Blog Details

Author - Advocate Tabassum Sultana

Co-Author - Associate Debasmita Patra

Ending any relationship is hard. But sometimes it's for the best. Living in a relationship and always ending up getting hurt is not a good feeling either. In the end, there is no option but to end the marriage. While marrying somebody, nobody thinks of this phase to come. But because of differences and other factors, it happens. There are different laws related to divorce in different countries.   As a legal action between married people to end their marriage relationship, the purpose of divorce is to conclude the parties' marriage for which the court and the parties have to take essential decisions regarding the custody and placement of minor children, if any, and division of the property and debts of the parties, etc. 

A legal separation is quite similar to a divorce. From filing papers with the court to the initiation of a legal action, separation involves the same process as that of a divorce. The court is required to make the same decisions about children, debts, and assets in both cases. However, at the end of the whole process, the parties are legally separated instead of being divorced which means they are still married but not responsible for each other. 

India is among the lowest-rated countries when it comes to divorces in the world. In India, the divorce rate is even less than 1 percent wherein out of every 1000 marriages, only 13 result in a divorce. The low divorce rate owes up to social pressure with arranged marriage taking place over months between two families and not individuals. If, in this case, someone asks for a divorce, they are usually shunned by society for going against the rules and their parents as well. Though this might merely be a coincidence only, developed countries face rates of divorce way higher than developing countries. 

As with most personal matters, terms and conditions for divorces are connected to religion in India. Among Hindus, Sikhs, Buddhists, and Jains, divorce cases are governed by the Hindu Marriage Act, 1955; Muslims by the Dissolution of Muslim Marriages Act, 1939; Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. The Special Marriage Act, 1956, governs all the civil and inter-community marriages.

Divorce, in India, can be achieved in the following ways: Mutual Consent and Contested Divorce. 

Divorce by Mutual Consent

This is the quickest and easiest way of getting separated. The process requires both parties to agree to a divorce mutually. Also, both have to mutually deliberate upon the two prominent aspects of separation:

Alimony – Since there is no minimum or maximum limit on maintenance, or namely, alimony, both the partners can settle down on any figure, according to their mutual understanding and discretion.

Child custody – If the person has a child or more, deciding their custody can be difficult, but partners can very effectively work out on how they want to take care of them. Child custody can be joint, shared, or exclusive, for that purpose, depending on their understanding. Both the spouses agree to a peaceful separation. Mutual Consent Divorce is the simplest way of dissolving the marriage legally. The only ingredient that's required is the mutual consent of each of the spouses. The duration of divorce by mutual consent can vary from 6 to 18 months, depending on the court's decision. Usually, the courts prefer to end mutual consent divorces sooner. When it comes to financial support or maintenance, as per law, there is no minimum or maximum limit to it. It could be any or no figure.

How to file a Mutual Consent Divorce:

The couple has to show proof that they have been living separately for a year or more before filing the divorce petition and that during this one year of separation it was difficult for both of them to live together as husband and wife.

Contested Divorce Laws in India

As the name rightly indicates, in this form of separation, the person has to battle against their spouse to get a divorce. According to divorce laws in India, a person is eligible for a contested divorce if they have been suffering from physical and mental cruelty, desertion, spouse's unsound mental status, adultery, impotence, and some factors, other than this, anything that can make it difficult for both of them to stay together. There are several specific grounds on which the petition can be made in case of a divorce suit. It is not that a husband or wife can merely ask for a divorce without stating a reason.

It also depends on which religion the parties belong to. Rather than existing in one place, it's better to consult a professional before filing the divorce by the person. It's better to understand the consequences of filing a divorce. The situation becomes more complicated when children are involved. Due to a significant number of major compatibility issues in India, people are less aware of such situations and often look badly upon separation. It either has to be executed on mutual consent or has to be contested. The legal system has understood the flaws in this system and has drafted a bill, which is pending in the parliament.