Know about types of Divorce Petitions
First understand that in India, rules for divorce are connected to religion. Divorce among Hindus, Buddhists, Sikhs, and Jains is governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869 respectively. All civil and inter-community marriages are governed by the Special Marriage Act, 1956.
A spouse may initiate to give a legal notice with the help of a lawyer for divorce to the other spouse before ending the husband and wife relationship. It is formal communication which is the first step to break the ‘husband and wife’ connection although issuing of legal notice is not mandatory for filing of any divorce petition.
A couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other, thereby.
Divorce Petitions can be broadly differentiated in two major types:
1. Consented
2. Contested
Consented Divorce:
When husband and wife both agree to a divorce, the courts will consider divorce with mutual consent. The factors to file a petition for Consented divorce are;
· The couple should be separated for over a year and be able to prove that they have not been able to live together for more than 1 year. (Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954 and Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at least two years.)
· It is relatively easy, inexpensive, and not as traumatic as a contested divorce.
· Matters such as children’s custody, maintenance, and property rights could be agreed to mutually.
There are three aspects regarding which a husband and wife have to reach a consensus before applying for a consented divorce.
1. Alimony or maintenance of partner and children.
2. Child Custody: This must necessarily be worked out between the couple. It can also be shared or joint or exclusive depending upon the understanding of the spouses.
3. Property. Both the parties must decide who gets what part of the properties. This includes both movable and immovable property.
The cooling period of 6 months can be waived by the court depending on the urgency of the matter.
Contested Divorce:
In case of a contested divorce, there are specific grounds on which the petition can be made by either of the spouses. The common reasons are as follows, which is applicable to all religions.
1. Cruelty
Cruelty may be physical or mental cruelty. If one of the partners has a reasonable apprehension and sufficient evidence that there is a danger to life or injury to health, bodily, or mental. It’s one of the most common reasons for divorce globally including India.
2. Adultery
Marriage is all about trust and commitment to each other and if any of the partners breach this trust, it causes irreparable injury to the other. Adultery is the second common reason for divorces among couples. The alleging partner should be able to prove the adultery relationship beyond doubt of apprehension to get any relief.
3. Abandonment
One spouse abandoning the other with or without reasonable cause is a reason for divorce and refuses to continue as a couple. However, the spouse who abandons the other should intend to desert and there should be no intention to reunite. The year of abandonment is different for each of the act which they fail into. Staying away because of professional/personal commitment is not considered as abandonment.
4. Conversion to another Religion
Divorce can be sought by a spouse if the other spouse converts to another religion.
5. Mental Disorder
If the partner is incapable of performing the normal duties required in marriage on account of mental illness, divorce can be sought.
6. Communicable Disease
If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or an infectious form of leprosy, the Hindu Divorce Law in India says that the other party can obtain a divorce.
7. Renunciation of the world
If the spouse renounces his/her married life and opts for ‘sannyasa’, the distressed spouse may obtain a divorce.
8. Presumption of Death
If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can seek the decree of divorce.
The normal time frame of any contested divorce is 2–5 years. Couples are advised to explore this provision only if there is no possible chance of an amicable settlement of their disputes.
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Adv. Anupam Agarwal
About the Author:
Anupam Agarwal is a practicing lawyer with more than 18 years of Corporate and Legal Experience. His expertise lies in Family Law, Corporate Law, Company Matter, and General Litigation
Email: anupam@rslegal.in
Phone: +91–97406 45762
