Legal provisions for divorce in India

The word divorce is not considered to be a happy sounding word, particularly in Indian social set-up, but in the contemporary times it has become a common word in the corridors of family courts. There was a time when marriage was a commitment for lifetime and nothing could shake this bond come what may. With the changes rapidly coming to the life style and even thinking, the word divorce has gained an acceptance in Indian society.

In simple words, divorce stands for permanent legal separation between a man and a woman based on mutual consent or through a legal process. As per the law of the land, the term divorce is accepted as a part of human behaviour and related to the legal rights of a human being who is not feeling comfortable in the company of the person whom he or she has got married.

As per the law, the legal proceedings in India for divorce are not as easy and effective as they are in western countries. Divorce on mutual consent is considered to be one of the fastest ways to resolve the issue. Earlier it could take well over a year because of the mandatory six-month cooling-off period between the first and second motions under Section 13B(2) of the Hindu Marriage Act. However, after the Supreme Court’s ruling in Amardeep Singh v. Harveen Kaur (2017), this six-month period is no longer mandatory and can be waived by the court where the parties have genuinely settled their differences, so a mutual-consent divorce can now be completed in well under a year. Those who are willing to seek divorce in India should prepare themselves to go through an unexpected trauma.

India is world’s largest democracy and the people belonging to different religions coexist here peacefully. The constitution of India has conferred so many rights upon them keeping in view their religious beliefs and traditions. In the light of the above facts, India has separate personal laws that apply to persons according to their religion. These are standalone statutes enacted by Parliament — they are not part of any criminal code. The legal procedure for divorce in India is based on the following Acts:

• The Special Marriage Act, 1954
• The Foreign Marriage Act, 1969
• The Hindu Marriage Act, 1955
• The Parsi Marriage and Divorce Act, 1936
• The Dissolution of Muslim Marriages Act, 1939

The people who are willing to take divorce from their spouses have two options while approaching to family court. The first is that of an uncontested that is called divorce on mutual consent. In this type of procedure both the parties have to be in complete agreement regarding the issues related to any kind of give and take, property distribution, child custody and alimony. Where the court waives the statutory cooling-off period in line with Amardeep Singh v. Harveen Kaur (2017), this procedure can be concluded in a few months rather than taking a full year after the petition is filed in the court of family law.

The second option is that of a contested nature in which both the parties are not agreed to settle the issue in an amicable environment. In these circumstances the entire matter is entrusted under the discretion of the presiding judge of the family court. The Judge hears both the parties and takes decision on the basis of statements given by them in the Court of Law. The contested option of divorce may not be confined to any fixed timeframe. It may take so many years to be settled.