DIVORCE BY
MUTUAL CONSENT
Divorce is
the legal dissolution of marriage. Since India is a land of varied religious
communities having their own marriage laws, the divorce procedure too varies,
according to the community of the couple seeking divorce. All Hindus as well as
Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955.
The Muslim, Christian and Parsi communities, on the other hand, have their own
laws governing marriage and divorce. Spouses belonging to different communities
and castes can seek divorce under the Special Marriage Act, 1956. There is also
the Foreign Marriage Act 1969, governing divorce laws in marriages where either
partner belongs to another nationality.
Divorce by
Mutual Consent
Seeking a
divorce in India is a long-drawn out legal affair, where the period of
prosecution takes a minimum of six months. However, the time and money required
to obtain a divorce can be considerably shortened if the couple seeks divorce
by mutual consent. In this case, estranged spouses can mutually agree to a
settlement and file for a "no-fault divorce" under Section 13B of the
Hindu Marriage Act 1955. All marriages which have been solemnized before or
after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the
provision of divorce by mutual consent. However, for filing for a divorce on
this ground, it is necessary for the husband and wife to have lived separately
for at least a year.
Procedure
for Filing for Divorce
The
procedure for seeking a divorce by mutual consent, is initiated by filing a
petition, supported by affidavits from both partners, in the district court.
Known as the First Motion Petition for Mutual Consent Divorce, this should
contain a joint statement by both partners, that due to their irreconciliable
differences, they can no longer stay together and should be granted a divorce
by the court. After six months, the Second Motion Petition for Mutual Consent
Divorce should be filed by the couple and they are required reappear in the
court. A gap of six months is given between the two motions, so as to offer the
estranged couple adequate time to reconsider their decision of dissolving their
marriage. After hearings from the husband and wife, if the judge is satisfied
that all the necessary grounds and requirements for the divorce have been met,
the couple is granted a mutual divorce decree. Some of the important issues on
which the couple should have agreed, in their petition for divorce by mutual
consent, are custody of child, alimony to wife, return of dowry items or
"streedhan" and litigation expenses.
However,
if either party withdraws the divorce petition within 18 months of the filing
of the First Motion Petition, the court will initiate an enquiry. And if the
concerned party continues to refuse consent to the divorce petition, the court
will no longer have the right to grant a divorce decree. But if the divorce
petition is not withdrawn within the stipulated 18 months, the court will pass
a divorce decree on the basis of mutual consent between both parties.
However,
not all estranged couples agree on the desirability, grounds or the conditions
of divorce. In such cases, one party files for divorce in the court, but the
other contests it. This forms the case for the filing of a contested divorce.
Some of the grounds on which either spouse can file for a divorce in India are:
- Adultery on the part of the spouse of the petitioner, or any other sexual relationship outside marriage.
- Willful desertion or abandonment of the petitioner by the spouse, for a continuous period of two years in India, before the date of the filing for divorce.
- Infliction of physical and/or mental torture on the petitioner by the spouse, which may result in danger to life and health of the former.
- Sexual impotency or inability to perform sexual intercourse by the spouse of the petitioner.
- Insanity or suffering from incurable disease by the spouse of the petitioner.
The actual
process of filing for divorce, however, begins with the hiring of a lawyer. The
importance of having an efficient lawyer cannot be over-emphasized, if one is
to get through the complexities of the legal system in India. So whether a
person is filing for divorce or contesting one, he/she should see that the
lawyer is not only well-versed with laws related to marriage and divorce under
the relevant marriage act, but also has adequate experience in guiding his/her
client to the best possible divorce deal from the court.
After the
petitioner and his/her lawyer have decided on which grounds to file for
divorce, a divorce petition is formally drafted and filed in the relevant
court. The petitioner is required to provide his/her legal representative with
photocopies of the following documents:
- Income tax statements for the last 2-3 years
- Details of the petitioner's profession and present remuneration
- Information related to family background of the petitioner
- Details of properties and other assets owned by the petitioner
Here it
may be mentioned that it is in the interest of the petitioner, to provide all
details of his/her marriage to the lawyer. This will not only include facts
related to when and where the petitioner and spouse got married, but also
details on how problems cropped up in their marriage and the events that
finally led to the petitioner seeking divorce. The more honest the petitioner
is with the lawyer, the easier it will be for the latter to present a strong
case for his/her client.
After the
first petition for divorce has been filed, the petitioner can sign a
"vakalatnama" is which a document giving the lawyer the authority to
represent the petitioner in court. After the petition has been received by the
court, it will send a notice and a copy of the petition to the estranged spouse
of the petitioner, asking him/her to appear before the court on a specified
date. From here on, the legal process of seeking a contested divorce will take
its own course.
Alimony
A divorce
is not just a dissolving of a personal relationship. Since marriage is a social
institution, its dissolution has far-reaching consequences on the whole family.
And these consequences are both emotional and financial. The worst sufferers of
divorce are women, who are not only find themselves bereft of the means to acquire
basic necessities like food, clothing and shelter, but are also left to take
care of the children from a broken marriage. To protect their interests, the
Indian legal system has consistently tried to better the financial situation of
women, by provisions of alimony.
Alimony is
the financial support that a spouse is required to provide an estranged partner
during and after a divorce. Alimony is usually granted to women, since they are
traditionally homemakers, and thus find it difficult to support themselves and
their children after a divorce. However, due to the concept of equality of the
sexes and with increasingly economic independence of women, alimony can now be
sought by either spouse, depending on the particular financial condition of
each. Some of the factors which determine whether alimony is to be paid, how
much and for how long are:
Current
financial support. Alimony is generally not granted by the court to the seeking
party if the latter is already receiving financial support, during the time of
the divorce.
Duration
of marriage. The quantum and duration of alimony depends on how long the couple
had been married before filing for divorce. Spouses who have been married for
more than ten years, for instance, may be granted lifelong alimony.
Age of the
recipient. Often the alimony granted to a younger spouse is for a shorter
tenure, if the court thinks that the recipient can eventually become
financially sound, with career advancement.
Financial
position of either spouse. If the divorce takes place between two parties with
unequal resources, the higher-earning spouse is generally asked to pay a
substantial amount as alimony, in order to equalize the financial condition of
the spouses. Similarly, a spouse with very profitable financial prospects is
usually asked to cough up the alimony amount.
Health of
spouse. If the seeker is in poor health, the court usually orders the other
spouse to pay a high alimony to take care of the former's healthcare expenses.
Respective
marriage laws. The terms and conditions of alimony, also vary from one personal
law to another. Thus, whether and how much alimony the seeker will be granted,
will depend upon the laws according to which he/she got married.
Maintenance
by public body. In exceptional conditions, the court can direct that the seeker
be paid maintenance after divorce, by a public body.
While in
the Western countries, alimony is an obligation ordered by the court to the
financially stronger spouse, in India it is not yet an absolute right of the
seeker. Rather the awarding of alimony, its amount and duration are determined
by the financial position and family circumstances of the respective
spouses.
Child
custody. Another aspect of divorce which leads to a great deal of emotional
trauma and legal complication, is child custody. This is because divorce
entails the breakdown of the entire family. The child is not only separated
from one of the parents, but may also lose other siblings and the wider
extended family. The Hindu Marriage Act 1955, has exhaustive laws related to
child custody and child support. If the child is below five years, the custody
is unanimously awarded to the mother. In case of older children, the custody of
a girl child is generally given to the mother, and that of the boy child to the
father. Visitation right is an important aspect of child custody, which
specifies how frequently of the estranged parent can meet his/her children.
Child
support is intricately linked to child custody, since it is most practical for
the parent taking care of the child, to receive financial support for bringing
up the child. In an overwhelming majority of divorce cases, it is the mother
who is entitled to child support, since she is the primary caretaker of the
child or children post-divorce. However, like alimony rights, child custody and
support are also of subject to respective marriage laws of the estranged
couple. In case of divorce by mutual consent, the parents should to take the
help of a lawyer in order to thrash out the details of child custody and child
support. In cases of contested divorce, on the other hand, the receiving parent
is best advised to make a strong claim for child support, under the guidance of
her lawyer. Finally, it is up to the court to specify the amount and duration
of child support, where the divorce is being contested.
NRI
Divorce
While the
procedure of getting a divorce in India is protracted enough, the situation
gets further complicated if the marriage involves one or both non-resident
Indians. The Indian legal system does not have very exhaustive divorce laws for
marriages with or among non-resident Indians. However if a couple has got
married in India under the Hindu Marriage Act 1955, the partners can file for
divorce by mutual consent, like other Indians residing in the country. If both
the spouses are residing in a foreign country, Indian law will recognize their
divorce according to the laws of that country, only if it is by mutual consent.
Even when the divorce is taking place abroad, it is always better to hire a
lawyer who is aware of Indian divorce laws relating to non-resident Indians.
The whole
procedure of going through a divorce in India is fraught with emotional, social
and legal complexities. Besides being an exceedingly traumatic personal
experience, partners, especially women, going through divorce face
discrimination from their communities and even their families. Moreover, the
long drawn-out litigation creates pressure on already stretched resources.
However, there are several state agencies as well non-government organizations,
which offer legal and emotional counselling and sometimes even financial aid,
for spouses going through divorce. The important thing is to keep one's courage
through it all and continue to fight for one's own well being.
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