Read on to learn about the new rules for divorce in India in 2022-2023.
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.
Table of Contents
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 Rules for Divorce 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.
Conclusion
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.
Helpful Links
- Mutual Divorce Cost in India
- What is the Procedure for Divorce?
- What is Non Amicable Divorce?
- Divorce Filing if Marriage Is Not Registered
- Applying for Divorce in India
