10 Things You MUST Know Before Signing Divorce Papers in India

Going through divorce is a life altering experience and is unique to the one who is going through. It is a very significant decision that affects the person in different aspects. In India divorce may also throw challenges in terms of child custody, property distribution, dowry harassment, domestic violence cases and so on. The longer the marriage, the more entangled are the financial and social interdependencies. Hence careful consideration of the following points would keep you prepared to face the storm. 

1. Understand the Legal Grounds for Divorce in India

First and foremost understand the legal provisions under which you can seek matrimonial remedy in divorce. In India different religions follow different personal laws and in addition there is also a secular law for the matters related to marriage, child custody, succession of property and such other things. Hence it becomes essential to understand where your case stands. 

Let’s look into the grounds for contested divorce under different laws;

i) Hindu Law: Hindu Marriage Act, 1955

For Hindus, including Buddhists, Jains, and Sikhs, divorce is primarily governed by the Hindu Marriage Act, 1955. This act lays down the grounds for divorce, the procedure to be followed, and the reliefs available to the parties.

Grounds for Contested Divorce

Under the Hindu Marriage Act, either spouse can file for divorce on several grounds. These include:

– Adultery: If one spouse has had voluntary sexual intercourse with someone other than their spouse after the marriage.

– Cruelty: If one spouse treats the other with cruelty, whether mental or physical, making it unbearable for the other spouse to live with them.

– Desertion: If one spouse deserts the other for a continuous period of at least two years before filing for divorce.

– Conversion: If one spouse converts to another religion.

– Mental Disorder: If one spouse has been suffering from a mental disorder that makes it impossible for the other spouse to live with them.

– Venereal Disease: If one spouse has a communicable venereal disease.

– Renunciation: If one spouse renounces the world and enters a religious order.

– Presumption of Death: If one spouse has not been heard of as being alive for seven years or more.

ii) Muslim Law: Dissolution of Muslim Marriages Act, 1939

Divorce under Muslim law is governed by personal laws namely Shariat derived from the Quran and the other laws of the land such as Muslim Personal Law (Shariat) Application Act, 1937, Dissolution of Muslim Marriages Act, 1939, Muslim Women (Protection of Women on Divorce) act, 1986, Protection of Muslim Women Act, 2019. The rules for divorce in Islam are quite different from those under Hindu law, reflecting the religious principles that underpin them. In Islam Marriage is a contract and hence Divorce had been part of the marital contracts from the olden days. 

Types of Divorce

Muslim law recognizes several forms of divorce:

– Talaq: The unilateral pronouncement of divorce by the husband. Traditionally, a husband could pronounce talaq three times to divorce his wife instantly (known as triple talaq), but this practice was declared unconstitutional by the Supreme Court in Shayara Bano v. Union of India (2017). 

– Khula: A divorce initiated by the wife, where she returns her dower (mahr) or any other compensation to the husband.

– Mubarat: A divorce by mutual consent where both parties agree to dissolve the marriage.

– Depending on the Sunni and Shia practices there are a number of ways in which divorce can be sought ny husband namely, Talaq- e-hasan, Talaq-e-ahsan, Talaq-ul-biddat, Talaq-e-tafweez, Talaq-ul-sunnat, Lian, Zihar and Ila

Grounds for Divorce by Wife

Under the Dissolution of Muslim Marriages Act, 1939 a Muslim wife can seek divorce on several grounds, including:

• Unknown whereabouts of husband for four years or more

• Neglect to maintain wife for 2 years or more

• Husband sentenced with imprisonment for 7 years or more

• Failure to perform marital obligations for 3 years or more

• Impotency

• Insanity or venereal disease in virulent form

• Repudiation of marriage by the wife before turning 18 years 

iii) Christian Law: Divorce Act, 1869

Divorce among Christians in India is governed by the Divorce Act, 1869. This act applies to Christians and provides specific grounds for divorce, along with procedures for obtaining it.

Grounds for contested Divorce

The Indian Divorce Act allows either spouse to file for divorce on the following grounds:

– Adultery – The act of adultery by the spouse is a valid ground for divorce.

– Conversion – If one spouse converts to another religion, the other spouse can claim matrimonial relief. 

– Unsound mind – If one spouse is of unsound mind for a period of at least two years before filing the petition

– Venereal disease in a communicable form

– Not heard of seven of more years

– Refusal to consummate the marriage

– No cohabitation after restitution of conjugal rights order for 2 years or more

– Desertion – If one spouse deserts the other for at least two years.

– Cruelty – If one spouse treats the other with cruelty, making it unsafe or improper to continue living together.

iv) Parsi Law: Parsi Marriage and Divorce Act, 1936

The Parsi Marriage and Divorce Act, 1936, governs divorce among Parsis in India. The grounds for divorce under this act are largely similar to those under the Hindu Marriage Act, but with some specific provisions relevant to the Parsi community.

Grounds for Contested Divorce

The Parsi Marriage and Divorce Act allows for divorce on the following grounds:

• Non Consummation of marriage

• Unsoundness of mind 

• Adultery/ fornication/ bigamy/ rape/ unnatural offence 

• Cruelty

• Caused grievous hurt/ infected with venereal disease 

• Undergoing imprisonment for 7 years or more 

• Desertion 

• Non resumption of cohabitation for more than a year after separate maintenance order

• Conversion to other religion 

v) Special Marriage Act, 1954

The Special Marriage Act, 1954, provides a framework for civil marriages and divorces that apply to all Indian citizens, regardless of their religion. This act is often used by couples from different religions or those who wish to marry outside their personal laws.

Grounds for contested Divorce

The grounds for divorce under the Special Marriage Act are similar to those under the Hindu Marriage Act and include adultery, cruelty, desertion, mental disorder, and venereal disease. Additionally, the act provides for divorce by mutual consent, where both parties agree to dissolve the marriage after living separately for one year.

Key differences between contested and mutual consent divorce:

When both the spouses are agreeing to get divorced amicably and the terms and conditions of the divorce are mutually agreed upon, they can approach the court with a joint petition and seek divorce. Here neither party is pointing fingers at each other. It is a faster way to get divorce with less stress. 

Contested Divorce case is filed when only one party decides to start the divorce procedure on any of the applicable ground/s. The other party becomes the respondent and also given sufficient opportunity to put forth his/ her say. 

In both types of divorces, mediation is mandatorily suggested to see if the issues can be solved amicably. 

2. Impact of Divorce on Child Custody and Visitation Rights

For the couples having children, the most challenging part of divorce is to decide on the custody of children. The important factor considered by the courts while deciding the child custody cases is the “Welfare of the child is the paramount”. So, there is less room for rights of father or mother, it is always the welfare of the child. When one of the parents gets sole custody, the other parent can seek visitation rights at scheduled intervals like every weekend or for a particular time period or during school holidays and so on.  

Joint custody of the child is gaining popularity as parents are now ready to share the time with the kids equally and make necessary arrangements to make it easier for the children. 

It is in the best interest of the minor children that the parents keep the fight between them civil and don’t let the stress seep into the kids who are observing everything. 

3. Division of Property and Assets

There are no explicit guidelines in India to distribute the property post divorce. The property in question could be Jointly owned, self acquired prior to the marriage or post marriage, received as a gift or inherited. The court looks into the matter considering other facts of the case and takes a decision on the distribution of such property. The precedents are also looked into while deciding on these cases. Other factors considered are the contribution by the spouses, length of the marriage, children and their age, who gets the custody of the children, current financial situation of the parties and so on. 

It is important to understand one’s rights when it comes to the shared assets or joint properties as per the laws applicable. An expert family law advocate can guide you to understand your rights on such properties. 

4. Spousal Maintenance and Alimony

The maintenance is sought by one of the spouses from the other for the sustenance post divorce. Even though both wife and husband can claim maintenance, in general practice wives are the one who claim it very frequently. The court collects the details of assets and liabilities of both the spouses on an affidavit and looks into it thoroughly. To provide the same standard of living post divorce to the spouse claiming maintenance is the key consideration while deciding the amount of maintenance. However, if the other spouse has no means to provide the same, the quantum may be reduced or no maintenance be ordered. 

Alimony is one time settlement in terms of money or property post divorce. This could be a settlement in lieu of marriage expenses for short term marriages or a lump sum amount to start afresh post divorce. 

The Supreme Court has summarised all the aspects in the landmark case of Rajnesh v Neha, AIR 2021 Supreme Court 569 where an affidavit format was mandated to be put to use in all the trial courts where the maintenance claims are being made by either of the spouses. The Supreme Court acknowledged that there cannot be any straightjacket formula to calculate the quantum of maintenance. The interests of the applicant spouse and the financial capabilities of the respondent spouse to be weighed in. The factors to be considered while deciding the maintenance claims include (not limited to); status of the parties, needs of the applicant, income, assets & liabilities, financial responsibilities of both applicant and respondent, age & employment of both the parties, residential arrangements, maintenance of minor children, illness or disabilities. 

5. Financial Considerations: Settlement or Litigation?

For marriages that fall apart too early, it is detrimental to one’s youthful days if litigation goes on for many years. It is advised to settle the matters amicably so as to move on in life. Mutual as well as contested divorce involves mediation where spouses can come to a settlement while deciding on matters such as property division, payment of maintenance, alimony, child support, etc. At the same time it is important to make sure both the spouses get a fair financial settlement. 

6. Legal Rights You May Not Be Aware Of

Each Divorce case is unique and so is the remedy that one can get. It is essential to explain all the hardships that one has gone through while in the marriage to an expert divorce lawyer. The details may prompt them to seek remedies under different laws, where applicable. Apart from matrimonial laws there is Protection of Women from Domestic Violence Act, 2005 where the wife can seek Protection orders, Residential orders or Maintenance among other benefits. Similarly in cases of Dowry Harassment one can seek help through Dowry Prohibition Act or Bhartiya Nagarik Suraksha Sanhita, 2023. 

7. Effect on Your Tax and Financial Status

In India, the alimony and maintenance received are not tax payable. At the same time, the one who pays the alimony and maintenance does not get any tax benefits, it is not a tax deductible expense. The financial status of both spouses get affected post divorce, especially among couples who have been together for a longer time and the finances are entangled with each other. 

In a developed economy like United States of America, as per the research based article https://yourdivorcequestions.org/how-will-divorce-affect-me-financially/ makes the following observation;  

The financial burden is greatest during the first year after divorce and varies depending on: (1) how much money the woman contributed to the family income before divorce, and (2) the ability and willingness of her former husband to make child support payments.

• About one in five women fall into poverty as a result of divorce. 

• About one in four women lose their health insurance for a period of time after divorce.

• About one in three women who own a home and have children at home when they divorce lose their homes.

• Three out of four divorced mothers with child-support orders don’t receive their full payment.

• Women often need the help of public assistance programs to supplement their family finances, which often still fail to cover all financial necessities after divorce.

It is also important to note that the spouses need to collect and organise all the financial and legal documents. The names of nominees or beneficiaries mentioned in any financial investments may have to be changed, if necessary. 

8. Repercussions on Personal Relationships (Family & Social Impact)

The family dynamics and support system may get totally disturbed due to the divorce and living separately post divorce. When children are involved, the importance of having their grandparents from both sides may be beneficial for their upbringing. Where possible, continue with the social environment for children without disturbing the social and mental well being of the divorced couple. 

The slowly changing aspect of social stigma around divorce and divorcees may have an impact on your psychological well being. Be prepared to ignore such biases and focus on the positive outcomes and future goals. 

9. Know Your Rights in Case of Domestic Violence

For the victims (women) of Domestic Violence of any kind there are remedies under special legislations such as Protection of Women from Domestic Violence Act and Dowry Prohibition Act apart from the common criminal laws. Women can claim protection orders, maintenance, counselling, residential rights and such other civil remedies also under the law. 

For men, who are victims of cruelty in terms of false cases, financial extortion, physical and mental abuse, etc. can claim the remedies under matrimonial laws as well as criminal laws. 

10. Seek Professional Advice Before Signing the Papers

Consulting a divorce lawyer is very important once you have made up your mind to go for divorce. In case of Mutual Consent Divorce there can be only one advocate representing both the spouses. However, there can be two independent advocates representing each party, in case any of the spouses feel his/ her interests are not represented effectively. In cases where one of the spouses sends the divorce papers for mutual consent divorce and asks the other to sign them, make sure you read them thoroughly and understand each and every clause. If in doubt, clarify with the advocate or hire another advocate to understand better. 

Hiring an experienced and exclusive family law advocate helps in navigating through the divorce process smoothly. The technical know-how, the local practices and the in-depth knowledge of nitty-gritty of matrimonial laws comes into play for an effortless experience while going through the legal process. 

Conclusion

Before you sign the divorce papers make sure you are aware of the above mentioned pointers and consult a legal counsel (lawyer/ advocate) to get a tailor made strategy considering your case scenario. Be informed of your rights and remedies under the law if you are going through matrimonial hardship. The legal process that may seem to be complicated and involving too many steps can be simplified with the help and guidance of an expert in the field. Choosing a competent advocate lays the foundation for a hassle free resolution of the matter.