district court, both spouses agreeing on terms such as alimony and custody of children and a 6 month waiting period of separation during which the court ensures that reconciliation is not possible. Once satisfied, the court grants a decree of separation, officially ending the marriage. While this process is intended to be swift, judicial delays and societal pressures can make it a challenging time and emotional process for couples.
Child Custody and Property Division
Unlike other countries, divorce laws in India favour taking the mother's side. Custody of children is decided primarily based on the child's welfare, with courts favouring mothers for primary custody. However, in recent times, there has been an increase in encouraging joint custody arrangements. Ruling courts may order financial support for the spouse and children, ensuring the fulfilment of financial obligations. The court must ensure that provisions have been made for the maintenance of children born in the marriage, as that is the top priority, and both parents have a legal obligation to provide for the child. The decree of separation will also include to whom custody of the child is being awarded, if applicable.
Property division is another aspect of divorce rules in India that remains complex. Unlike many other countries that have community property laws, assets like movable property, immovable property, and inheritable property are not divided equally. During divorce, married women often need legal advice to know their legal rights during separation and secure their share. A decree of divorce may also include instructions on property division. During the process of divorce, it is recommended to hire an experienced divorce lawyer if large chunks of property are involved. This is to ensure divorce disputes are resolved without unfair treatment or abuse.
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Conclusion
In conclusion, the evolution of divorce laws in India highlights the progress Indian society has made regarding marital separation. Divorce laws in India are unique from the rest of the world, owing to its large population and diverse nature. While each religion has differing rules for divorce, married partners or live-in partners are both protected by them. Historically, divorce in India was only granted based on faults such as emotional turmoil, physical or mental torture or cruelty; now, divorce on common grounds is becoming popular to avoid the challenging process of the legal battles involved.
FAQs
What are the Rights of a Wife in a Divorce in India?
In India, a wife has several rights in a divorce, including maintenance (both interim and permanent), alimony, and the custody of children. She is also entitled to a share of the marital property and financial support. Domestic violence laws further protect her from abuse.
How Much Can a Wife Claim in Divorce in India?
A wife can claim maintenance, alimony, and a fair share of the marital property. The exact amount depends on factors like the financial status of the partner, the wife's financial needs, the duration of the marriage, and her standard of living during the marriage. In some cases, she may also claim compensation for mental and emotional distress.
How Much Separation Period is Required for Divorce in India?
Under Indian law, a mutual consent divorce requires a separation period of at least one year before the divorce petition can be filed. For fault-based divorces, there is no mandatory separation period, but grounds such as cruelty or adultery must be proven in court.
