Divorce is many times the last choice that couples choose due to strenuous reasons. Following the decision to divorce is a long road of legalities to fulfill before the divorce petition is granted.
In India, divorce laws fall under the Hindu Marriage Act, 1955. All petitioners who are of Hindu, Sikh, Jain, and Buddhist religions will be granted divorces under this act. For Muslims, the Dissolution of Muslim Marriage Act, 1939, and for Parsis, the same is the Parsi Marriage and Divorce Act, 1936. Christian divorces come under the Indian Divorce Act, of 1969.
Stated below is a short description of the different divorce laws and petitions in India.
Types of Divorce Petitions
There are two major types of divorce petitions as of new rules for divorce in India 2021 and beyond. One can earn a divorce with the mutual consent of both parties or without mutual consent. It is worth noting here, the following laws will differ depending on the petitioner’s religion, Hindu, Sikh, Muslim, Christian, Parsi etc.
With Mutual Consent
The first type of divorce petition is when both parties, husband, and wife mutually agree to separate. They need to prove that they have been living separately for over a year and provide reasons for divorce, financial or otherwise. The grounds for divorce in India on mutual consent will be given if both individuals can reach a decision on the
● Custody of children, joint, shared, or exclusive.
● Division of all property, including bank accounts, of both husband and wife. To protect the rights of a woman in divorce in India, this must be mutually decided and there is no requirement for the division to be fair.
● Alimony amount is also called maintenance amount. There is no set limit for the
Without Mutual Consent
The other types of divorces in India is where either husband or wife does not consent to it. The divorce laws in India grant contested divorce on the following grounds.
However, the below divorce laws for males in India and for females will differ based
Cruelty: If there has been either mental or physical cruelty or both on any party, they can seek out divorce.
Adultery: Adultery or having intercourse outside of the confines of marriage is grounds for divorce. Divorce due to adultery was a criminal offence but as per new rules for divorce in India 2022, has been decriminalized in India.
Conversion: Converting to another religion after the marriage is enough to file for divorce. Unlike other conditions, for conversion, there is no minimum time limit required to be eligible for divorce filing.
Desertion: If a spouse can prove they have been deserted without any reason, the court can grant a divorce. There must necessarily be proof of intent to desert. Under Christian law, there is no requirement of a minimum time period of desertion to file for divorce. On the other hand, under Hindu law, it is two years.
Infectious Disease: On the occasion that a spouse has contracted an infectious disease such as HIV AIDS or Syphilis, divorce can be obtained, as per Hindu Divorce Laws.
Mental Disorders: Contested divorce is also awarded in case one of the spouses suffers from any mental disorder or is of unsound mind. There must be proof that due to this disorder, they are unable to conduct their daily duties as a spouse.
Renunciation of Worldly Comforts: The spouse of any individual who has adopted sannyasa and gives up on married life during that process can petition for a divorce.
Death Presumption: If the petitioner can prove that their spouse has not been heard of or been in communication for a minimum of 7 years, a divorce is granted. In this case, it is assumed that if they were alive, they would have maintained communication.
Annulment refers to the termination of the marriage by a court. As opposed to divorce, in annulment, it is established that there was no marriage. There is no sharing of properties and does not include alimony. Such annulment can occur if certain conditions are fulfilled which are as follows.
● If one of the spouses was already married at the time of marriage.
● If one of the spouses was not of legal marriageable age and the marriage was
solemnized without the consent of the parents.
● If it can be proven that the spouse was inebriated due to alcohol or drugs during
● Due to mental or physical incompetency
● If the marriage took place through force
● If the spouse has been given a prison sentence for life.
Under the Hindu Marriage Act, 1955 the concept of Void marriages has been put up. In a void marriage, the spouses do not have the status of husband and wife and no alimony is awarded. Under the law, a void marriage is null and does not exist. Under section 5 of the act, a marriage is considered a void marriage if the following are fulfilled.
● If one of the spouses had a living spouse during the time of the marriage.
● If the relationship between both parties is prohibited due to some reason.
● If both spouses are blood relatives or are close relatives to each other.
As opposed to a void marriage, a marriage can be petitioned to be declared voidable by either spouse. Both spouses will retain their husband-wife status and also the wife can claim maintenance. In voidable marriage, the voidable status is awarded by the court if the marriage took place in the following situations.
● One of the spouses was of unsound mind
● Due to mental disorders, the spouse cannot bear children
● Due to insanity
● The marriage took place due to force
● If either spouse was under-age
● If the spouse is pregnant with someone else’s child.
Divorce can be a hard time for both parties. There are a lot of minor and major details to figure out in order to legally be divorced. Thankfully, there are several NRI divorce lawyers in Chandigarh to help. At Lex Solutions, there is a team of experienced lawyers to competently handle divorces and make the process as painless as possible.