Divorce Laws in India

Divorce laws in India

India being a secular state is ruled by various laws for various religions. Laws of marriage and divorce are also governed on the basis of religions.  The term Hindu includes Jains, Budh and Sikh; people falling under Hindu religion are governed by the Hindu Marriage Act,1955. Muslims on the other hand fall under Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 &The Muslim Women(Protection of Rights on Divorce) Act,1986. Catholics or Christians are ruled by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872. Parsis are considered under The Parsi Marriage & Divorce Act-1936. In India we also have a secular marriage law called the Special Marriage Act,1954.

Broadly speaking there are two ways of getting a divorce decree in India; first is the Divorce by Mutual Consent and second is the Contested Divorce.

Divorce by mutual Consent:

This is the simplest way of coming out of a marriage. As the name suggests since both the parties agree for divorce it’s called divorce by mutual consent. The alimony, maintenance and child custody are decided by husband & wife together. Child Custody in a Mutual Consent Divorce can be a joint custody or exclusive on the basis of mutual understanding of the spouses.

Duration of Divorce in Mutual Consent may vary from one month to six months or more depending on the state it’s filed in and on the basis of the respective High Court directions.

Contested Divorce:

As suggested by the name, this is a contested divorce. Contested divorce is based on certain grounds that a partner is subjected to when married. These grounds of judicial separation of a couple are mentioned in the Hindu Marriage Act and all the other acts pertaining to marriage.

Under the following circumstances a spouse may file for divorce in India.

  1. That the partner after the solemnization of marriage has voluntarily had sexual intercourse with a person other than his/her spouse
  2. That the petitioner has been treated with cruelty by his/her spouse.
  3. Has deserted the petitioner for a continuous period of  2 years.
  4. Has changed his/ her religion
  5. Has been of unsound mind
  6. Has been suffering from an incurable form of leprosy
  7. Has been suffering from a venereal disease
  8. Has renounced the world by entering into a religious order
  9. Has not been heard of being alive for a period of seven years.

Annulment of Marriage:

This is another way of dissolving a marriage in India. The process for the annulment stands same as that of divorce, though the grounds on which annulment takes place are different from the grounds of divorce. The grounds of annulment are as follows:

  1. Fraud or misappropriation by either party
  2. Pregnancy of wife by a man other than her husband
  3. Impotency that existed before the marriage and is continuous

Annulment maintains the status of the parties as it would be if they were not married at all.

Void Marriages:

A marriage is said to be void under the following circumstances.

Bigamy:

Under any circumstances if either of the party has a spouse from a previous marriage living at the time of commencement of this marriage the marriage is considered to be void from the very beginning. It is void ab initio and non est, i.e. nonexistent

Marriage amongst people who fall within the degree of prohibited relationships:

People who fall under the degrees of prohibited relationships under section 3(g), Hindu Marriage Act of 1955 cannot form a legally recognized union, hence the marriage is considered to be void.

Sapinda relations:

Persons falling within degrees of prohibited relationships:

Section 3(g) of the Hindu Marriage Act, 1955 defines ‘degrees of prohibited relationships’. It provides as follows:

Lineal ascendants are to be seen from both sides, i.e. from the father’s side as well as from the mother’s side. So both the father and mother are lineal ascendants. Similarly father’s father is a lineal ascendant whereas mother’s mother is also a lineal ascendant. But a paternal grandmother is not a lineal ascendant but the wife of a lineal ascendant and hence would fall under clause ii. Similarly a maternal grand-father would fall under clause ii being the husband of a lineal ascendant. Clause ii would also cover daughter-in-law and son-in-law being the wife and husband respectively of one’s lineal descendants i.e. son and daughter respectively. A paternal Aunt (Chachi) and a maternal Aunt (Maami) would fall under clause iii and two siblings along with other relations described in clause iv also fall in degrees of prohibited relationships.

Sapinda relations:

A marriage is considered to be void if a person from one generation decides to marry any relative falling in four generations upwards from him in the father’s side and three generations in the mother’s side. Such marriages are void unless otherwise stated in one’s customs and practices.

Time duration varies from case to case when it comes to obtaining divorce.

Disclaimer:- This is only generic information on Indian Laws, which may be subject to change regard being had to legal amendments from time to time and should not be relied on for any legal action or inaction. Legal Nexus will not be liable for any damages or losses, direct or indirect, suffered or incurred by any user who chooses to proceed on the basis of reliance on the information provided herein.

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