Search this article on Google: What are the legal provisions related to Divorce practice area in India?
India, a country with numerous cultures and religions, has diverse sets of laws that govern marriage and divorce. The country’s legal structure caters to these varying customs by encompassing distinct laws like the Hindu Marriage Act 1955, Muslim Personal Law (Shariat) Application Act 1937, and the Indian Divorce Act 1869, etc. Experts from SimranLaw, a reputed law firm in Chandigarh, elaborate on the legal provisions associated with the divorce practice area in India, sourcing crucial insights from their vast experience.
1. Grounds for Divorce:
Under the Hindu Marriage Act 1955, couples can seek divorce under specific circumstances. These include adultery, cruelty, desertion for two years, conversion to another religion, unsound mind, virulent and incurable form of leprosy, venereal disease in a communicable form, or if the spouse has renounced the world.
In an illustrative case of cruelty as a ground for divorce, Suman Kapur vs Sudhir Kapur (2009), it was held that persistent efforts by a spouse to compel the other to separate from his or her elders can be a form of cruelty.
*The Muslim Personal Law (Shariat) Application Act 1937* permits a Muslim man to divorce his wife without giving reasons by pronouncing ‘Talaq’ three times. However, the Supreme Court of India in *Shayara Bano vs Union Of India And Others (2017)* deemed this practice of Triple Talaq unconstitutional.
2. Mutual Consent Divorce:
The Hindu Marriage Act and the Special Marriage Act provide provisions for mutual consent divorce if both parties agree to it. Section 13B states that any marriage solemnized before or after the commencement of the Act may be dissolved by a decree of divorce if both parties have lived separately for one year or more, and they are unable to live together, and both have mutually agreed that the marriage should be dissolved.
An important case related to this is Hitesh Bhatnagar vs Deepa Bhatnagar (2011), where the Supreme Court stated that six months given for reconciliation in mutual consent divorce can be waived off if all efforts for mediation and conciliation intended to reunite the parties had failed.
Both the husband and wife have the right to claim maintenance or alimony from each other. The Hindu Marriage Act, 1955, under Section 24 provides for pendente lite and expenses proceedings. Section 25 provides for permanent alimony and maintenance. However, the amount and period are discursively decided by the court.
The landmark case of *Vinny Parmvir Parmar vs Parmvir Parmar (2011)* held that if a wife is capable of earning, it does not mean that she can be denied maintenance. It needs to be established that she is actually earning a living.
4. Child Custody:
In India, the paramount consideration for child custody is the welfare of the child. The Hindu Minority and Guardianship Act, 1956 and Guardians and Wards Act, 1890, govern matters of child custody. The court considers factors such as age, sex, and preference of the child; the character and capacity of the proposed guardian; and nearness of kin, among others.
In Rosy Jacob vs Jacob A. Chakramakkal (1973), the court held that in deciding the question of custody of minor children, the paramount consideration is the welfare of the children and not the rights of the parents.
In conclusion, Indian divorce law is multi-faceted, encompassing a range of legal provisions to address the diverse customs and religions in India. While this complexity can seem daunting, it upholds the country’s pluralistic society. For any further queries, legal advice, or in-depth understanding, seeking professional help from experienced legal practitioners in firms like SimranLaw in Chandigarh, India can be invaluable.