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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. All civil and inter-community marriages are governed by the Special Marriage Act, 1956.
Divorce in India is fundamentally of two types: Divorce with Mutual Consent & Divorce without Mutual Consent.
Divorce with Mutual Consent
The mutual divorce is explained under Sec. 13B of the Hindu Marriage Act 1955 and Sec. 28 of the Special Marriage Act 1954, where the spouses both agree to separate peacefully. In this case, they take their own decision by agreeing with each other and seek the help of the judiciary to give their separation a legal status.
The procedure for mutual divorce can be briefed up in three steps:
Contested Divorce (Divorce without Mutual Consent)
For filing a contested divorce, there are certain grounds which are mentioned under Section 13 of the Hindu Marriage Act 1955 and Section 27 of the Special Marriage Act 1954:
Cruelty: Cruelty means both physical and mental cruelty by the wife or her family members.
Adultery: Adultery means to be in a sexual relationship with any person other than the spouse.
Desertion: If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
Conversion: In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
Mental Disorder: Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity.
Leprosy: In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
Venereal Disease: If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
Renunciation: A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
Not Heard Alive: If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead.
When two people are married, they have an obligation to support each other. This does not necessarily end with divorce. Under the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage.
The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the husband having sufficient means. When deciding how much alimony is to be paid, the courts will take into account the earning potential of the husband, his ability to regenerate his fortune (in case, say, the property is given to the wife) and his liabilities.
Duration and amount of alimony will be guided by our experienced divorce lawyers.
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