India Divorce & Family Law

With more than 1.3 billion inhabitants, India is one of the world’s most populous countries. With dozens of languages and customs, there are several laws relating to marriage and divorce depending on culture, religion and location. Keep reading for your guide to divorce in India.

The main laws that govern divorce in India

Some of the key laws that govern divorce in India are:

• The Divorce Act (1869)
• The Special Marriage Act (1954)
• The Hindu Marriage Act (1955)
• Muslim law

The Divorce Act (1869)

This act applies only to Christians living in India at the time of submitting the divorce petition. It applies to the whole of India except the state of Jammu and Kashmir.

The Special Marriage Act (1954)

This act is applicable to everyone domiciled in India domiciled except those in the state of Jammu and Kashmir.

The Hindu Marriage Act (1955)

The Hindu Marriage Act (1955) extends to the whole of in India except the state of Jammu and Kashmir. It is applicable to all the Hindus including a Virashaiva, a Lingyat or a follower of Brahmo, Prarthana or Arya Samaj. This act also includes the Buddhist, Jaina or Sikh religions and applies to any person who is not a Muslim, Christian, Parsi or Jew by religion.

The grounds for divorce in India

Assuming that your marriage is valid (that you were in sound mind, met age requirements and you weren’t in a ‘prohibited relationship’ when you married) then you can divorce citing the following grounds:

• Adultery
• Conversion to another religion
• Leprosy, venereal disease or ‘unsound mind’ (for a period of at least 2 years)
• Presumed death (no contact for more than 7 years)
• Non-consummation of marriage
• Renunciation of world, for example by joining a religious order
• Failure to comply with the decree of restitution of conjugal rights
• Desertion, for 2 years or more
• Cruelty, where it has created enough concern that it is impossible to continue living with the respondent.

Under certain laws, the wife can also petition on the grounds of bigamy, rape, sodomy, bestiality, failure of the husband to provide maintenance, and where she was under 18 years old at the time of marriage.

The Muslim law

Muslim laws are governed by the holy book of Quran and therefore there is no specific legal enactment present for issues of marriage and divorce.

Muslim marriages are called ‘Nikaah’ and, as it is a contract, there are certain conditions which need to be fulfilled in order to make it valid. These conditions include the provision of a dower by the bridegroom, witnesses being present, and that the marriage is ‘announced’.

A husband can divorce his wife by repudiating the marriage without giving any reason (called ‘talaq’). The husband must be of sound mind and free to make this decision, and the pronouncement must clearly indicate that he wishes to end the marriage.

The wife can divorce the husband if she has been delegated such rights by the husband in the agreement. Additionally, since the passing of the Dissolution of Muslim Marriage Act (1939) a wife also has various other grounds under which she can divorce the husband.

Mutual consent v contested divorce

Considering the various laws above, divorce in India can either be by mutual consent or through a contested divorce.

• Mutual consent – you will generally have to be separated for at least one year and you will both have to agree to the divorce. You will also have to come to an agreement about:
  • Child custody
  • Maintenance/alimony
  • Property
• Contested divorce – you cite one of the specific grounds mentioned above, such as adultery, desertion or cruelty. Here, the courts will make a decision about child custody and financial matters.

Financial settlements after divorce in India

Under the law in India, the right of financial maintenance extends to anyone who is economically dependent on the marriage. This includes either spouse, your children, or even parents.
If you are divorcing through mutual consent, then you will need to have agreed a financial settlement as part of this process.

If it is a contested divorce, the court will consider the earning potential of the spouses and their liabilities. Any financial claim on divorce rests on the other spouse having sufficient means to pay maintenance of alimony.

Factors a court will consider when deciding on a financial settlement include:

• The ages of the spouses
• The earnings of the person who is to provide alimony
• The health of both parties (if you are in ill health you may be able to claim a larger alimony)
• Which spouse has custody of any children. If you have custody then you would be entitled to pay less alimony, whereas if your ex-spouse has custody you may have to pay more.

Additionally, if the court finds that one spouse does not have an independent income to support the expenses of the court proceedings, they may direct the other spouse to pay the necessary amount on a weekly or monthly basis.

To receive alimony, you should not be engaged in adultery or have remarried.

Regarding your property, even if a divorce petition has been filed you have the right to occupy the property. If you are also looking after children, your case is much stronger. Until such a time as the property is awarded to either party in the divorce, both of you have the right to remain in the property.

Child custody following divorce in India

If you are divorcing by mutual consent, then the court will usually agree to the decision you have made regarding the custody of your child.

In a contested divorce, the court will look at your abilities to be a parent to your child. Money is not normally a consideration, as courts consider the welfare and best interests of your child.
If you are a non-working mother than you would generally expect custody of your child, with the father expected to provide financial support.