What are the Rules for Getting a Divorce in India?

Last Updated at: Oct 09, 2020

There are different laws for divorce for different religions. Hindus (which include Sikh, Jain, and Budh) are governed by the Hindu Marriage Act, 1955. Christians are governed by the Indian Divorce Act, 1869, and The Indian Christian Marriage Act, 1872. Muslims are governed by the Personnel laws of Divorce and also the Dissolution of Marriage Act, 1939, and The Muslim Women (Protection of Rights on Divorce) Act, 1986. Similarly, Parsis are governed by The Parsi Marriage and Divorce Act, 1936. There is also a secular law called the Special Marriage Act, 1954.

Mutual consent divorce

It is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband and wife. There are two aspects on which Husband and Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses. Duration of Divorce in Mutual Consent varies from one month to six months or more from States to States and as per the High Court directions.

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Contested Divorce

As the name suggests, you will have to contest it. Indian laws in general recognises cruelty (physical and mental), desertion (period varies from 2 to 3 years), unsoundness of mind (of incurable form), impotency, renouncing the world, among others. Aggrieved party has to take one of the above grounds of divorce and will have to file the case in the Court of appropriate jurisdiction. Party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly.

Annulment of marriage

Marriage in India can also be dissolved by means of annulment. Procedure for annulment is same as that of Divorce except that the grounds for annulment are different than that of divorce. Grounds for annulment are fraud, pregnancy of wife by person other than the husband, impotency prior to the marriage and subsist even at the time of filing the case. Once annulment is granted by an Indian court, the status of the parties remains as it was prior to the marriage.

Void marriage

A marriage is automatically void and is automatically annulled when it is prohibited by law. Section 11 of Hindu Marriage Act, 1955 deals with: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 of the Act. Bigamy: If either spouse was still legally married to another person at the time of the marriage then the marriage is void and no formal annulment is necessary.

Interfamily marriage: A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption. Marriage between close relatives: A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

Voidable marriage

Avoidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud. The duration for obtaining divorce varies from case to case and place to place. Generally speaking, contested divorce proceedings take 18 to 24 months. Mutual consent divorce varies from 4 weeks to 7 months and more.