How to End a Marriage in India?

Marriages are considered to be pious in India. They are believed to be an eternal bond which lasts not only for this lifetime but also for the lives to come. Couples may want to end their marriage due to incompatibility issues or for that matter any other reason. In India, marriages are governed by personal laws depending upon the religion of the person. There are commonly two methods of ending a marriage in India either through divorce or an annulment decree from the court.

Divorce dissolves a marriage whereas annulment declares a marriage as null and void as if the marriage did not happen at all. The grounds for both of them differ. In case of a divorce, the divorced couple is tagged as a divorcee, whereas in annulment the status of the couple goes back to what it was prior to marriage,i.e. Single.

Annulment of Marriage

Annulment is a legal procedure declaring a marriage null and void.There are different grounds on which a marriage can be annulled. An annulment can be done in cases of void marriages and voidable marriages.

Meaning

A void marriage is no marriage at all, it is considered to invalid from the very beginning. Voidable marriage is the one which can be avoided at the option of the parties to the marriage. Voidable marriages are valid unless its validity is questioned. In case of void marriages, parties can remarry without getting a decree of nullity from the court but they cannot do so in case of a voidable marriage.

The Grounds for Annulment

Following are the grounds for annulment-

1. Inability to consummate the marriage- If either of the spouse is chronically unable to have sexual intercourse or is impotent.

2. Incapable of giving Consent- If either of the spouse was incapable of giving consent at the time of the marriage.

3. Mental Disorder- If either of the spouse was suffering from a mental disorder at the time of marriage owing to which he or she cannot be considered fit for marriage or procreate children.

4. Insanity or epilepsy- If either of the spouses suffered from recurrent attacks of insanity or epilepsy then its serves as a ground for getting annulment.

5. Under the legal marriage age-  In India, the legal age of marriage for males is 21 years and for females is 18 years. If either of the spouse is under this age then annulment can be sought.

Voidable Marriages 

As per Section 12 of the Hindu Marriage Act, marriage is considered voidable if-

1. Consent is obtained by fraud

2. Forced Consent- If consent to marriage is obtained through coercion or physical threat then such forced consent is a valid ground to seek an annulment.

3. Concealment of material facts- If any material fact like the age, past, criminal record has been concealed by the parties then the aggrieved spouse can seek an annulment on this ground.

4. Pregnancy- If at the time of the marriage the respondent is carrying a child of some other person the husband can seek an annulment but this right is forfeited of the marriage is consummated after he came to know of this fact.

In cases of Children Born out of Marriage

If a marriage is void and children is born out of that marriage then according to the Hindu law, these children are legitimate. In cases where the children are born out of the voidable marriage then the children are legitimate and they can inherit the properties of their parents but will have no right in the ancestral property.

Related Post: Guide to Consult a Divorce Lawyer

Divorce

If your marriage is not void or voidable then the other way to end a marriage is through divorce. Divorce can be done either with mutual consent or it can be a contested divorce.

Mutual Consent Divorce

In mutual consent divorce as the word suggests it is with the consent of both the parties, i.e. both the parties agree to divorce each other and end the marriage. Previously, the provision of mutual consent divorce was a little tough whereas with the help of the recent Supreme Court judgement the mutual consent have been made easier and also serves as time saver. Couples who do not wish to live together can just simply go to the court and file for the mutual consent divorce as in this kind of divorce with recent modifications the cooling off period of six months have been waived off.

Contested Divorce

Contested Divorce is when only one of the parties want divorce. The party seeking divorce can file for it on any of the following grounds-

Cruelty

As per the Hindu Divorce Laws in India, if one spouse has a reasonable fear in the mind that the partner’s conduct in all likelihood be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse. It can be both mental or physical.

Adultery

In India adultery is a criminal offence. Adultery means to have sexual intercourse outside of marriage. The wife may, also, file for divorce as another remedy.

Mental Disorder

If either spouse is suffering from mental illness and is incapable of performing the normal duties expected in a marriage then it becomes a valid ground for divorce.

Desertion

A spouse leaving/ abandoning the other without reasonable cause is a valid ground for divorce. For instance, as per Hindu laws, the desertion must last for at least 2 continuous years.However, the spouse who abandons the other should do so to desert and there should be evidence of it.

Communicable Disease

Under the Hindu Divorce Laws, if a spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy then it is a valid ground for divorce.

Presumption of Death

If either of the spouses has not been heard of by the other spouse as being alive for a period of at least seven years, then the spouse who is alive can obtain a divorce.

Conversion

If a spouse converts to another religion then the partner can seek divorce. This reason does not require any time limit to have passed before divorce can be filed.

Renunciation of the World

If either of the spouses surrenders his/her married life and chooses to be a sanyasi, the aggrieved spouse may obtain a divorce on this ground.

New Rules in Divorce Laws

The basic aim of any divorce law in the country is to explore the possibility of settlement and cohabitation between husband and wife. However, if the couple under no circumstances wants to re-work the marriage, divorce is granted and the marriage is ultimately dissolved. Keeping this in mind, laws relating to divorce are updated and amended frequently to ease the process of divorce. Here are the new laws on divorce in India-

 

SC says 6- Month waiting period for Divorce not mandatory

The Apex Court brought significant respite for Hindu couples pursuing divorce stating that the 6-month waiting period as prescribed under Section- 13B(2) is not mandatory but discretionary, thereby, giving directions for lower courts to speed up divorce if both husband and wife agree to settle their differences including alimony, custody of child or any other pending issues between the couple. The Supreme Court stated, “If there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option.”  The purpose of having a cooling-off period is to safeguard a hurried decision taken by the parties and they consider all the chances of reconciliation.

 

Provisions governing law of maintenance are:

Under Section- 24 of the Hindu Marriage Act either of the spouses is entitled to get paid for the expenses of the legal proceedings under the Act.
Under Section- 25 of the Act, the court can direct the respondent to pay maintenance in the form of monthly payment or entire sum or even a periodical sum for a time not exceeding the life of the applicant.

The other important provisions relating to maintenance are Sections- 18 and 19 of the Hindu Adoption and Maintenance Act which was amended in 2015 and Section- 125 of the Code of Criminal Procedure.

“Irretrievable Breakdown Theory” of Marriage

There have been many instances where couples are cohabiting but their marriage is equivalent to a separation and there is no classified law for this.

In regard to this, a Report by the Law Commission as well as the Supreme Court was directed to the Government in 2009, in order to add irretrievable breakdown of marriage as a valid ground for divorce under Section- 13 of the Hindu Marriage Act, stating wisdom lies in accepting the pragmatic reality of life and thus, must take a decision which would ultimately be conducive for the common betterment of both the spouses .

These recommendations had resulted from the case Naveen Kohli v. Neetu Kohli after the couple proved that there was no reasonable chance of getting back together after the marriage broke down.

 

Marriage Laws (Amendment) Act, 2013

This amendment can be a boon in terms of maintenance as it entitles wives to husband’s share of the immovable property that he acquired in the course of their marriage in cases of irretrievable breakdown of the marriage. However, this benefit is only restricted to cases of ‘irretrievable breakdown of marriage’ and not in other cases of Divorce.

Related Post: Divorce Laws in India

Unconstitutionality of Triple Talaq

In the pathbreaking decision by the Supreme Court where it stated that triple talaq violates the fundamental rights of Muslim women as it irrevocably ends a marriage without any hope of restoration and thus, ruling it unconstitutional.

Triple talaq is an oral form of divorce practiced by some sects in the Muslim community to instantly divorce their wives by saying ‘talaq’ thrice. It is now the responsibility of the centre to pass the Triple Talaq Bill and come out with a law to regulate marriage and divorce laws among Muslims in India.

Changes in the Christian Divorce Laws

In its another landmark decision, the Supreme court has last year held that the divorce granted by the ecclesiastical tribunal under Christian personal law is not valid as it cannot override the law. The ecclesiastical tribunal is governed by the Canon Law which is the personal law of Catholics. However, the court held that any Christian couple who is seeking divorce will have to mandatorily procure a divorce from a civil court. Thus, if a couple has sought marriage annulment from such a tribunal and any of the spouses remarries after the same, it will amount to bigamy. Divorce petition by a civil court is a must for Christians now.

Alimony Calculator: How to Calculate Alimony/Maintenance in India

The underlying truth about marriage is that once the couple ties themselves in this sacred bond, they become obligated to support each other and whatever may be the grounds for divorce later, the obligation still continues and is known as ‘Alimony’.

What is Alimony?

Alimony is a monetary compensation granted to the spouse, who is unable to support himself/herself, by the other spouse during or after the divorce proceedings. The right to receive alimony depends upon the earning capacity of the person who is economically dependent on the marriage. The recipient can be a spouse, dependent children, and even poor parents.

Alimony is mainly categorized in the following two types:

  • Maintenance amount given during the court proceedings.
  • Amount given at the time of legal separation.

How is Alimony calculated in India?

The Supreme Court in one of its landmark judgments has set a benchmark for maintenance to be paid by a husband to his estranged wife, stating that 25% of the net salary of the husband might constitute a “just and proper” amount as alimony. However, a hard and fast rule to calculate alimony has not been defined under any Indian law, neither is it possible as it depends on the facts and circumstances of each case.

In India, alimony is governed as per the personal laws of the individual getting a divorce as well as under the provisions of the Special Marriage Act. A tour as to how alimony is calculated under various Indian personal laws is given below:

Alimony under the Hindu Law

Under the Hindu Law, provisions for alimony have been laid down under the Hindu Marriage Act, 1955 and the Hindu Adoption and Maintenance Act, 1986. As per the Hindu Marriage Act, a spouse can make an application for alimony to the court having jurisdiction to decide their case and the court can order either the husband or wife to pay the applicant, maintenance based on the following points:

  • The income of the party against whom alimony has been claimed;
  • Property of the party against whom alimony has been claimed;
  • The income and other properties of the applicant;
  • The conduct of the parties and other circumstances of the case.

Under the Hindu Adoption and Maintenance Act, a Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance and alimony will be granted to her on the following grounds:

  • If the wife has been deserted by the husband without her consent and is being willfully neglected;
  • If there has been cruelty on part of the husband which has caused a reasonable apprehension in the wife’s mind that it is harmful or injurious to live with her husband;
  • If the husband is suffering from a virulent form of leprosy;
  • If the husband has another subsisting marriage;
  • If the husband has an affair with another woman out of marriage who stays in the same house as his wife or in a different house with him;
  • If the husband has changed his religion from Hindu to another;
  • If there is another justifying cause of her living separately.

However, a wife claiming maintenance under the Hindu Adoption and Maintenance Act may be denied alimony if she is unchaste or has converted to a different religion than Hindu. An estranged wife can also claim maintenance from her husband under the Code of Criminal Procedure which also gives her the right to interim maintenance.

Alimony under the Muslim Law

A Muslim woman can claim maintenance either under the Muslim Women (Protection of Rights on Divorce) Act, 1986 or under the Criminal Procedure Code. The Muslim Women (Protection of Rights on Divorce) Act provides for maintenance for Muslim women only after the divorce has been granted. The wife is entitled to claim maintenance from the husband which must be made during the iddat period.

They are entitled to the following benefits under the Act after divorce:-

  • A reasonable and fair, maintenance amount to be paid within the iddat period;
  • An amount equal to mehr or dower agreed to be paid at the time of marriage;
  • A title to all the properties given to her either before or at the time of marriage or during her marriage by any of the relatives’ friends or family of the husband.

A woman under the Act is only eligible to get maintenance if:-

  • She has not remarried and is not able to maintain herself after the iddat period;
  • She has children and is not able to maintain them and perform her duties towards them;

The Act further states that if there is no one to maintain the Muslim wife then the State Wakf board functioning in the area in which the woman resides is bound to pay such maintenance as determined by the court.

 

Alimony for Christians in India

Christians in India are governed under the Indian Divorce Act, 1969. Similar to Muslim law, the Indian Divorce Act also doesn’t recognize maintenance for men. Under the Act, if a suit for divorce has been instituted either by the husband or the wife, the wife can file a petition for expenses of the proceedings and alimony during the pendency of the suit and the husband would be liable to pay the cost if an order has been made in this regard by the court. The Act also states that such an application shall be disposed of within sixty days of it being presented.

Thus, it is evident that there is no formula determined to calculate the alimony under Indian laws. In most of the cases, the alimony has been fixed by the court at 1/3rd or 1/4th of the spouse’s income. It is also noteworthy that an order for an award of maintenance made earlier can subsequently be varied, modified or canceled if the court is satisfied that there has been a change in circumstances of the parties, such as the marriage of the spouse in whose favor alimony was granted.