Divorce in Indian Law

In Hindu religion, marriage has traditionally been regarded as a spiritual union. It is believed that marriages are forged in heaven and that people only cross paths on earth. It involves not only two people, but also two families that are diametrically opposed to one another. To be married and start a new family, two unique individuals from two different families come together. However, marriage is still a contract, and, like all other types of agreements, it can be broken.

In India, there are numerous laws governing marriage, including the Indian Christian Marriage Act of 1872 (for Christian), the Muslim Marriage Act (for Muslims), the Special Marriage Act of 1954 (for inter-religious marriages), and the Hindu Marriage Act of 1955 (for Hindus).

What is Divorce?

Divorce, which is also known as the dissolution of marriage, is a process used to end a marriage or marital partnership between two individuals.

• According to the legal system of any given nation, this is how matrimonial ties are broken. In India, divorce is handled differently depending on the religion because the country has not yet ratified the Uniform Civil Code. As a result, the Hindu Marriage Act of 1955 oversees divorce for all faiths, including Hindu, Jain, Sikh, and Buddhist.

When a couple files for divorce, their marriage is permanently ended. The parties are free to get remarried and are no longer subject to any marital duties. The relationship between the parties has ended. The court may award the decree if satisfied, but the parties are free to decide whether they desire a decree of judicial separation or divorce.

In the absence of any of the aforementioned causes, but in the event that the parties determine they cannot coexist as husband and wife, they may seek a divorce by mutual consent in accordance with Section 13B of the Hindu Marriage Act.

Laws for Divorce

There are several personal laws that include the opportunity for divorce by consent, including:

• The Hindu Marriage Act of 1955: It contains a provision for divorce by consent of both parties in Section 13B. It says that if the parties have been constantly living apart for a period of one year, are unable to cohabitate, and have mutually agreed to separate, they may seek a divorce by consent.

• The Muslim Women (Protection on Divorce) Act, 1986: Muslims may seek divorce by mutual consent in accordance with the Personal Laws and the Muslim Women (Protection on Divorce) Act, 1986. Islamic personal law recognizes two forms of divorce by consent:

  • Khulla

  • Mubarat

• The Indian Christian Marriage Act, 1872: The Indian Christian marriage is subject to the provisions of the Indian Divorce Act, 1869. Section X of this act permits the dissolution of their marriage. According to Section XA (as revised in 2001), both partners may agree to petition for divorce.

• The Parsi Marriage and Divorce Act,1936: The definition of divorce with mutual consent is found in Section 32B. The Parsi Marriage and Divorce (Amendment) Act, 1988 stipulates that couples may seek divorce by mutual consent regardless of whether their union was solemnized before or after that date. Both parties must file the lawsuit, and both must have lived apart for at least a year and mutually agreed that they could no longer coexist as a couple. The lawsuit cannot be brought until one year has passed since the marriage date. If the facts and circumstances of the case satisfy the court, the court may grant the divorce decree.

• The Special Marriage Act, 1954: If a judicial marriage occurs, a divorce by mutual consent petition is filed under Section 28 of the Special Marriage Act, 1954. The parties must jointly file a petition with the court asserting that they are unable to cohabitate, that they are living apart as a result, and that they have mutually agreed to file for divorce.

What is Divorce by Mutual Consent?

The process of ending a marriage peacefully, as agreed upon by both the parties, is less contentious than litigating the matter and vilifying the other party. In order for the court to issue them a divorce judgment, they may file a petition before a District Court in accordance with the amendment to Section 13B of the Hindu Marriage Act, 1955. The Panchayat's proceedings will have no bearing on the divorce

• According to the Hindu Marriage Act, mutual consent is a reason for divorce. This Act was amended in 1976 to include Section 13B. The parties whose marriage is solemnized before or after the amended Act may seek remedy under this clause since it is both retrospective and prospective from the start.

The key conditions and steps for partners seeking a divorce based on mutual consent are outlined in Section 13B of the Act

• Regardless of whether the marriage was consummated before or after the Marriage Laws (Amendment) Act of 1976 went into effect, both parties to the marriage may jointly file a petition with the district court for the divorce on the grounds that they have been living apart for at least a year, that they are unable to cohabitate, and that they have mutually decided that the marriage should end. However, this is subject to the provisions of this Act.

• If the petition is not withdrawn in the interim, the court will issue a divorce decree if it is satisfied that a marriage has been solemnized and that the allegations in the petition are true, upon motion from either party made no earlier than six months after the date of the petition's presentation mentioned in the preceding paragraph and not later than eighteen months after said date.

Essential Ingredients of Section 13(B)

• The parties must have lived apart for at least a year: According to Section 13(B) of the Act, the couple must have been living separately for at least a year prior to filing the petition in order for the marriage to be mutually dissolved.

  The petition must be filed within one year following the parties' one-year separation from one another. In the language of Section 13B, "living separately" does not necessarily imply physically relocating to another location. Even though the parties may reside under the same roof and in the same home, there may still be a physical separation between them.

• Living together has not been possible for the parties: Relationships are supposedly created in paradise, yet on sometimes, they do not last very long on Earth. Nowadays, divorce is seen very lightly and often used as a last choice, despite the fact that this was never the goal of the law. It often happens in a marriage that the partners can no longer coexist peacefully because they can't stand each other. At that point, they decide to separate amicably.

  Sadly, it frequently occurs that the parties cannot coexist even after attempting mediation and reconciliation and making several attempts, leading to the filing of a divorce petition by consent.

• They have both agreed that there are some circumstances where ending a marriage makes sense: The partners can decide to agree to a mutual divorce or give their marriage another opportunity. The parties may occasionally be able to come to terms during the waiting period and salvage their relationship.

  The parties have a total of 18 months after the first motion has been granted to file for the second motion; if they fail to do so within those 18 months, both parties are presumed to have mutually withdrawn their consent.

Benefits of taking Mutual Divorce

It includes:

• The parties avoid engaging in pointless disputes.

• Rapid and efficient relief;

• Litigation that is inexpensive and simple;

• Independence regarding prerequisites for entering a settlement;

• There isn't any resentment or abuse among the litigants.

Conclusion

Divorce by mutual consent enables parties to settle disagreements amicably while also saving time and money. Divorce is a serious matter that ought to be pursued only as a last resort, yet these days, many people do so without hesitation. Families fall apart, and a child of a divorced parent who has to grow up with separated parents has severe stress.

Divorces are taboo in society since they are viewed as a bad move. However, in today's modern society, if marriage is not done properly for you, it may end. The courts make every effort to prevent divorce and will try new approaches if they can save the marriage. Divorce is always the last option.

FAQs

Q1. How is maintenance and alimony decided in a mutual consented divorce?

Ans. In a mutually agreed-upon divorce, the parties—the husband and wife filing for divorce—will decide on maintenance and alimony jointly. The sum is agreed upon by both parties while taking into consideration their social standing, the wife's maintenance, the child's maintenance and educational costs, the husband's income, the wife's income, and the wife's employment status.

Q2. What is Cooling-off period?

Ans. After filing for divorce in any competent court, the husband and wife are granted a cooling-off period by the court, during which they must decide whether to proceed with the divorce or to withdraw the case. Depending on the circumstances of the case and the nature of the relationship, the cooling-off period may be waived.

Q3. Who gets the custody of child in divorce by mutual consent?

Ans. In a divorce where both parties have consented, the decision about child custody is made jointly by the husband and wife, who is both deemed, qualified to do so. In the case of joint custody, one parent has sole physical custody of the child while the other two parents continue to share joint legal custody.

Q4. Is marriage registration compulsory to use as a ground for divorce?

Ans. No, registering a marriage is not required per se, but it is encouraged to do so in order to strengthen the case for divorce.