All You Want to Know About Divorces in India

Introduction

Although marriage is often considered a sanctimonious bondin the Indian society, the 21^st century India is coming to terms with the fact that divorce is no longer a taboo. That is primarily also the reason why divorce rates have gone up in the country in the recent past. With more and more couples increasingly finding themselves in the middle of prolongated divorce proceedings, it has become necessary that they first understand the details of the procedure so that they are not mislead by their spouse. It is important that a person in the middle of a divorce proceedings must take an informed decision with respect to his or her rights and obligations and therefore we have tried to explain in detail every little aspect relating to a divorce proceeding in India.

Grounds for Contest Divorce

A contest divorce is one where the divorce proceedings are initiated by only one of the parties to the marriage. Section 13 (1) of the Hindu Marriage Act, 1955 provides for the grounds for a contest divorce.

They are as follows:

1. Desertion- The party who has filed the divorce petition will have to prove that the other party has left the matrimonial home voluntarily, in effect deserting the former party.
2. Adultery- The aggrieved spouse will have to furnish evidence to prove to the court that the other spouse has illicit relations with a third person. Since proving this can be very tough, the burden can be very heavy.
3. Insanity- The claiming spouse will have to show that the other spouse is not a mentally sound person.
4. Presumption of Death- The other party could claim divorce if their spouse has not been heard of by anyone for the past seven years. Under the Indian Evidence Act, the same phenomenon is assumed to lead to the death of the person and death certificate can also be granted on this basis.
5. Cruelty- The spouse wanting divorce can plead that the other party has been committing acts of cruelty on him. Also, continuation of the offence of torture is not a pre-requisite. Even a single act of cruelty entitles a person to claim divorce under this provision.
6. Conversion- If the other party has ceased to be a Hindu by converting to another religion, it is a valid ground to claim divorce.
7. Renunciation- If the other party has renounced the materialistic pursuits of this world.
8. Illness- If the other party suffers from a virulent or incurable form of leprosy.
9. Unsafe- If the other party is a patient of a venereal disease in communicable form- For example if the spouse suffers from a fatal disease that can be transmitted via intercourse.

Restitution of Conjugal Rights

In the case of desertion, an alternative to divorce can also be sought from the court, that isto seekrestitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 or for judicial separation.

But certain conditions need to be satisfied before these alternate remedies can be prayed for.

1. The party claiming for the divorce must not have contributed to the guilt of the other party.
2. The party claiming the divorce must not have condoned the guilt of the other party.

Defences if a Contest Divorce Petition Has Been Filed Against You

In a contested divorce, the burden of successfully proving the existence of one or more of those grounds lies on the spouse intending to claim the divorce. While it might be difficult to prove some of the above grounds, proving the rest can be done on a prima facie basis.

In the case of Kailash Deo v. Smt. Shanti[1], the Rajasthan High Court refused to grant divorce decree to a couple who was living separately, under different roofs for the past twenty years. Under Section 13 of the Hindu Marriage Act, 1955, there are 9 main grounds on the basis of which, a fault divorce can be claimed. Proving all the essential ingredients is no cake’s walk and if the opposite spouse is able to prove certain actions on the part of the petitioner spouse, the entire action of the latter can possibly fail. It is therefore very important to beware of one’s actions.

In the above-mentioned case, the court rejected the petition for divorce because a condition-precedent for desertion is that the party must have left the matrimonial without any substantial cause. Merely leaving the matrimonial home to live at another place shall not entitle the estranged spouse to claim divorce on the grounds of desertion. Even for other statutory grounds, possible defences which may be availed by a party against whom a petition for contest divorce has been filed are discussed below. The person should prove to the satisfaction of the court that the party seeking the divorce should not be guilty of either of the following grounds:

1. Condonation- If the other party is claiming divorce on the ground of cruelty but he or she hasdone any act, either express or implied, indicating that he/she has condoned the guilt of the partner at fault, the first party’s action for divorce shall fail.

Some higher courts have held in their judgments that filing of a suit under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights amounts to condoning the guilt of desertion. Also, cruelty must not be such as to be a minor act of annoyance but must touch a certain pitch of severity.

But a well-established principle under jurisprudence of matrimony is that condonation by the spouse does is not equivalent to condonation by the President under Article 72 of the Constitution. The guilt is only obscured and not obliterated. Moreover, the condonation of matrimonial offence is always on the condition that the guilty partner shall not engage in the same or similar offence in future.

2. Connivance- The petitioner should not have connived/consented to the commission of such an act by the other spouse.
3. Collusion- The couple must not have colluded together to commit the offence. Such a collusion makes a mockery of the justice system, and there is no remedy under court of law for such acts of mala fide

 

4. Provocation- The party seeking divorce should not have done any act to provoke the other party for doing the guilt.

Even for mutual consent divorces, the process only appears to be hassle free. Problems like withdrawal of consent by one party, may always arise at any time. Also, even the courts first try to resolve the matters by trying to preserve the holy ties of matrimony. Even the legislation mandates them to first refer to the parties the option of amicable settlement in Lok Adalat. It is only if the court is sure beyond any reasonable doubts of any possibilities of conciliation that if grants the divorce decree.

Mutual Consent Divorce

Gradually, the parliament began to realise that in many cases, parties faced difficulty in obtaining a divorce as none of 9 grounds mentioned under section 9 applied to the case. However, both the parties still wanted a divorce due to reasons other than those mentioned under Section 13. Therefore, by virtue of an amendment, they inserted Section 13B to the Act. It provided for Mutual Consent Divorce, that is, a petition for divorce, filed jointly by both the parties. As a general rule, the consent in a mutual consent divorce should continue on behalf of both the parties till the time the divorce decree is issued. The usual steps required to be followed under Section 13B in a mutual consent divorce are as follows:

1. The couple must prefer a joint application for mutual consent divorce under Section 13B of the Act.
2. In their application, they must categorically show that for the one year immediately preceding the application, they have not been able to live as husband and wife. For this though, it is not necessary that they must have lived separately. Even if they have lived under one roof, they must be able to establish before the court that they did not live as husband and wife.
3. Post this, the court grants the couple a mandatory cooling-off period of anywhere between 6 to 18 months in which they are to try and make an attempt at making their marriage. This cooling off peiord can be waived off by the court at discretion.
4. Post the cooling-off period, if the couple is still interested in getting a divorce, a second joint application must be made.
5. It is only after this second joint application is filed, and the court is satisfied of the bona fides of both parties, that it grants the decree of a mutual consent divorce.

One of the major problems that is common with most couples going for mutual consent divorce is that either one of the parties withdraws his or her consent.

What to Do When One of the Parties Withdraws Consent During Mutual Consent Divorce

Earlier, in Nacchatar Singh v. Harcharan Kaur and similar other judgements, the position of law was that since the application for mutual consent has been preferred by both parties together, the application shall be considered withdrawn only if both of them mutually decided to withdraw. As a result, unilateral withdrawal by one party was not given heed to by the courts. Unfortunately, what the court failed to realize was that a lot of times, the wife gave her consent by force or under influence of her family members. Therefore, a change came to be brought about with judgments like Hitesh Bhatnagar v. Deepa Bhatnagar, when the court observed that consent could be withdrawn unilaterally by either party.

Nonetheless, it wasn’t late before parties started taking wrongful advantage of this interpretation. Wives would often take the alimony amount in lump sum in lieu of their maintenance, from their husbands and would later withdraw their consent from the mutual consent divorce and threaten them to succumb to pay more money lest they shall not give their continued consent. This was a pitiful situation and therefore in Rajat Gupta v. Rupali Gupta, the situation was remedied with the following observations:

1. Consent cannot be withdrawn once the party wishing to withdraw the consent has already received a certain amount or other material pursuits in consideration of the divorce settlement.
2. If the party still wishes to withdraw his/her consent, he/she will have to return to the other party whatever amount they might have received from the other party in lieu of the divorce and they would have to be restored back to the position as against each other, in which they were before the filing of the joint petition under Section 13B.

Waiver of Cooling-Off Period in Certain Cases

In certain exceptional circumstances, when the Courts have been satisfied of the extreme distress being caused to the parties by the mandatory cooling-off period, they have used their extra-ordinary jurisdiction and allowed waiver of the minimum 6-month cooling off period. For example, in Amardeep Singh v. Hardeep Kaur, when the Court was apprised on the fact that all previous attempts at reconciliation by the couple through negotiation, counseling etc.

had failed and that the parties had genuinely agreed upon all the issues pertaining to alimony, child custody etc. before applying for mutual consent divorce, it held that forcing the cooling-off period on them would only prolong their agony. The parties had by their conduct expressed an unequivocal and irrevocable intention to separate by mutual consent and the Court opined that it has no role interfering with that decision.

Irretrievable Breakdown of Marriage

Irretrievable Breakdown of marriage is a ground for divorce, which though not provided for under the Hindu Marriage Act, 1955 or any other personal law in India, has been recognised by the Courts in exceptionally rare cases to grant respite to couples whom the law relating to divorce has failed. There are no definite circumstances which can be termed irretrievable breakdown of marriage. However, an important fact that the Court considers is that there is no scope of the marriage working and also that the initial petition that was filed should have been of a mutual consent divorce and not a contest divorce.

The first time that Supreme Court had granted divorce to a couple on the ground of irretrievable breakdown of marriage was in 2009 in the case of Anil Kumar Jain v. Maya Jain. The Apex Court exercised its powers under Article 142 of the Constitution of India, 1950 to grant divorce the couple on this ground. The couple had filed a petition for mutual divorcebut the wife later withdrew her consent. She admitted in Court that she was not willing to live with the husband and they had already lived separately for seven years. This led the Court to a logjam. On the one hand, the wife refused to live with the husband under one roof and on the other she withdrew her consent from the mutual consent divorce. As continued consent of both parties is a sine qua non for mutual consent divorce, the Court found its hands tied. The marriage had practically broken. Therefore, it gave divorce on the grounds of irretrievable breakdown of marriage.

Since then, the Supreme Court has been relying on the ratio of Anil Kumar Jain’s case to grant divorce to couples on the ground of irretrievable breakdown of marriage. Though there is a bill pending before the parliament for inclusion of irretrievable breakdown of marriage as a statutory ground for divorce under the Hindu marriage Act, 1955, the same has not been passed and is therefore yet to become law. The downside therefore is that only the Supreme Court has been able to grant divorce on this ground using its power under Article 142 and the High Courts and the lower courts have been unable to do the same.

Custody in Matters of Divorce

The Guardians and Wards Act, 1890 is the law that governs custody rights of parents after a divorce. The court considers the doctrine of ‘best interests of the child’ while deciding the issue of custody. It is generally believed that the best interest of the child lies in getting love and affection from both the parents. Therefore, unless one of the parents is found guilty of any offence involving moral turpitude or any other rare circumstance, both the parents are usually given joint custody of the child.

The Court also considers the economic conditions of the parents to determine which parent should be given the custody for welfare of the child. Usually the custody of children below the age of 5 years is given to the mother and in case the mother is not able to support the education and other necessities of the child, the father will be asked to pay maintenance to the mother for the well-being of the child.

Alimony in Matters of Divorce in India

Alimony is one of the two kinds of maintenance that a divorced, dependent spouse can claim from the other, dependent spouse. Alimony differs from maintenance in that while alimony can only be demanded post the divorce (even though the basic objective behind the concept of alimony is to ensure maintenance of life of dignity for the entitled spouse) maintenance under Section 125 of the Code of Criminal Procedure can even be claimed when the marriage is in a perfectly sound condition.

As far as alimony is concerned, the Supreme Court has set a maximum limit of 25% of the net salary of the husband to be just and proper, while it also emphasized upon the fact that the amount could be adjusted (lowered) having regard to the financial abilities of the husband and other factors such as the number of people dependent on him etc. For example, the Apex Court once lowered the monthly maintenance from Rupees 23,000 to Rs 20,000 keeping in mind that he married again and had a child from the second marriage, to look after.

Also, alimony is not something the spouse can claim as a matter of right. It is only if the court is satisfied that it will grant them with alimony from the other spouse. In many cases, the courts in India have also denied alimony to women who were unemployed, but, qualified. It observed that since the wife was qualified, she could notbe allowed to sit idle and be a ‘parasite’ or burden on the husband.

Lastly, a woman is only allowed maintenance till the time she remains single. If she marries again or, even if unmarried, is proved to be in a relationship with another man, the first husband no longer has an obligation to maintain her.

RCIC’s Experience in Handling Divorce Matters

Ricky Chopra International Counsels specialises in handling complicated and intricate issues in a divorce matter. We have decades of experience of rendering customised advice tailored to the specific needs of our every client. Our lawyers are well-versed with the entire procedure and have appeared before family courts, assisted clients in negotiating terms of the divorce settlement, drafted custody and maintenance applications etc. Our passion and commitment bring out the best results and that is one of the reasons why we are the preferred law firm for our clients.

Read more about RCIC’s practice as Best Divorce Lawyer in Delhi & Gurgaon

Conclusion

A divorce proceeding has several aspects associated with it. A couple that is undergoing divorce proceedings needs to be mindful of these factors. Even if one small aspect is ignored, the person might end up making a decision which he or she might regret later.

Also, if the couple is going for a mutual consent divorce, arriving at a consensus with respect to most of the issues don’t pose much of a problem. However, if it is a case of contest divorce, both parties must be careful. In these cases, it is better to take legal consultation.