Laws on Marriage, Divorce and Custody

Divorce is the legal dissolution of marriage. Since India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce. All Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955. The Muslim, Christian and Parsi communities, on the other hand, have their own laws governing marriage and divorce. Spouses belonging to different communities and castes can seek divorce under the Special Marriage Act, 1956. There is also the Foreign Marriage Act 1969, governing divorce laws in marriages where either partner belongs to another nationality.

A contested divorce is filed on the grounds that are mentioned in the acts passed out separately for different Indian religions.

Some of the grounds on which either spouse can file for a divorce in India are:

Adultery on the part of the spouse of the petitioner, or any other sexual relationship outside marriage. Wilful desertion or abandonment of the petitioner by the spouse, for a continuous period of two years in India, before the date of the filing for divorce. Infliction of physical and/or mental torture on the petitioner by the spouse, which may result in danger to life and health of the former. Sexual impotency or inability to perform sexual intercourse by the spouse of the petitioner. Insanity or suffering from incurable disease by the spouse of the petitioner.

Divorce by Mutual Consent

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.
For a mutual divorce procedure in India, you can come to an agreement with your spouse where you may resolve all kinds of disputes regarding maintenance, custody of children and such.

Under Section 13B of the Hindu Marriage Act, a husband and wife can file a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about their inability to continue the marital relationship due to some unavoidable circumstances. Both the sides must voluntarily agree to dissolve the marriage.

The filing of a mutual divorce by both the husband and the wife is termed as ‘the first motion’. A couple can file for a second motion after a gap of six months. The six months time span is provided to the couple so that they get the time to reconsider their marriage. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.

Divorce Alimony, maintenance

In India, family courts can pass an interim order on maintenance to a spouse when s/he is separated from the other spouse with minor marital conflict, with a decree of judicial separation or if one of the spouses has applied for divorce. So, a lawsuit for divorce or judicial separation is not mandatory to apply for monthly maintenance. A woman or man stops getting maintenance from his/her spouse once she/he gets remarried unless they have a child. So, often women ask for a one time out of court settlement (or alimony).

Interim maintenance order remains valid till the permanent maintenance order is given by the court during the divorce.

Alimony is the financial support that a spouse is required to provide an estranged partner during and after a divorce.

The terms and conditions of alimony, also vary from one personal law to another. Thus, whether and how much alimony the seeker will be granted, will depend upon the laws according to which he/she got married. In exceptional conditions, the court can direct that the seeker be paid maintenance after divorce, by a public body.

Child custody.

Another aspect of divorce which leads to a great deal of emotional trauma and legal complication, is child custody. This is because divorce entails the breakdown of the entire family. The child is not only separated from one of the parents, but may also lose other siblings and the wider extended family. The Hindu Marriage Act 1955, has exhaustive laws related to child custody and child support. If the child is below five years, the custody is unanimously awarded to the mother. In case of older children, the custody of a girl child is generally given to the mother, and that of the boy child to the father. Visitation right is an important aspect of child custody, which specifies how frequently of the estranged parent can meet his/her children. Child support is intricately linked to child custody.

NRI Divorce

While the procedure of getting a divorce in India is protracted enough, the situation gets further complicated if the marriage involves one or both non-resident Indians. The Indian legal system does not have very exhaustive divorce laws for marriages with or among non-resident Indians. However if a couple has got married in India under the Hindu Marriage Act 1955, the partners can file for divorce by mutual consent, like other Indians residing in the country. If both the spouses are residing in a foreign country, Indian law will recognize their divorce according to the laws of that country.

Laws on Marriage, Divorce and Custody Applicable to Persons Belonging to Different Religious Communities
Civil marriages Special Marriages Act, 1954 (SMA)
Hindu, Buddhist, Jain, Sikh  Hindu Marriages Act, 1955 (HMA)

 Hindu Adoption and Maintenance Act, 1956 (HAMA)

 Hindu Succession Act, 1956 (HSA)

 Hindu Minority and Guardianship Act, 1956 (HMGA)

Muslim  Sharia law

 Dissolution of Muslim Marriages Act, 1939, (DMMA)

 Muslim Women (Protection of Rights on Divorce) Act, 1986

(MWA)

Parsi Parsi Marriage and Divorce Act, 1936 (PMDA)
Christian  Christian Marriage Act, 1872 (CMA)

 Indian Divorce Act, 1869 (IDA)

Provisions on Claiming Maintenance Along with a Suit for Judicial Separation or Divorce
Religious Denomination Relevant Provisions
Civil, Religious ceremony Section 37, SMA
Hindu Section 25, HMA
Muslim Sections 3 and 4, MWA
Parsi Section 40, PMDA
Christian Section 37, IDA