Ved legal is Associated with expertise Advocates in Divorce and Matrimonial Cases in and around Pune, and have vast experience in the Family issues which arises after marriage, Ved legal gives the proper consultation with the concrete solution to their clients, so that they can settle their dispute amicably. Below is the brief description of the jurisdiction and procedure followed in Family Court.
A divorce is among the most traumatic occurrences for any couple. To add to this, it can also be a long-winded and costly affair in India if the divorce is contested. Even couples that mutually agree to the divorce, however, must prove that they have been separated for a year before the courts consider their plea.
In India, as with most personal matters, rules for divorce are connected to religion. Divorce among Hindus, Buddhists, Sikhs and Jains is 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. All civil and inter-community marriages are governed by the Special Marriage Act, 1956.
Types of Divorce Petitions:-
A couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other.
Divorce With Mutual Consent: When husband and wife both agree to a divorce, the courts will consider a divorce with mutual consent. For the petition to be accepted, however, the couple should be separated for over a year or two years (as per the relevant act) and be able to prove that they have not been able to live together. Often, even when either husband or wife is reluctant, they still agree to such a divorce because it is relatively inexpensive and not as traumatic as a contested divorce. Matters such as children’s custody, maintenance and property rights could be agreed to mutually.
There are three aspects regarding which a husband and wife have to reach a consensus. One is alimony or maintenance issues. As per law, there is no minimum or maximum limit of support. It could be any figure or no figure. The second consideration is custody of the child. This must necessarily be worked out between the parties, as it is inevitably what requires the greatest amount of time in divorce without mutual consent. Child custody in a mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses. The third is property. The husband and wife must decide who gets what part of the property. This includes both movable and immovable property. Right down to the bank accounts, everything must be divided. It is not necessary for it to be fair, so long as it is agreed to by both parties.
The duration of a divorce by mutual consent varies from six to 18 months, depending on the decision of the court. Usually, the courts prefer to end mutual consent divorces sooner, rather than later.
As per Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple should be living separately for at least one year before divorce proceedings can begin. Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at least two years. Do note that living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period.
Divorce Without Mutual Consent: In case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a reason. The reasons for divorce are as follows, though some are not applicable to all religions.
1. Cruelty
Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.
2. Adultery
In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
3. Desertion
One spouse deserting the other without reasonable cause (cruelty, for example) is reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.
4. Conversion
Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before divorce can be filed.
5. Mental Disorder
If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.
6. Communicable Disease
If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.
7. Renunciation of the World
If the spouse renounces his/her married life and opts for sanyasa, the aggrieved spouse may obtain a divorce.
8. Presumption of Death
If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.
What is Alimony?
When two people are married, they have an obligation to support each other. This does not necessarily end with divorce. Under the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage. This will include, therefore, spouse, dependent children and even indigent parents.
The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the husband having sufficient means. When deciding how much alimony is to be paid, the courts will take into account the earning potential of the husband, his ability to regenerate his fortune (in case, say, the property is given to the wife) and his liabilities.
In case either spouse is unable to pay for the divorce, these expenses would also be paid by the spouse that does have an income.
What about child custody?
Many assume that the mother always gets custody of her children. This is not the case. While the courts usually agree to the decision of the parents in a mutual consent divorce, the courts are expected to see to the best interest of the child. In a contested divorce, the courts will examine the ability of the mother or father to be a parent to the child, for example. Money is not usually a matter that is considered. Non-working mothers are regularly given custody of their children, but fathers are expected to provide financial support.
What documents are required to file for divorce?
1. Address proof of husband
2. Address proof of wife
3. Marriage certificate
4. Four passport size photographs of marriage of husband and wife
5. Evidence proving spouses are living separately since more than a year
6. Evidence relating to the failed attempts of reconciliation
7. Income tax statements for the last 2-3 years
8. Details of profession and present remuneration
9. Information relating to family background
10. Details of properties and other assets owned by the petitioner
Annulment of marriage
Marriages in India can also be dissolved by means of annulment. The procedure for annulment is same as that of divorce, except that the grounds for annulment are different from that of divorce. Reasons for annulment are fraud, the pregnancy of wife by a person other than the husband, impotence before the marriage and subsisting even at the time of filing the case.
Once annulment is granted by an Indian court, the status of the parties remains as it was prior to the marriage.
Void marriage
A marriage is automatically void and is automatically annulled when law prohibits it. Section 11 of Hindu Marriage Act, 1955 deals with:
Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 of the Act.
Bigamy: If either spouse was still legally married to another person at the time of the marriage then the marriage is void, and no formal annulment is necessary.
Interfamily marriage: A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.
Marriage between close relatives: A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.
Voidable marriage
A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud.
The duration for obtaining divorce varies from case to case and place to place. Generally speaking, contested divorce proceedings take 18 to 24 months. Mutual consent divorce varies from 6 months to 18 months.