Before commencing this blog series, I would like to share the reasons that motivated me to select this particular topic.
A) That was a Friday evening, and I was sitting in my chamber thinking about one of my long-pending cases, a young man of age about 34-35 came in without an appointment and asked, “Sir, I want a divorce, how much fees do you take?” I need it before the end of this month because my girlfriend’s father is seeking a bride for her.”
B) I received a phone call one day and was asked, “Sir, are you a divorce lawyer?” When can we meet?
I scheduled him for 7 p.m. the next day.
The next day, at 6 p.m., I received a phone call from the same number, with a woman’s voice saying, “Sir, my husband was a little disturbed yesterday morning, so he took an appointment with you, we don’t need a divorce, please ignore.”
C) Despite having a divorce case pending, many of my clients ask me, sir, “Shall I marry?” “I’m getting older.”
D) Many clients say “Sir I am ready to go till the supreme court but I don’t give a single rupee to her as maintenance or compensation”.
I have many more stories like this.
Even though data and knowledge flow at the speed of light in this age of the internet, there is so much information that society is still unaware of.
Seeing all of this, I decided to publish a series of blogs on the subject.
Okay, let’s get to the main point – This is simply an introductory blog; I just want to provide some facts here, but as I said you can expect a series of posts on this topic if you follow me.
1. What is Divorce?
– “Divorce refers to the legal termination of a marriage, resulting in the dissolution of the marital relationship between spouses. It is a legal process through which a married couple can officially end their marriage and go their separate ways.”
2. When should a person go for Divorce?
A) Irretrievable breakdown: When the marriage has reached a point where there is no possibility of reconciliation or resolution of significant issues.
B) Lack of communication: If communication between spouses has broken down completely or there is a constant pattern of misunderstandings and an inability to effectively communicate.
C) Abuse or domestic violence: If you or your children are experiencing physical, emotional, or sexual abuse, it is important to prioritize safety and well-being.
D) Infidelity: When trust has been severely damaged due to repeated instances of infidelity and the betrayed spouse is unable to forgive or rebuild the relationship.
E) Unresolved conflicts and incompatibility: If attempts to resolve conflicts or reconcile differences have consistently failed, and both spouses are unhappy and incompatible with each other’s values, goals, or lifestyles.
F) Financial issues: When financial disagreements or struggles become a significant source of stress and are causing long-term instability or inability to meet basic needs.
G) Loss of love and emotional connection: If the love, affection, and emotional bond between spouses have diminished or disappeared entirely, and efforts to reignite those feelings have been unsuccessful.
It is essential to carefully evaluate your circumstances, seeks professional counselling or therapy, and consider the potential impact on yourself, your children, and your overall well-being before making a final decision. Consulting with a family lawyer can also provide valuable guidance regarding the legal aspects of divorce and the potential consequences.
3. What are the laws governing Marriage, Divorce, and Parenthood?
In India, marriage, divorce, and parenthood are governed by various laws. Here are the key laws that pertain to these areas:
Marriage Laws:
Hindu Marriage Act, 1955: It applies to Hindus, Buddhists, Jains, and Sikhs and governs marriage, divorce, and related issues for these communities.
Special Marriage Act, 1954: It covers inter-religious and inter-caste marriages and provides a legal framework for their solemnization and registration.
Indian Christian Marriage Act, 1872: It regulates Christian marriages in India.
Divorce Laws:
Hindu Marriage Act, 1955: It provides provisions for both mutual consent divorce and contested divorce for Hindus, Buddhists, Jains, and Sikhs.
Muslim Personal Law: Muslims in India follow their laws, which include provisions for divorce such as Talaq (divorce by husband), Khula (divorce by wife), or by mutual consent.
Indian Divorce Act, 1869: It governs divorce among Christians in India.
Parsi Marriage and Divorce Act, 1936: It governs divorce among Parsis in India.
Special Marriage Act, 1954: It also provides provisions for divorce for couples married under its provisions.
Parenthood Laws:
Guardians and Wards Act, 1890: It deals with matters related to custody, guardianship, and upbringing of children.
Hindu Minority and Guardianship Act, 1956: It governs matters related to custody, guardianship, and adoption for Hindus.
Muslim Personal Law: Muslim personal laws also address matters of parenthood, custody, and guardianship.
Juvenile Justice (Care and Protection of Children) Act, 2015: It focuses on the welfare and protection of children in need of care and protection, including provisions for adoption.
These are some of the key laws in India that govern marriage, divorce, and parenthood. It’s important to consult with a legal professional or family lawyer for specific guidance and understanding of the laws applicable to your situation.
Types of Divorce –
Different sorts of divorce are recognised in India under distinct personal laws, depending on an individual’s religion and society. The following are the most common types of divorce in India:
A.Mutual Consent Divorce:
Mutual consent divorce is permitted by several personal laws, including the Hindu Marriage Act, the Special Marriage Act, and the Parsi Marriage and Divorce Act. It occurs when both couples mutually agree to end their marriage and submit a joint divorce petition. They must show the court that they have been living apart for a stipulated period (typically a year or more) and have mutually consented to break their marriage. Mutual consent divorce makes divorce proceedings more friendly and cooperative.
B.Contested Divorce:
In this type of divorce, one of the spouses initiates divorce proceedings without the consent or agreement of the other spouse and The petitioner must establish valid grounds for divorce as recognized under their respective personal laws. These grounds may include cruelty, adultery, desertion, conversion to another religion, mental illness, or incurable diseases, depending on the applicable personal law. In contested divorces, the court carefully considers the evidence and arguments presented by both parties before deciding on granting the divorce.
C. Divorce by Judicial Decree:
This type of divorce is granted by a court when one spouse fails to respond or appear in court despite being served with a divorce petition. If the court is satisfied that due process has been followed, it may grant a divorce in favour of the petitioner through a judicial decree.
It is crucial to remember that the types of divorce available may differ depending on a person’s religion and the personal laws that apply in their community. Muslims in India, for example, have laws under which divorce can be granted through ways such as Talaq (divorce by husband), Khula (divorce by a woman), or mutual consent. Under their separate personal laws, Christians, Parsis, and other religious communities have their special divorce provisions.
