DIVORCE IN INDIA

Written by : Sammed Darure

"Divorce" comes from the Latin word “disodium” which means separation.

Divorce is a legal and formal ending of marital ties. It is not temporary separation but rather permanent dissolution of marriage by legal process declaring the marriage void after such decree passed.

Development of divorce :

Divorce which we use today was not this easy to get during ancient times, today we have a developed legal process where one can follow the steps and get a divorce legally.

The term divorce was initially traced back to the year 1760 B.C. during the rule of King Hammurabi of Babylon.

It is also believed that the king had engraved almost about 282 laws on stone that consisted of law of divorce, in ancient time there was more male dominance over females, and hence divorce laws were also biased when male wanted divorce he just had to say “You are not my wife,” and by payment of fine and returning wifes dowry and divorce was given, on the contrary wife had to file a complaint in order to get divorce. As time passed divorce started to gain more acceptance thought the world it was majorly accepted by France, Germany, and Ireland and later accepted by every country.

Different divorce acts based on religion:

1] Hindu: - The Hindu Marriage and divorce act of 1955

2] Christian and Parsi: - the Indian divorce act of 19

3] Muslim: -Governed by Muslim personal laws

4]Any other religion or for inter-caste marriages under the special marriage act of 1954 General grounds for divorce for both males and females:

1. Adultery: Where the person had intended physical relationship with a person other than his/her spouse

2. Cruelty: The aggrieved party has been treated cruelly after marriage in terms of physical or mental torture

3. Desertion: The spouse of the aggrieved party has deserted the spouse without giving any reasonable cause or without consent or against the wish of the aggrieved party for a period of 2 years urgently before the date of filing the divorce petition.

4. Conversion: If the person has changed his religion and is no longer a Hindu due to conversion to some other religion.

5. Unsound mind: The spouse is mentally unstable or has been suffering from intermittent mental disorder of such a kind and to such an extent that the aggrieved party need not continue to live together. Here, mental disorder includes mental illness, incomplete or retarded development of the mind, psychopathic disorder, or other mental disability including schizophrenia

6. Incurable leprosy: The spouse of the aggrieved party is suffering from a virulent type of leprosy.

7. Venereal Disease: The spouse is suffering from a disease that is of communicable form.

8. Renunciation of the world: The spouse has repudiated the world by joining a spiritual or religious order.

9. Imprisonment for more than seven years or presumed to be dead: The person has not been seen or heard to be living for a period of 7 years nor known by any close relatives or person who should do.

There are certain special grounds for Hindu women which include divorce if non-payment of maintenance, the option of puberty, rape, sodomy or bestiality, or pre-act bigamy as per sec 13(2)

The abovementioned grounds are moreover less or more for Hindu, Christian, Parsi, and special marriage acts. In the case of Muslim law, divorce is generally governed by personal law. They have various types of talaq systems by which they initiate and follow the process of divorce. The divorce grounds for Christian divorce are mentioned in sec 10 of the Indian Christian Marriage and divorce act and Parsi Divorce grounds are mentioned in sec 32 of the Parsi Marriage and Divorce Act

Divorce by Mutual Consent:

Various sections of the divorce act support divorce by mutual consent where both parties come together and file for divorce. These types of divorce are preferred because both parties voluntarily come up with the decision to divorce. Section 13 B of the Hindu Marriage Act, 1955, and Section 28 of the Special Marriage Act, 1954 require the couple to be living separately for at least one year before divorce proceedings can begin. The procedure includes filing the petition, cooling off period, and when the petition is not taken back then divorce is granted.

Types of talaq in Muslims:

Various forms include Talaq-e-Ahsan, Talaq-e-Hasan, and Talaq-e-biddat.

Talaq-e-Ahsan: the husband in this type of talaq has to pronounce divorce in a single sentence when the wife is in a state of purity. After this, an iddat period of 3 months or 90 days is followed and if no resumption of cohabitation then divorce is granted.

Talaq-e-Hasan: in this type talaq is pronounced once a month for a period of 3 months and if no cohabitation is resumed then divorce is granted.

Talaq-e-biddat: this form of talaq was valid earlier when the utterance of the talaq word 3 times lead to divorce. This form of divorce was held unconstitutional by the court and was banned in 2019.

Documents Required to File Divorce As per the Indian Divorce Act of 1969 following documents are required: -

1. Marriage Certificate

2. Adress proof of Husband and Wife

3. Passport-size photographs of marriage

4. Evidence that the spouse living separately for more than a year.

5. Details of property and assets owned.

6. Family Background Information

7. Profession and amount of maintenance if any.

Steps to get a divorce in India under The Hindu Marriage Act, of 1955:

1. The lawyer of both parties should file a divorce petition and present it before the family court along with evidence that proves that both husband and wife have been living separately for a minimum period of one year. After checking papers, evidence, and every detail regarding divorce as per the prescribed Law, each party needs to sign the documents as required.

2. The family court will provide a specific date and ask for every small detail which is required as per the rule to scrutinize every aspect, like the family background of both parties, property owned, reason for divorce, address proof, etc. After examining and checking by the court, both parties appear before Court on a given date. The parties are represented by their advocate council. During the inspection, Court tried not to break the bond between spouses as Hindu marriage is regarded as sacred and a permanent bond. Keeping this in view, Court always advises reconciliation when it is not possible then the court proceeds as per law.

3. The court orders to record the statements of both parties. when the statement is submitted the court asks for any chance of a reunion. As Court provides 6 month cool down period to bring harmony or reunion, before the file of the second step. The maximum period given by Court is 18 months from the date of the petition in family court, after which it gets rejected.

4. During the given period, if both parties agree to live together then the council gives cancellation notice for the divorce petition, but if the party does want to stay apart then they are free to go further with the proceedings and appear for the final hearing of the divorce matter. During the second stage of the hearing, the final statement recording of each part has to be recorded before the family court.

5. To avoid conflict or difference left in the matters related to Property division, child custody, contentions regarding alimony, maintenance, debt division, etc. the court hears a proper argument stating all the points and facts of the case and records it as part of the evidence.

6. Whenever the court is satisfied by the above process and if none of the parties are ready to stay together, then Court passes a decree of divorce declaring the marriage to be terminated or dissolved. When this decree is passed finally divorce is granted stating that the marriage here in after is termed void.

After effects of divorce:

Denial :

When beginning the process of divorce, the first stage one goes through is denial you start to get various thoughts about your spouse like, “They just need some space,” “They’re just going through something,” or “This can’t be happening to me.” Denial is a signal from the brain that is meant to numb the emotional pain that one goes through. When one does not move on through this phase it affects the health of the person. Undergoing denial can affect you in other ways, such as causing you to ignore the feelings of important people in your life.

Being Angry :

The second stage includes anger. Once the first stage is gone, feelings of vulnerability, fear, and sadness can become dominant. Anger is a way of deflecting these negative feelings. Anger is a good way to remove the emotional attachments with an ex-spouse. Anger passes on with time, so it is important not to let it affect your relationships, especially with your family. Various problems may arise and you may get frustrated with small things. It is very important that in this stage both the spouse do not promote negative news about their partners which will in turn hamper both of them.

Bargaining :

Bargaining, typically refers to when one spouse is trying to offer to change to avoid the separation. This type of thought comes in mind in order to try and save the bond among one of the spouse. By implementing bargaining and making changes in the relation can make the couple happier than before. But only accepting the changes and not implementing them can cause greater harm.

Depression :

This stage takes some time to recognize. This stage being harmful makes on think about the wrong decision one has taken in his life and also give a sense of regret warning you about the hardships that you have to face in future. Sadness is essential to begin the healing process and suggests it is time to move on and pursue new things in our life.

Acceptance :

This is the last stage and also the start of the real healing process. This is a stage in which one finds a new path and moves on. After going through the above stages one gets motivated to forget the past and move on to create a bright future rather than remembering the past. It is normal to feel grief from your divorce at different points in your life, even after this stage, but it passes with time.

Conclusion :

Divorce is ultimately the breaking of the marital bond. Usually, the court tries not to break the bond but it is really helpful in some cases where it is truly hard to live together because of the differences between the spouse. There are various after-effects of divorce like decreased levels of happiness, change in economic status, and emotional problems. Also if the couple has children then their custody is an issue. Many times a feeling of loneliness and mental illness also occurs.

References:

N.G. Dastane v. S. Dastane Naveen Kohli v. Neelu Kohli Amardeep Singh v. Harveen Kaur Itwari v. Asghari and Ors Molly Joseph v. George Sebastian https://timesofindia.indiatimes.com/india/explained-why-did-sc-say-talaq-e-hasan-is-different-from-tripletalaq/articleshow/93591700.cms https://www.thefreedictionary.com/Disolution+of+Marriage

Book:

How Much is Too Much? By Neha Mehrotra