Table Of Content:
Divorce is the legal end of the marriage. The thoughts and beliefs toward the marriage system keep changing with time. The divorce laws in India are also modified as per the needs of the time. It is, therefore, necessary to understand the new divorce rules in India. In the earlier days of India, there used to be very few cases of divorce. But with time, it has been observed that the mindset of people has changed.
Now, the partners do not hesitate to move toward divorce if they feel that they cannot continue with the marriage. The courts make rules to settle divorce cases and to provide justice to both parties. This article will guide you in understanding the changes in new divorce rules .
Topic | Information |
---|---|
Grounds | Divorce can be granted on several grounds, including adultery, cruelty, desertion, conversion, mental disorder, venereal disease, and irretrievable breakdown of marriage. |
Jurisdiction | The district court where the couple last resided together has jurisdiction over divorce cases. |
Residency requirements | At least one spouse must have resided in India for a minimum of six months before filing for divorce. |
Waiting period | There is a mandatory waiting period of six months after filing for divorce, during which the court may attempt to reconcile the couple. |
Separation agreement | The couple may try to reach a separation agreement, which will then be reviewed and approved by the court. |
Mediation | The court may suggest mediation as a way to resolve disputes and reach a settlement. |
Contested vs. uncontested divorce | Divorce can be either contested or uncontested. In a contested divorce, the court will hold a trial and decide on the terms of the divorce. In an uncontested divorce, the couple agrees on all terms, and the court simply approves the agreement. |
Alimony | The court may order one spouse to pay alimony to the other, depending on various factors such as the duration of the marriage, the earning capacity of each spouse, and the standard of living during the marriage. |
Child custody and support | The court will make decisions regarding child custody and support based on the best interests of the child. Both parents have a legal obligation to provide financial support for their children. |
Appeal | Either spouse can appeal the decision of the district court to a higher court if they are not satisfied with the ruling. |
Grounds for Divorce | Previous Law | New Law |
---|---|---|
Adultery | Only the spouse who was cheated on could file for divorce | Both spouses can file for divorce |
Mental/Physical Cruelty | Includes physical violence, harassment, and mental torture, but did not have a clear definition | Includes physical violence, harassment, and mental torture, but now also includes withholding financial support or denying access to a child |
Desertion | Must have been for a continuous period of 2 years | Reduced to a continuous period of 1 year |
Conversion | Not recognized as grounds for divorce | Recognized as grounds for divorce |
Irretrievable Breakdown | Not recognized as grounds for divorce | Recognized as grounds for divorce, but requires a one-year separation period |
It’s worth noting that these changes are part of the 2024 amendment to the Hindu Marriage Act, which only applies to Hindus. Other religious groups have their marriage laws and may have different grounds for new divorce rules.
According to section 13B (2), when the couples move to the court for divorce with mutual consent, the court grants them a mandatory six-month period to consider any chances of change in their decision.
This period is granted by the court with the intent to save the marriage. After the end of six months, the couple may decide to reunite or proceed with a new divorce rules.
The rehabilitation period of six months was mandatory. But as per the new rule, it is no longer mandatory and is left at the discretion of the court.
The court may decide as per the facts and circumstances of the specific case whether there is a need to order a six-month rehabilitation period or whether the couple should be immediately allowed to divorce.
This was observed in the Supreme Court ruling in the Akanksha vs Anupam Mathur case. The court was satisfied that the couple had made a conscious decision to divorce, and there was no point in requiring the parties to wait for another six months for divorce.
The court decided to waive the six months and ordered the dissolution of the marriage.
When the couple decides that they cannot continue living as married partners, this situation is called separation or breakdown of the marriage. The partners may or may not live under the same roof, but they do not live as husband and wife.
There are no separate rules for this issue in the divorce law .
It is a matter of the court’s discretion whether the separation can form the ground for divorce.
If the court is of the view that there is no possibility that the couple can reunite, or if both or any of the spouses are unwilling to live with each other, it can allow them to proceed with the divorce.
In Sangamitra Ghose Vs. Kajal Kumar Ghosh case, the Supreme Court observed that the marriage between the parties was irretrievably broken down and that there was no possibility to repair the bond of the marriage. The apex court, therefore, ordered that the couple divorce on the grounds of the irretrievable breakdown of the marriage.
As per the Hindu Marriage Act , of 1955, the court may order the payment of maintenance. This is to help the women to maintain the same standard of living after divorce. If the marriage is not in Hindu law, the woman is eligible to claim maintenance under Section 125 of the Criminal Procedure Code.
The live-in relationship status is treated as a marriage in the eyes of the law. Therefore, a woman who was in a live-in can also claim maintenance from the live-in partner under the Code of Criminal Procedure. Also, if the partners have been in a live-in relationship for a long time, then there is no need to provide strict proof of marriage.
As per the new divorce rules in India , the victim, i.e. the wife or the live-in partner, can claim relief under the Protection of Women from Domestic Violence Act, 2005, even if she is not eligible for a claim as per the Criminal Procedure Code. The victim woman can claim even higher relief under the Protection of Women from Domestic Violence Act than what is contemplated under the Code of Criminal Procedure.
As per the new divorce rules, adultery can be considered a ground for divorce in India, but it is not punishable. The court observed that punishing the spouse and his or her lover with whom he or she indulged in adultery cannot be a remedy to save the marriage.
The partners can claim divorce based on the grounds of adultery, but there is no punishment for adultery.
As per Muslim law, merely saying ‘Talaq’ three times can be the basis of divorce in India. This practice is unfair to Muslim women, as it gives Muslim men the right to unilaterally dissolve the marriage. The arbitrary practice of triple talaq is against the rights of women. The ‘Triple Talaq‘ has now been declared unconstitutional and has no significance in the eyes of the law as per the new divorce rules in India.
The divorce can be ordered only by the Civil Court: https://districts.ecourts.gov.in/ . If the Christian Church or any other personal law grants the divorce, such divorce shall be invalid. The Apex Court in the Molly Joseph vs George Sebastian case held that the competent court could only do dissolution of marriage. The order or decree of the Civil Court shall prevail and override any order passed by personal law or Ecclesiastical Tribunal.
THE MARRIAGE LAWS (AMENDMENT) BILL, 2013
Be it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:
28B (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 28A, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would, in all the circumstances, be wrong to dissolve the marriage. (2) Where the grant of a decree is opposed by virtue of this section, then,— (a) if the court finds that the petitioner is entitled to rely on the ground set out in section 28A; and (b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would, in all the circumstances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.
28C. The court shall not pass a decree of divorce under section 28A unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage. Explanation. In this section, the expression “children” means (a) minor children including adopted children; (b) unmarried or widowed daughters who do have not the financial resources to support themselves; and (c) children who, because of the special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.
28D (1) Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 28A on a petition made by the wife, order that the husband shall give for her and children as defined in section 28C, such compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such an amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband. (2) Any order of settlement made by the court under sub-section (1) shall be secured, if necessary, by a charge on the immovable property of the husband.
AS PASSED BY THE RAJYA SABHA ON 26TH AUGUST, 2013
The new divorce rules in India amendment bill was passed by the Indian Parliament in 2013, and it brought about some crucial changes to the existing marriage laws in the country.
Legal divorce advice is essential for several reasons, as divorce can be a complex and emotionally challenging process. Here are some reasons why seeking legal divorce advice is necessary:
In a contested new divorce rules, one spouse files for divorce, but the other spouse does not agree to the terms or the divorce itself. This leads to court proceedings where both parties present their arguments and evidence. The court then decides on issues such as division of property, alimony, child custody, and support.
A mutual consent divorce occurs when both spouses agree to the new divorce rules and its terms, including property division, alimony, and child custody. This type of divorce is generally faster and less expensive, as it avoids lengthy court battles. In India, under Section 13B of the Hindu Marriage Act, 1955 both parties must have lived separately for at least one year before filing.
A no-fault divorce allows a couple to dissolve their marriage without proving wrongdoing by either party. The grounds for this type of divorce typically include irreconcilable differences or an irretrievable breakdown of the marriage. Many jurisdictions have adopted no-fault new divorce rules to simplify the process.
In a fault divorce, one spouse alleges that the other spouse’s misconduct caused the marriage to fail. Common grounds include adultery, cruelty, abandonment, and habitual drunkenness. The accusing spouse must provide evidence to support their claims. Fault divorces can be contentious and require detailed legal proceedings.
A summary divorce is a simplified divorce process available in some jurisdictions for couples who meet specific criteria, such as a short marriage duration, no children, minimal property, and mutual agreement on new divorce rules terms. This process involves less paperwork and fewer court appearances, making it quicker and more cost-effective.
A default divorce occurs when one spouse files for divorce, but the other spouse does not respond or appear in court. In such cases, the court may grant the divorce in favor of the filing spouse by default. This type of divorce can expedite the process if the non-responding spouse is uncooperative or unreachable.
In a collaborative new divorce rules, both spouses and their attorneys commit to resolving divorce issues outside of court through negotiation and cooperation. This approach focuses on reaching mutually beneficial agreements and maintaining a respectful relationship, especially when children are involved. If the process fails, the involved attorneys must withdraw, and new legal representation is required for court proceedings.
Property settlements in new divorce rules involve the division of marital assets and debts between the spouses. This process aims to fairly distribute property acquired during the marriage, taking into account various factors such as the tenure of the marriage, contributions of each spouse (both financial and non-financial), and each spouse’s future needs. Property can include real estate, bank accounts, investments, retirement funds, vehicles, and personal belongings. Courts generally encourage spouses to reach an agreement through negotiation or mediation, but if they cannot agree, the court will decide based on equitable distribution principles or community property laws, depending on the jurisdiction.
Child custody in new divorce rules determines where the children will live and how decisions about their upbringing will be made. There are two primary types of custody: legal custody and physical custody. Legal custody refers to the right to make major decisions about the child’s life, such as education, healthcare, and religious upbringing. Physical custody refers to where the child will live and the day-to-day care.
Custody can be awarded as sole or joint. Sole custody means one parent has primary custody, while joint custody means both parents share responsibilities. Courts decide custody based on the best interests of the child, considering factors like the child’s age, health, emotional ties to each parent, the parents’ ability to care for the child, and, in some cases, the child’s preference. Custody arrangements can be modified if there is a significant change in circumstances affecting the child’s well-being.
It is essential to change and modify the existing new divorce rules in India and laws according to the changes in society. It is important to consider various aspects of a case from the point of view of men and women. Divorce and marriage are both life-changing events. The discretionary powers of the Courts also play an important role in deciding the cases of divorce. Marriages cannot be abruptly dissolved. The new divorce rules in India and grounds for divorce are therefore required to be amended as per the needs of society.