Divorce, Separation and Matrimonial Laws

what is divorce and separation? Technically speaking when a couple decide to part ways and severe the matrimonial ties forever then it means that they are heading towards divorce and post-divorce they will not be legally spouses (husband and wife) to each other. Since the family disintegration involves lot of stakeholders like, spouses, children, parents, relatives etc. so the legal system of any country took efforts to intervene in this quite a private matter of marriage and separation and have legislated laws around this. The laws are made with the intention to ensure that whosoever goes ahead with separation gets proper justice and no one takes undue advantage of this system.  our Indian Judicial System has a robust and well proven laws, mechanism and processes for divorce.

So, what is the Legal understanding of Divorce?

Divorce is the total disintegration of a marriage before the demise of either of the spouse. Once a coupe has been divorced under the law as per the laid down procedure it means that the man and the woman are no longer related to each other as husband and wife. It includes the cancelation of any legal obligations towards each other and from any past marital obligations or bonds between the said wedlock. After divorce, one’s singlehood is legitimized and he or she is allowed to remarry. Simply put it is the end of the relationship between the man and the woman who were together due to the wedlock.

Legally, speaking a marriage can be said broken when two parties, husband and wife, decide not to stay together as spouses. The system allows them to either completely dissolve the marriage or put it into a suspended animation.

This gave rise to two legal concepts in dissolution of marriage – Judicial Separation and Divorce.

Judicial Separation: When the spouses decide to separate their ways and stay away from each other and do not co habit but still are husband and wife. The marriage tie is still alive and they cannot remarry some else. Separation is done under Section 23 of Special Marriage Act and Section 10 of Hindu Marriage Act.

Divorce: When the spouses decide to end the tie for ever and finish the marriage after that they are free to remarry. Contested Divorce case is filed under Section 27 of Special Marriage Act and under Section 13 of Hindu Marriage Act.

Common reasons for divorce

One of the common grounds these days which give rise to divorce case are Sec 498A of IPC. So many domestic violence cases are being filed by the wives that the husbands are forces to file divorce case as a result.

Other common grounds of divorce cases are

  • harassment,
  • physical abuse,
  • mental torture,
  • cruelty,
  • impotency,
  • adultery
  • remarriage

Procedure to File Divorce Case

First of all, look for a good divorce lawyer and get a good petition drafted. File the petition the District Court or the Family Court and follow the procedure as per the court. Once the petition is filed by the Applicant the notice will be sent to the Respondent with a copy of the petition. On the fixed date the Respondent will appear the trial will begin. Both parties will submit the evidences and witnesses followed by examination and cross examination. Finally, there will be argument and lastly the judgement will be passed.

In case of Mutual Consent Divorce – MCD, File the joint petition together and appear jointly Infront of the judge and follow the motion. On first motion the Parties will appear with present the petition and the court will send them for reconciliation. A cooling off period of six month will be granted. After the six-month second motion will the decree for divorce will be passed.

Child Custody in Divorce

Child custody is a tricky issue in case of divorce and court takes it very seriously. Lot of factors are taken into consideration before deciding who should be getting the custody of the child. The welfare and development of child is the prime factor while deciding whom the custody should be handed over. Generally, till 5 years of age mothers are the natural guardian they get the custody without any question unless there is any deviation like unsound mind or incapacity to handle the child.

Fathers too can ask for child custody rights after the child grown beyond 5 years of age, if not sole custody, then at least he can ask for joint custody or the visitation rights. In some cases where the mothers are not capable of bringing up the child or is found to be of questionable character in those cases fathers, very easily, can convince the court and get the custody of their children.

What are the laws which Govern the Divorce matters?

These are the following laws which govern the divorce matters in India.

  • The Hindu Marriage Act 1955
  • The Parsi Marriage and Divorce Act 1936
  • The Dissolution of Muslim Marriage Act 1939
  • The Special Marriage Act 1956
  • The Foreign Marriage Act 1969
  • The Divorce Act 1869
Which law govern marriage and divorce among Muslims?

Muslims are ruled by their own laws under which Nikah (marriage) is a contract. It can be temporary or permanent with the provision for a man having up to 4 wives on the condition that he treats all of them equally. Divorce or Talaq for Muslims can happen without involving the Court. However, if required, the spouses can move the court in the case of a dispute during a divorce.

Talaq can happen in either of the following ways:

  • When the husband chooses to end it.
  • When the wife chooses to end it.
  • When both husband and wife end it together.

In most cases, it is the man who has more options than the woman to say that he no longer wishes to be part of the marriage without approaching the court.