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Knowledge of divorce Laws, processes and procedures has always been a significant requirement for a couple undertaking or planning for a separation.
We at familylawyers24.com over the years have attempted to streamline a crafted genre of such knowledge, guidance and information, to suit the requirements of spouses who depending upon their circumstances and situations in a relationship, intend to settle their matrimonial and allied issues.
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Divorces
Divorce on a most common understanding is a legal process of separation between spouses. In India, divorces are broadly classified into mutual divorce and contested divorce. A mutual divorce is when both spouses come together to settle their disputes and differences mutually, which in furtherance is then recognized by the concerned Family Court as per law.
A contested divorce is when either of the spouse in a marriage intends to separate and opt out of the subsisting marriage, and the other spouse is not willing to go for a separation. This is when the latter spouse, intending for separation, files a divorce case before a concerned Family Court against the spouse resisting the separation.
Laws Governing Divorces in India
In India, the presence of various personal laws recognizes the respective marriages been undertaken
Hindu
For a Hindu Marriage, the governing law for divorce is the Hindu Marriage Act, 1955.
Muslim
For A Muslim Marriage, the governing law for divorce is the Dissolution of Muslim Marriages Act, 1939.
Christian
For a Christian marriage, the governing law for divorce is the Divorce Act, 1869.
Parsi
For a Parsi Marriage, the governing law for divorce is the Parsi Marriage and Divorce Act, 1936.
Special Marriages
For marriages taking place under the Special Marriage, which is known as a secular law on marriages and divorce where also persons of different religions can come together and get their marriages solemnised (commonly known as Court Marriages) the governing laws for divorce is the Special Marriage Act, 1954
Courts
The cases for divorces in India are enforced and contested in the applicable jurisdiction of Family Courts and the District Courts, as so governed by the respective applicable law of divorce.
Judicial Separation
A branch of separation is governed and applicable over the Hindu wedding, the provision for which is provided in Section 10 of the Hindu Marriage Act, 1955. In judicial separation the court orders for for judicial separation, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Maintenance
Maintenance is a financial amount, claimed by a wife who has a reason to live separately and is also unable to maintain oneself can claim for a maintenance, the laws governing maintenance are provided under Section 125 Criminal Procedure Code, 1973. The claim for maintenance can be filed before the respective Family Court. The procedure for the same is also provided under Section 126 of the Criminal Procedure Code read along with the rules provided in the respective Family Court Rules.
High Net Worth Services
The spouses who intend to terminate the marriage or are interested to discover the entire scenario of separation, involving the division of assets including joint accounts, joint finances, joint-properties for a valuation exceeding 1 Crore.
Alimony
Alimony, also known as spousal support or maintenance, is a legal obligation to provide financial support to a spouse after separation or divorce. It is intended to help the lower-earning spouse maintain a similar standard of living to that experienced during the marriage.
International Matters
International matters primarily involve matrimonial disputes between spouses of different nationalities, and one of the spouses had or has an Indian Nationality. The primary issues involved with international matters are divorces taking place or undergoing in countries outside India, issuance of LOC(Look Out Circular), issuance of a warrant from Indian courts when a spouse is residing abroad in some other country, spouse sending communications to the Indian High Commission and employer for action at a foreign country.
Domestic Violence
Domestic violence is a case filed by a woman against any person she is in or was in a domestic relationship as defined in law, the law governing matters of domestic violence are governed by the Protection of Women from Domestic Violence Act, 2005, the complaint under the domestic violence is filed before the concerned district court, under the provisions of the Act of 2005.
498-A of the Indian Penal Code, 1860
Section 498-A of the IPC, 1860 is infamously called a dowry case, which is a complaint filed by the wife against the husband and his relatives before a police station having jurisdiction, the appointed Investigation Officer may then convert a complaint into a First Information Report (FIR) under Section 498-A which provides for a maximum punishment of 3 years. The complaint under Section 498-A is commonly also tagged along with Section 3 and 4 of the Dowry Prohibition Act, 1961.
Counselling
For couples or family members looking for a need in counselling, counselling is an attempt made by a counsellor or a person so wishes to be appointed as a counsellor to provide counselling to the couple undergoing a strained marriage relationship. Section 9 of the Family Courts Act, 1984 authorises and also provides for a provision where the Family Court must make efforts for settlement consistent with the nature and circumstances of the case, and also to assist and persuade the parties to arrive at a settlement in respect of their subsisting disputes.
Rajnesh v. Neha. The Landmark Supreme Court Judgement
In the landmark case of Rajnesh v. Neha (2020), the Supreme Court of India established comprehensive guidelines for determining maintenance in matrimonial disputes. This judgment addresses the inconsistencies in awarding maintenance and aims to streamline the process, ensuring fairness and transparency.
By providing a Uniform Affidavit of Disclosure of Assets and Liabilities, Criteria for Determining Maintenance primarily assessing the income and assets of both parties, Financial needs and liabilities, The standard of living during the marriage, The duration of the marriage, The age and health of both parties, Any specific needs of the dependent spouse and children. The judgement also determined criteria for Interim Maintenance, Enforcement of Maintenance Orders, and Multiple Maintenance Proceedings:
FAQ on a Lighter Note
There cannot always be a fix amount for maintenance. It dwells upon various factors such as liabilities, income, dependants and status for a particular individual.
Yes you can file a quashment case against the FIR lodged under Section 498-A IPC in the High Court.
Note– Section 498-A IPC (Indian Penal Code) has been reproduced in Section 85 and 86 of Bhartiya Naya Sahita, 2024.
It takes around 6 months.
Yes, you may have to travel to India to file the divorce case if the case is to be filed in the Family Court.
Yes, you can send the legal notice if the situation so demands.
You can plan to initiate the restitution of conjugal rights remedy
Mutual divorce is when both spouses come together in agreement to take divorce on agreed terms and conditions.
Constant divorce is when both spouses are not in agreement to take divorce, or not in agreement over the terms and conditions of divorce. Either of the spouses files for a divorce against the other spouse contesting for seeking divorce.
Pursuant to the Arnesh Kumar guidelines the police should not arrest anyone accused of an offence, where punishment prescribed is below 7 Years. However, it is advised to seek legal guidance before taking any decision/conclusion.
Note: Section 498-A IPC (Indian Penal Code) has been reproduced in Section 85 and 86 of Bhartiya Naya Sahita, 2024.