Divorce and Indian Culture never go hand in hand. According to the processes and religious customs taking a divorce or filing for one is considered to be unethical and it leads to conflicts in society which is why it is avoided. However, we have moved towards globalization, and understanding the legal process to take a divorce is valid and ethical. The divorce rate in India is really low because of the patriarchal system and the rights which are unknown by most women. The societal pressure and bigotry mindset make it difficult to have even a mutual divorce. Most of the marriages are not even registered which creates a problem. The custody related to the child is another issue that takes time and the hearings in the court keep on increasing. Usually, the root causes of higher divorce rates are harassment, daughter-in-law and mother-in-law do not gel well, family clashes, dowry threat, extramarital affairs, forced to have children, and even marital rapes are now concerns. According to Indian laws, divorce is considered to be the dissolution of a marital relation or union between two people. The laws and legal Procedure To Divorce In India have been set up in that order. Divorce also can deal with child custody and alimony.
India is a diverse country which is why there are no uniform laws for divorce in India. There are a set of laws that govern this as it comes under personal laws.
Special Marriage Act (1954)
It allows Indian nationals to marry and divorce each other irrespective of the religion they have. Section 27 allows the people to provide grounds under cruelty, presumed death, leprosy, adulteration.
Hindu Marriage Act (1955)
Allows all the Hindus extending to Sikh, Jain, and Buddhism. Divorce under section 13 for cruelty, unsound mind, leprosy this act is validated and any person can take a divorce under this. Under this, there is an important category, Section 13(b) which has Divorce by consent. If both the parties have been living separately for more than a year and with joint consent, they can part their ways.
The Divorce Act (1869)
Domicile Christians can divorce under this.
Women Rights After Divorce
The pointers are really important since according to the census 2011, 468,593 individuals got married and 3,331 separated.
Maintenance Rights
- Section 125(4) In mutual cases it cannot be easily demanded, however, in major cases, the court can fix a particular amount to be paid to the wife. The aim of the allowance is to pay for basic needs.
- It cannot be claimed before the divorce.
- She has no property right till the lifetime of the husband.
- Under Hindu Law, she has the right to maintenance under the Hindu Adoption Marriage Act of 1956. If she cannot break marriage because of any personal reason there is an allowance for that.
- Husbands cruelty, extra wife, the presumption of death, religion change or has deserted her.
- Under Section 13(2) – Polygamy, repudiation of marriage, maintenance order are important points.
- Under Parsi law, civil and criminal proceedings can take place to make sure that the
Right To Ancestral Property
- If she is a member of a joint family she has an equal share of the property with her mother and children after death.
- Under Parsi Law, Indian Succession Act of 1925, after death, she has ⅓ right to the property.
- For Christians, it can be done under criminal or civil suits.
Maintenance And Allowances Under The Muslim Law
- After the Shabana Bano case, the woman can get allowances if she is not able to live her own sustainable life.
- If relatives are not able to pay the state wakf are ordered by the court to pay the amount.
Child Custody
The Rights of the child matters a lot and all these cases are sorted under the family courts. In 90 cases the custody is granted to the mother only but there are reasons and cases under which they fall.
- Physical Custody – The custody is with the single parent and the other can interact and meet and stay in touch with the child.
- Joint Custody- This depends upon the time period the child lives with one parent than the other.
- Third-Party Custody- Guardian takes the custody and not the biological parents
- Sole custody- Only one parent has the complete responsibility of the kid.
- Custody under Hindu Law – The Hindu Marriage Act 1955 (section 26), the Special Marriage Act 1954 (section 38), and the Hindu Minority and Guardianship Act 1956.
- Custody under Muslim Law – which allows only the mother to seek custody of her child(ren) under the Right of Hizanat.
- Custody under Christian Law – which allows for child custody under the Divorce Act 1869 (section 41) only after separation decree is granted.
- Custody under Parsi Law – which allows for child custody under the Guardian and Wards Act 1890 here welfare of the child is a pivot.
The Contested Procedure To File For A Divorce In India
- Identity proof
- Profession details
- ITR
- Resources and owned properties.
- A petition is filed at the commonplace for both, current places of either of the spouses.
- Service of summons- the proceedings have already been taken into force.
- Response- After this, the response is expected by the other party and they have to be present for further court proceedings.
- Trial- Both the leadings are heard by the witnesses
- Interim order- This is with respect to child custody.
- Argument and the Final Order
If you want to read about contentions To Remember Before Taking A Contested Divorce In India, you can check out our latest article about Contested Divorce In India.
Conclusion
The Procedure To Divorce In India may or may not be tedious but all the sections, laws, judiciary processes are smooth to make sure that the case is resolved. Court and Divorce lawyers in Gurgaon take extra precautions to deliver justice. The cases which reached the supreme court even brought some amendments. In the end, it is about having knowledge of your rights with religious rights as well. For inter-caste marriage or any other court marriage, there are different laws governing it
