Understanding the Divorce Process and Duration in India under Hindu, Muslim, Christian, and Other Laws
Introduction
- In India, divorce is governed by various personal laws based on an individual's religion. The grounds for divorce vary depending on the specific personal law applicable to a person's religious affiliation.
- The major religious groups in India have their own marriage and divorce laws, including Hindu, Muslim, Christian, and Parsi laws. Here are some common grounds for divorce under section 13, the Hindu Marriage Act, 1955
- Adultery: One spouse engages in sexual relations outside the marriage
- Cruelty: Mental or physical cruelty towards the spouse
- Desertion: One spouse deserts the other for a continuous period of at least two years
- Conversion: Either spouse has changed their religion.
- Unsoundness of Mind: Either of the spouses becomes of unsound mind.
- Venereal Disease: One of the spouses falls sick with communicable venereal disease.
- Renunciation of the World: Either of the spouses renounces the world.
Procedure of Divorce in Hindu, Muslim, Christian, and Parsi Laws
- Hindu, Christian, and Parsi
- Mutual Consent: Divorce by mutual consent is prescribed under section 13B HMA, 1955. More or less, similar grounds are available in other related laws. The personal laws of Hindu, Christian, and Parsi allow for divorce by mutual consent, where both spouses agree to the dissolution of the marriage. Mutual consent divorce can be relatively straightforward if both parties agree on alimony, child custody, and other applicable factors. A joint petition for dissolution of marriage can be filed, if the parties are incapable to live together and are living separately from 1 year or as prescribed in the personal laws, before the Family Court or the District Court, as the jurisdiction is, and, after a statutory waiting period of six months in mutual consent divorce cases, or as prescribed by the personal law, the court grants the decree of divorce after this waiting period if the parties maintain their consent to divorce. But nowadays, the cooling period can be waived on presenting an application for its waiver. Thereafter, after recording the evidence and the court's satisfaction with the reasons furnished in the divorce application and the evidence presented, the court may pass the judgment and decree of divorce. There is no provision for appeal.
- Contested Divorce: In the event of a separation without securing each other's trust, and a mutual decision to end the marriage, especially in cases of cruelty, adultery, bigamy, vulnerable diseases, and other grounds of divorce, one spouse can file a divorce application before the Family Court or the District Court, according to the jurisdiction, seeking the relief. This process is time-consuming. The court issues the notice to the other spouse for appearance. Thereafter, when the other spouse appears before the court, they must reply to the divorce application. The court then frames the issues of dispute and the relief sought, and the proceedings proceed in a manner similar to a civil trial. Once the trial is concluded, the court may pass the decree upon satisfaction with the evidence and the arguments. The dissatisfied spouse can file an appeal.
- Interim Orders: During the divorce proceedings, the court may issue interim orders regarding issues like maintenance and others, as applicable. These orders can sometimes be issued quickly to address immediate concerns.
- Muslim
- Talaq: In Islamic law, a Muslim husband has the unilateral right to pronounce talaq (divorce) at any time and for any reason. There are different forms of talaq, including talaq-e-ahsan (with a waiting period) and talaq-e-hasan (pronounced over three menstrual cycles).
- Khula: In Muslim divorce, a woman can seek divorce through khula, which is a process initiated by the wife, where she offers something to the husband in exchange for her freedom.
- Mubarat: It is a mutual consent divorce, which is initiated by either party and accepted by the other, in which no consideration is to be paid to either party for the dissolution of marriage.
- Triple Talaq(Talaq-ul-biddat): Triple talaq, a controversial practice that allowed a husband to divorce his wife by pronouncing talaq three times in one sitting, was banned by the Indian government in 2019. This practice is no longer recognized as a legal practice.
- Important Consideration
- Mehar: Under Muslim personal law, the husband is responsible for providing Mehar to the wife, which may include a lump sum amount or periodic payments as agreed upon during the marriage contract (nikah).
- Iddat Period: After a divorce, there is an iddat (waiting) period during which the wife cannot remarry. The duration of this period varies depending on factors like the form of divorce and whether the wife is pregnant.
How Long Does it Take to Finalize a Divorce in India?
- Mutual Divorce: If both spouses mutually agree to the divorce and can come to terms on issues such as alimony, child custody, and other decisions, the process can be relatively quick. Mutual consent divorces typically take around 6 to 12 months, or sometimes less than 6 months, depending on the court's schedule.
- Contested Divorce: In cases where no mutual consent and issues like alimony, child custody, and others are contested, the divorce process can be considerably longer. These cases can take several years to resolve, involving court hearings, the presentation of evidence, and legal proceedings.
- Delay Factors: The divorce process can be delayed by various factors, including court system backlogs, the complexity of the case, the parties' willingness to cooperate, and the availability of evidence and witnesses.
Divorce Cases in India Where Maintenance is Not Payable
- Self-sufficiency: If the spouse seeking maintenance is capable of earning a livelihood and is self-sufficient, the court may not award maintenance. The court will assess the earning capacity, qualifications, skills, and potential income of the spouse before making a decision.
- Adultery: In some cases, if the spouse seeking maintenance is found to be guilty of adultery, the court may deny or reduce the maintenance amount. However, this can vary depending on the specific circumstances and the court's discretion.
- Desertion: If the wife seeking maintenance has deserted the husband without reasonable cause, it may impact her right to receive maintenance.
- Remarriage: If the spouse seeking maintenance remarries, their right to receive maintenance may be affected. In many cases, remarriage can lead to the termination of maintenance.
- Mutual Consent Divorce: In mutual consent divorce cases, where both spouses agree to end the marriage and have resolved financial matters, they may waive the right to maintenance.
- Unreasonable Behaviour: If the spouse seeking maintenance has been engaging in unreasonable or cruel behaviour towards the other spouse, it may affect the court's decision on maintenance.
- Other Factors: It is essential to note that the specific circumstances of each case can vary, and the court's decision regarding maintenance is influenced by various factors, including the needs and resources of the parties involved, as well as the overall financial situation. The court will consider the facts of the case and exercise its discretion in determining whether maintenance is payable and, if so, the amount and duration.
Conclusion
The procedure and the timespan involved in getting a divorce may include several complex factors. In India, the process of obtaining a decree of divorce is complicated, except in cases of mutual consent divorce. Couples are advised to find amicable solutions if they are seeking a divorce as a solution to their marriage. In such circumstances where it becomes impossible to opt for a mutual consent divorce, it is better to understand your rights and obligations in a divorce case related to maintenance. It's advisable to consult with a seasoned lawyer who can provide guidance tailored to your specific situation and the applicable laws. To know more, click here.
