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DIVORCE !

and
SEPARATION

The Dissolu,on
of Muslim
Marriage Act,
1939

The Special
Marriage Act,
1956

The Parsi
Marriage and
Divorce Act,
1936

The Hindu
Marriage Act,
1955

The Foreign
Marriage Act,
1969

Central
legisla,ons
on divorce

Indian Divorce
Act, 1869

Ways of obtaining divorce

MUTUAL CONSENT

Mutual consensus has to be


arrived at by the husband and
wife on:
1. Alimony or maintenance issues
2. Child Custody

CONTESTED

One party has to prove cruelty


(physical & mental), deser,on,
unsoundness of mind( of
Incurable form), impotency, etc.
to obtain divorce from court.

ANNULMENT

Grounds for annulment are fraud,


pregnancy of wife by person
other than the husband,
impotency prior to the marriage
that subsists even at the ,me of
ling the case.

Status of the husband and wife

Grounds to determine
maintenance by court

Salary/ Income of the husband


Salary /Income of the wife
Liabili,es of husband, if any
Dependants
Reasonable wants of claimant
Financial background
Movable & immovable proper,es of the
husband

Grounds for divorce under


the Hindu Marriage Act,1955

Adultery The act of indulging in any kind of sexual rela,onship outside the
marriage is termed as adultery. It is also cons,tutes a criminal oence for males. One
single act of adultery is enough for either spouse to le a divorce pe,,on on this
ground (1976 amendment).

Cruelty Any kind of mental and physical injury that causes danger to life, limb and
health cons,tutes cruelty. The intangible acts of cruelty through mental torture are
judged on a series of incidents. Food being denied, con,nuous ill treatment, abuse to
acquire dowry, perverse sexual act/s, etc. are included under the deni,on of cruelty.
Either spouse can le a divorce pe,,on based on this ground.

Deser,on If one of the spouse voluntarily abandons his/her partner for a
minimum period of two years, the abandoned spouse can le a divorce pe,,on on
the ground of deser,on.

Conversion If either spouse converts to a dierent religion(any religion other than
Hinduism) then their partner may le a divorce pe,,on based on this ground.

Other grounds for divorce under


the Hindu Marriage Act, 1955

Leprosy If either spouse has a virulent and incurable form of leprosy, then their
partner can le a divorce pe,,on on this ground.

Venereal Disease If either spouse is suering from a communicable disease such
as AIDS then their partner can le a divorce pe,,on on this ground.
Renuncia,on If either spouse renounces all worldly aairs by embracing a
religious order then their partner can le a divorce pe,,on based on this ground.

Not Heard Alive If the spouse is not seen or heard to be alive by those who are
expected to be naturally heard by the person, for a con,nuous period of seven
years, the person is presumed to be dead and their partner has the right to le a
divorce pe,,on on this ground.

No Resump,on of Co-habita,on It becomes a ground for divorce if the couple
fails to resume their co-habita,on ader the court has passed a decree of separa,on.

Grounds for divorce under


Muslim Marriage Act, 1939

The husbands whereabouts are unknown for a


period of four years.
The husband has failed to provide maintenance to the
wife for a minimum of two years.
The husband has been under imprisonment for
seven or more years.
The husband is unable to meet marital obliga,ons.
If the woman is married before deen and decides to
end the rela,onship before she turns eighteen.
The husband indulges in acts of cruelty.

Grounds for divorce under Indian


Divorce Act, 1869 (for Chris,ans)

Adultery
Conversion to another religion
If either spouse has leprosy or communicable venereal disease or is of
unsound mind for a minimum of two years, then their partner has the op,on
of ling a divorce case.

Not been seen or heard to be alive for a period of seven or


more years.
Failure in observing the res,tu,on of conjugal rights for at least
two years.

Inic,ng cruelty and giving rise to mental anxiety that can


be injurious to health and life.
Wife has an addi,onal ground to le a divorce case based on the
grounds of rape, sodomy and bes,ality. Husbands do not have this
right.

Grounds for divorce under


Parsi Marriage and Divorce Act, 1936

In case of a con,nuous absence of either spouse for a minimum period of


seven years, their partner can le a divorce pe,,on on this ground.
Non-consumma,on of marriage within one year is a ground of divorce for
either spouse.
If either spouse is of unsound mind then their partner can le a divorce
pe,,on on this ground provided that the partner was unaware of this fact
at the ,me of marriage. Also, the divorce pe,,on must be led within
three years of marriage.
In case of pregnancy by a man other than the husband, provided the
husband was unaware of the incident during the ,me of marriage and that
he did not undergo sexual intercourse with her ader gefng to know about
this fact, he can le a divorce pe,,on on this ground within two years of
marriage.
Adultery, bigamy, fornica,on, rape, or any other type of perverse sexual
act/s are grounds other grounds for divorce.

Any act of cruelty is a ground for divorce for either spouse.


If either spouse is suering from any venereal disease (such as AIDS)
then their partner can le a divorce pe,,on based on this ground.
If the wife is forced into pros,tu,on then she has a right to le a divorce
pe,,on against the husband.
If either spouse is sentenced to prison for seven years or more then
their partner has a right to le a divorce pe,,on on this ground.
In case of deser,on of either spouse for two or more years their
partners have a right to le a divorce pe,,on on this ground.
Non-resump,on of cohabita,on ader passing an order of maintenance
or a decree of judicial separa,on is a ground for divorce for either
spouse.

Steps to get a divorce

The pre condition for divorce for Hindus is that the couple should be living separately
for at least one year.
A lawyer should be hired.
There are two types of approaches to file an application for divorce which areby mutual consent or by contest.
The papers to be submitted in the court include the Income Tax returns for three years,
details of present income, the purpose for applying the divorce, birth and family details
and the details of the assets possessed.
A Vakalatnama has to be issued in favor of the lawyer to present the case.
The grounds for Hindu divorce can be anything from adultery, desertion, mental
disorder, renunciation, life threatening disease (explained above).
Once the application is submitted, the case comes up for hearing after six months.
During this period, the couple is asked to reconsider their decision for divorce.
In case the couple does not appear in the court after this cooling period the
application stands void automatically. The couple also has the option of withdrawing
the application during these six months.
During the divorce process, the couple should come to a conclusion related to custody
of child, return of marriage gifts, post divorce maintenance and litigation expenses.
In cases of divorce by mutual consent, the alimony amount is decided mutually, but in
contested cases, the courts of law steps in to decide the alimony amounts, if the parties
fail to do so.

The process is ini,ated by ling a pe,,on, supported by


adavits from both partners, in the district court. Known
as the First Mo,on Pe,,on for Mutual Consent Divorce,
this should contain a joint statement by both partners,
that due to their irreconcilable dierences, they can no
longer stay together and should be granted a divorce by
the court.

Ader six months, the couple should le a Second Mo,on


Pe,,on and reappear in the court. This gap is given
between the two mo,ons, to oer the estranged couple
adequate ,me to reconsider their decision of dissolving
their marriage. Ader hearings from the partners, if the
judge is sa,sed that all the necessary grounds and
requirements for the divorce have been met, the couple is
granted a decree of divorce by mutual consent.

If either party withdraws the divorce pe,,on within 18


months of the ling of the First Mo,on Pe,,on, the court
will ini,ate an inquiry. If the concerned party con,nues to
refuse consent to the divorce pe,,on, the court will no
longer have the right to grant a divorce decree. But if the
divorce pe,,on is not withdrawn within the s,pulated 18
months, the court will pass a divorce decree on the basis
of mutual consent between both par,es

Procedure of ling for


divorce by mutual consent
Documents
to carry

Factors for
discussion

Income tax statements


for the last 2-3 years.

Custody of the Child

Details of the
pe,,oners profession
and present
remunera,on.

Alimony of the wife

Informa,on related to
family background of
the pe,,oner.

Return of Streedhan

Details of proper,es
and other assets
owned by the
pe,,oner.

Whenever it appears to the district court that the wife has no independent income
sucient for her support and the necessary expenses of the proceeding, it may, on the
applica,on of the wife order the husband to pay to her the expenses of the proceeding
or such a sum having regard to the husband's income which may seem resonable to the
court.

Women will have exclusive rights over her


'streedhan' (personal wealth), mainly in the form
of her jewellery and cash gids. She will be
en,tled to her share in any jointly-held assets
(house, shares, bonds, mutual funds, saving
schemes) acquired and jointly paid for during the
course of the marriage.

DETAILS OF
ALIMONY

The Supreme Court has ruled that even though bigamy may be illegal under Hindu law,
such a marriage can't be declared immoral and the 'illegal' wife cannot be denied alimony
as long as she did not know about the previous marriage.

The ruling came with the apex court legi,mising the maintenance claim of a Hindu wife
whose marriage was declared illegal on grounds that it was bigamy. The court said her
husband was liable to pay alimony to her and maintenance for their children.

CHILD
CUSTODY
The court may pass a decree as it may
seem to be just and proper with respect to
the custody, maintenance and educa,on of
minor children, consistently with their
wishes, wherever possible.
The Court has the power to revoke,
suspend or vary all such orders and
provisions with respect to the custody of a
child ,ll the ,me the decree is pending.