Divorces are no fun – if you want to go by the understatement of the century. A divorce can be a harrowing, stressful, and even debilitating event for anyone. That includes both the partners going through the divorce and those around them. In olden times, especially in the Hindu community, marriages were seen as a sacrament, which made the concept of separation non-existent. The British, with their Protestant sensibilities, first introduced the concept of divorce to the Indian masses (if we don’t consider the Muslim community whose customs were seen as alien anyway).
After Independence, when the Indian Judiciary system finally began to take the helm in defining laws for its countrymen, laws regarding marriage and separation for the Indian masses began to spring up with the Hindu Marriage Act of 1955.
Still like every law, they came with their own complicated legalities that made it difficult for common people to take advantage of them (and even do to a degree today). Hence, this blog tries to explain the various legalities of divorce laws in India in simpler terms.
This is the first term you’ll generally hear concerning divorces. Judicial separation is the legal process that usually precedes a divorce proceeding. A couple can live separately for a stipulated amount of time without having to file for a divorce once a court passes a decree of a marriage separation agreement.
Mutual and Contested Divorces
There are provisions for two types of divorce in Indian Divorce laws. This remains constant across the various marriage laws that govern the marriage and separation law among various communities in our country. These two types of divorce are:
- Mutual/Uncontested Divorce
- Contested Divorce
A mutual or uncontested divorce is when the couple files for a divorce together. This means both of them have agreed to the decision of getting a divorce before approaching the court. This is less time and resource-consuming than a contested divorce.
A contested divorce, on the other hand, is when one spouse files for a divorce but the other objects to the move. This type of divorce is of the messier kind as it can involve a lot of hearings to reach a decision. Either the husband or wife can file for this kind of divorce as per the various law of marriage and divorce in our country.
There is a provision in section 5 of the Hindu Marriage Act that states that marriages can be declared void (hence unconstitutional or illegal) if they don’t meet certain conditions. These legal issues in divorce include:
- Neither partner should have a living spouse at the time of the registration of the marriage.
- The partners are not sapindas of each other or were in a prohibited relationship.
- The marriage remained unconsummated due to impotence.
- The consent of marriage was not obtained by force.
- The wife was not pregnant by some other person at the time of marriage.
Irretrievable Breakdown of Marriage
When a couple is mutually in agreement that they cannot live together as husband and wife any longer, it is called the irretrievable breakdown of a marriage. There are no laws regarding this phenomenon in any of the various divorce laws in the country, though both the Supreme Court and Law Commission have been pushing to include this in the legal divorce procedure.
However, the Supreme Court still understands the validity of the irretrievable breakdown of marriage and uses its special powers under Article 142 to exercise this in divorce cases that appear before it. One good thing that has come out of the efforts of the Supreme Court is that the 6-month cool-off period that used to be mandatory in mutual consent divorce cases is now discretionary. Under this divorce new law, couples can appeal to civil courts to waive this 6-month period that was in place to avoid hasty decisions if they are sure that they cannot cohabitate.
Legalities in the Valid Ground for Divorce
When it comes to contested divorce, there are many grounds based on which they can be filed. Some of these grounds in family law divorce are self-explanatory, while some are not so clear as they involve minor legalities. These valid grounds for filing a divorce include:
- Presumed dead
- Non-restitution of conjugal rights: This is when cohabitation has not resumed or the marriage has still not been consummated even after the court has passed a judicial decree for the same
- Venereal disease (includes leprosy too)
- Non-resumption of cohabitation: Cohabitation has not resumed for 1 year or more since the filing of the judicial separation
- Mental disorder
The Constitution of India, which serves as the basis for all laws in the country, is the longest-written constitution in the world. It is thus no surprise then that there are various laws with their own legalities and technicalities when it comes to the law of divorce in the country. Hence, there are a lot of people even today who choose to go on living in horrible marriages because they cannot understand these.
That is why this blog exists – to lower the bar to entry when it comes to understanding legal technicalities. However, on its own, this knowledge of the various legalities of divorce isn’t enough and we at Lex Solutions always advise you to get a proper divorce lawyer if you’re considering a divorce or want to help someone going through the same.
- What is the new law of divorce?
The new law of divorce that has made waves around the country is that Triple Talak is no longer a valid form of divorce and it stands as a punishable offense.
- What is the minimum time to file divorce?
The minimum time to file a divorce is 1 year. Couples must live together for at least a year before they can file for a divorce. This is in place so that people don’t take hasty decisions.
- Is 1 year separation mandatory for mutual divorce?
No. The Kerala High Court struck it down in a hearing in 2022. Courts can now use their discretionary power to waive off or shorten the separation period.
- What are the 5 grounds for divorce in India?
Actually, there are 10. The common five grounds for divorce include adultery, cruelty, venereal disease, desertion, and Mental disorder.
- Where can I get good counsel for divorce in Chandigarh?
For legal advice divorce and other legal needs, look no further than Lex Solution, the best legal firm in Chandigarh.