Read on to learn about the new rules for divorce in India in 2022-2023.
Overview:
New Divorce Rules in India – Divorce is the legal end of the marriage. The thoughts and beliefs toward the marriage system keep changing with time. The divorce laws in India are also modified as per the need of the time. It is, therefore, necessary to understand the new rules for divorce in India in 2022-2023. In the earlier days in India, there used to be very few cases of divorce. But with time, it has been observed that the mindset of people has changed.
Now, the partners do not hesitate to move toward divorce if they feel that they cannot continue with the marriage. The courts make rules to settle divorce cases and to provide justice to both parties. This article will guide you in understanding the changes in rules for divorce.
Divorce Overview
| Topic | Information |
|---|---|
| Grounds | Divorce can be granted on several grounds, including adultery, cruelty, desertion, conversion, mental disorder, venereal disease, and irretrievable breakdown of marriage. |
| Jurisdiction | The district court where the couple last resided together has jurisdiction over divorce cases. |
| Residency requirements | At least one spouse must have resided in India for a minimum of six months before filing for divorce. |
| Waiting period | There is a mandatory waiting period of six months after filing for divorce, during which the court may attempt to reconcile the couple. |
| Separation agreement | The couple may try to reach a separation agreement, which will then be reviewed and approved by the court. |
| Mediation | The court may suggest mediation as a way to resolve disputes and reach a settlement. |
| Contested vs. uncontested divorce | Divorce can be either contested or uncontested. In a contested divorce, the court will hold a trial and make a decision on the terms of the divorce. In an uncontested divorce, the couple agrees on all terms, and the court simply approves the agreement. |
| Alimony | The court may order one spouse to pay alimony to the other, depending on various factors such as the duration of the marriage, the earning capacity of each spouse, and the standard of living during the marriage. |
| Child custody and support | The court will make decisions regarding child custody and support based on the best interests of the child. Both parents have a legal obligation to provide financial support for their children. |
| Appeal | Either spouse can appeal the decision of the district court to a higher court if they are not satisfied with the ruling. |
Following are the New Divorce Rules in India 2023
| Grounds for Divorce | Previous Law | New Law |
|---|---|---|
| Adultery | Only the spouse who was cheated on could file for divorce | Both spouses can file for divorce |
| Mental/Physical Cruelty | Includes physical violence, harassment, and mental torture, but did not have a clear definition | Includes physical violence, harassment, and mental torture, but now also includes withholding financial support or denying access to a child |
| Desertion | Must have been for a continuous period of 2 years | Reduced to a continuous period of 1 year |
| Conversion | Not recognized as grounds for divorce | Recognized as grounds for divorce |
| Irretrievable Breakdown | Not recognized as grounds for divorce | Recognized as grounds for divorce, but requires a one-year separation period |
It’s worth noting that these changes are part of the 2023 amendment to the Hindu Marriage Act, which only applies to Hindus. Other religious groups have their own marriage laws and may have different grounds for divorce.
1. Waiving the Mandatory 6 Months Period for Rehabilitation
According to section 13B (2), when the couples move to the court for divorce with mutual consent, the court grants them a mandatory six months period to consider any chances of change in their decision.
This period is granted by the court with the intent to save the marriage. After the end of six months, the couple may decide to reunite or proceed with a divorce.
The rehabilitation period of six months was mandatory. But as per the new rule, it is no more mandatory and is left at the discretion of the court.
The court may decide as per the facts and circumstances of the specific case whether there is a need to order six months rehabilitation period or whether the couple should be immediately allowed to divorce.
This was observed in the Supreme court ruling in the Akanksha vs Anupam Mathur case. The court was satisfied that the couple had taken a conscious decision to divorce, and there was no point in requiring the parties to wait for another six months for divorce.
The court decided to waive the six-month period and ordered the dissolution of the marriage.
2. Irretrievable Breakdown of Marriage, a Valid Ground for Divorce
When the couple decides that they cannot continue living as married partners, this situation is called separation or breakdown of the marriage. The partners may or may not live under the same roof, but they do not live as husband and wife.
There are no separate rules for this issue in the divorce law.
It is a matter of the court’s discretion whether the separation can form the ground for divorce.
If the court is of the view that there is no possibility that the couple can reunite, or if both or any of the spouses are unwilling to live with each other, it can allow them to proceed with the divorce.
In Sangamitra Ghose Vs. Kajal Kumar Ghosh case, the Supreme Court observed that the marriage between the parties was irretrievably broken down and that there was no possibility to repair the bond of the marriage. The apex court, therefore, ordered that the couple can divorce on the ground of the irretrievable breakdown of the marriage.
3. Law of Maintenance Extended for Live-in Relationships
As per the Hindu Marriage Act,1955, the court may order the payment of maintenance. This is to help the women to maintain the same standard of living after divorce. If the marriage is not in Hindu law, the woman is eligible to claim maintenance under Section 125 of the Criminal Procedure Code.
The live-in relationship status is treated as a marriage in the eyes of the law. Therefore, a woman who was in a live-in can also claim maintenance from the live-in partner under the Code of Criminal Procedure. Also, if the partners have been in a live-in relationship for a long time, then there is no need to provide strict proof of marriage.
As per the new divorce rules in India 2022, the victim, i.e. the wife or the live-in partner, can claim relief under the Protection of Women from Domestic Violence Act, 2005, even if she is not eligible for a claim as per the Criminal Procedure Code. The victim woman can claim even higher relief under the Protection of Women from Domestic Violence Act than what is contemplated under the Code of Criminal Procedure.
4. Adultery Is Not Punishable
As per the new rules, adultery can be considered a ground for divorce in India, but it is not punishable. The court observed that punishing the spouse and his or her lover with whom he or she indulged in adultery cannot be a remedy to save the marriage.
The partners can claim divorce based on the ground of adultery, but there is no punishment for adultery.
5. Triple Talaq Cannot Be a Grounds for Divorce
As per Muslim law, merely saying ‘Talaq’ three times can be the basis of divorce in India. This practice is unfair to Muslim women, as it gives Muslim men the right to unilaterally dissolve the marriage. The arbitrary practice of triple talaq is against the rights of women. The ‘Triple Talaq‘ has now been declared unconstitutional and has no significance in the eyes of the law as per the new divorce rules 2023 in India.
6. Divorce Under Personal Law Cannot Override the Power of the Civil Court
The divorce can be ordered only by the Civil Court: https://districts.ecourts.gov.in/. If the Christian Church or any other personal law grants the divorce, such divorce shall be invalid. The Apex Court in Molly Joseph vs George Sebastian case held that the competent court could only do dissolution of marriage. The order or decree of the Civil Court shall prevail and override any order passed by personal law or Ecclesiastical Tribunal.
New Divorce Rules in India: Marriage Laws (Amendment) 2013
THE MARRIAGE LAWS (AMENDMENT) BILL, 2013
Be it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:
CHAPTER I – PRELIMINARY
- (1) This Act may be called the Marriage Laws (Amendment) Act, 2013. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
CHAPTER II – AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955
- In the Hindu Marriage Act, 1955 (hereafter in this Chapter referred to as the Hindu Marriage Act), in section 13B, in sub-section (2), the following provisos shall be inserted, namely:— “Provided that on an application being made by both the parties, the court may reduce the period specified under this sub-section to a lesser period and the court may waive off the requirement for moving the motion by both the parties, if it is satisfied that the parties to the marriage are not in a position to reconcile their differences: Provided further that where one of the parties fails to appear before the court within a period of three years from the date of presentation of the petition under sub-section (1), the court may, on an application made by the other party, waive the requirement of moving the motion by both the parties.”
- After section 13B of the Hindu Marriage Act, the following sections shall be inserted, namely:— “13C (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2013], on the ground that the marriage has broken down irretrievably. (2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition. (3) If the court is satisfied, on the evidence as to the fact mentioned in sub-section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce. (4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart. (5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.
13D. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances, be wrong to dissolve the marriage. (2) Where the grant of a decree is opposed by virtue of this section, then,— (a) if the court finds that the petitioner is entitled to rely on the ground set out in section 13C; and (b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would, in all the circumstances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.
13E. The court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage. Explanation.— In this section, the expression “children” means— (a) minor children including adopted children; (b) unmarried or widowed daughters who have not the financial resources to support themselves; and (c) children who, because of the special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.
13F (1) Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 13C on a petition made by the wife, order that the husband shall give for her and children as defined in section 13E, such compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such an amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband. (2) Any order of settlement made by the court under sub-section (1) shall be secured, if necessary, by a charge on the immovable property of the husband.
- In section 21A of the Hindu Marriage Act, in sub-section (1), after the word and figures “section 13”, at both the places where they occur, the words, figures, and letter “or section 13C” shall be inserted.
- In section 23 of the Hindu Marriage Act, in sub-section (1), in clause (a), after the word and figure “section 5”, the words, figures, and letter “or in cases where the petition is presented under section 13C” shall be inserted.
CHAPTER III – AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954
- In the Special Marriage Act, 1954 (hereafter in this Chapter referred to as the Special Marriage Act), in section 28, in sub-section (2), the following provisos shall be inserted, namely:— “Provided that on an application being made by both the parties, the court may reduce the period specified under this sub-section to a lesser period and the court may waive off the requirement for moving the motion by both the parties, if it is satisfied that the parties to the marriage are not in a position to reconcile their differences: Provided further that where one of the parties fails to appear before the court within a period of three years from the date of presentation of the petition under sub-section (1), the court may, on an application made by the other party, waive the requirement of moving the motion by both the parties.”
- After section 28 of the Special Marriage Act, the following sections shall be inserted, namely:— “28A (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2013] on the ground that the marriage has broken down irretrievably. (2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition. (3) If the court is satisfied, on the evidence as to the fact mentioned in sub-section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce. (4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart. (5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.
28B (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 28A, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would, in all the circumstances, be wrong to dissolve the marriage. (2) Where the grant of a decree is opposed by virtue of this section, then,— (a) if the court finds that the petitioner is entitled to rely on the ground set out in section 28A; and (b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would, in all the circumstances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.
28C. The court shall not pass a decree of divorce under section 28A unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage. Explanation.— In this section, the expression “children” means— (a) minor children including adopted children; (b) unmarried or widowed daughters who have not the financial resources to support themselves; and (c) children who, because of the special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.
28D (1) Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 28A on a petition made by the wife, order that the husband shall give for her and children as defined in section 28C, such compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such an amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband. (2) Any order of settlement made by the court under sub-section (1) shall be secured, if necessary, by a charge on the immovable property of the husband.
- In section 40A of the Special Marriage Act, in sub-section (1), after the word and figures “section 27”, at both the places where they occur, the words, figures, and letter “or section 28A” shall be inserted.
AS PASSED BY THE RAJYA SABHA ON 26TH AUGUST, 2013
The New Divorce Rules in India amendment bill was passed by the Indian Parliament in 2013, and it brought about some crucial changes to the existing marriage laws in the country.
Here are the Key Provisions of the Marriage Laws (Amendment) Act, 2013:
- Irretrievable breakdown of marriage: The amendment introduced the concept of “irretrievable breakdown of marriage” as a new ground for divorce under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. This means that if a couple can establish that their marriage has broken down irretrievably, they could apply for a divorce.
- Mutual Consent Divorce: The amendment made it mandatory for couples seeking a mutual consent divorce to wait for a period of 6 months from the date of filing the divorce petition before the court would pass the decree of divorce. This waiting period was introduced to allow couples to reconsider their decision and reconcile if possible.
- Equal rights to women: The amendment sought to grant equal rights to women in matters of guardianship and custody of children. It aimed to address gender inequalities and ensure that mothers had equal rights as fathers in guardianship and custody matters.
- Welfare of children: The amendment prioritized the welfare of children during divorce proceedings and considered their best interests while deciding custody matters.
- Monogamy: The amendment clarified and reinforced the principle of monogamy in Hindu marriages. It declared that a Hindu marriage would be null and void if either party had a spouse living at the time of the marriage.
Why Legal Advice on Divorce is Needed?
New Divorce Rules in India 2023: Legal advice on divorce is essential for several reasons, as divorce can be a complex and emotionally challenging process. Here are some reasons why seeking legal advice on divorce is necessary:
- Understanding Your Rights and Obligations: A divorce involves various legal rights and obligations, such as property division, child custody, alimony, and child support. An experienced divorce lawyer can help you understand your rights and what you are entitled to under the law.
- Navigating the Legal Process: The legal process of divorce can be intricate, with specific paperwork, deadlines, and court procedures. A divorce attorney can guide you through the process, ensuring that all necessary legal documents are filed correctly and on time.
- Objective Advice: Emotions can run high during a divorce, making it challenging to make rational decisions. A divorce lawyer provides objective advice and helps you focus on the best long-term outcomes for your situation.
- Negotiating Settlements: In many cases, divorces are settled outside of court through negotiations. An experienced divorce attorney can advocate for your interests during settlement discussions and ensure that your rights are protected.
- Child Custody and Support: If there are children involved, issues related to child custody and support can be emotionally charged. A divorce lawyer can help you understand the factors considered in custody decisions and work towards a fair arrangement in the best interest of the children.
- Asset and Debt Division: Dividing marital assets and debts can be complex. A lawyer can assist in identifying and valuing assets, ensuring an equitable division according to the law.
- Spousal Support (Alimony): In some cases, one spouse may be entitled to spousal support (alimony) after divorce. A lawyer can help determine if alimony is appropriate and negotiate fair support terms.
- Legal Protection: Engaging a divorce attorney ensures that your legal rights are protected throughout the process. They can safeguard your interests and advocate on your behalf if any disputes arise.
- Mediation and Alternative Dispute Resolution: If you and your spouse wish to resolve the divorce amicably, a lawyer can assist with mediation or alternative dispute resolution methods, promoting a less adversarial process.
- Avoiding Costly Mistakes: The decisions made during divorce can have long-term consequences. A divorce lawyer can help you avoid costly mistakes that could affect your financial and emotional well-being in the future.
Conclusion
New Divorce Rules in India 2023 – It is essential to change and modify the existing divorce rules in India and laws according to the changes in society. It is important to consider various aspects of a case from the point of view of men and women. Divorce and marriage are both life-changing events. The discretionary powers of the Courts also play an important role in deciding the cases of divorce. Marriages cannot be abruptly dissolved. The rules and grounds for divorce are therefore required to be amended as per the need of society.
New Rules for Divorce in India FAQs
What is the new Divorce law 2023?
As of 2023, there have been significant amendments to the Indian divorce laws. These amendments aim to streamline the divorce process, provide provisions for mutual divorce, and consider the welfare of children during divorce proceedings.
What is the new Supreme Court law for divorce?
The new divorce laws in India are not specific to the Supreme Court. Divorce cases can be filed in district courts under the amended laws, and if the case is contested, it may eventually reach the higher courts, including the Supreme Court.
What is the mutual divorce process in India 2023?
Mutual divorce in India 2023 follows a simplified process, where both parties agree to end the marriage amicably. The couples need to jointly file a petition for mutual divorce, stating their decision to separate, and if the court is satisfied, the divorce can be granted.
What is the minimum time for divorce in India?
As per the new divorce laws in India, the minimum time for obtaining a divorce can vary depending on the circumstances. For mutual consent divorce, it could take around 6 months or more, while contested divorce proceedings may take longer.
Can we get a divorce in 15 days?
Getting a divorce in 15 days is not feasible under the new divorce laws in India. Even in cases of mutual consent divorce, the minimum required waiting period is around 6 months.
Can mutual divorce be done in 3 months?
While mutual divorce is generally faster compared to contested divorces, it usually takes around 6 months or more to complete the process under the new laws in India.
Can a divorce be done in one day?
No, divorce cannot be finalized in just one day. Regardless of the type of divorce, the process requires adherence to legal procedures, filing of documents, and a minimum waiting period as per the new laws.
How can I get a divorce fast?
To expedite the divorce process, parties can cooperate, reach an amicable settlement, and opt for mutual consent divorce. Having legal representation and following all necessary legal procedures can also help in faster resolution.
Can I marry immediately after mutual divorce?
Yes, once the divorce is legally finalized, you are free to remarry. However, it is advisable to wait for the court to issue the final divorce decree before entering into a new marriage.
How fast is mutual divorce in India?
Under the new laws, mutual divorce can take around 6 months or more, depending on court schedules and the complexity of the case.
What does the wife get in mutual divorce?
In mutual divorce, the terms of settlement are agreed upon by both parties. The wife may be entitled to alimony or maintenance, custody arrangements for children, and a fair share in marital assets as per the agreement.
Can the wife claim maintenance after mutual divorce?
Yes, the wife can claim maintenance or alimony from her husband even after a mutual divorce, depending on the terms of the settlement and her financial needs. Maintenance can be awarded if she is unable to support herself financially.
