Did you know there has been an increase of about 350% in divorce rates in India in the last two decades?
India is a nation that places significant emphasis on family values. But in short of that, divorce is a multifaceted matter, intertwining both legal and social dimensions. The recent media coverage has thrown light on the divorce proceedings of Raymond’s Gautam Singhania where his wife has been reportedly seeking a substantial portion of 75% of her husband’s net worth. With the complex nature of this divorce, it is important for the individuals to safeguard their interests during this period.
Recognizing divorce as an intricate blend of legal and emotional challenges, especially in a society where family values hold great importance, it becomes crucial to navigate the process with care. A case in point is the ongoing saga involving Gautam Singhania, underscoring the significance of protecting oneself amidst the contentious issues surrounding property and its division in Indian divorces.
In light of these circumstances, this article aims to offer guidance on preserving one’s interests and steering clear of the contentious aspects of property separation during divorce proceedings in India.
Understanding Grounds for Divorce
1. Adultery
Engaging in a sexual relationship outside of the confines of their marriage, pertains to adultery, leading the aggrieved party to pursue divorce proceedings. One of the monumental cases that played a significant role in reshaping the legal stance on adultery in India is Joseph Shine vs. Union of India (2018) (AIR 2018 SC 4321). The Supreme Court deemed Section 497 as unconstitutional which was a landmark decision, citing its discriminatory nature and infringement on the right to equality.
Although it was not directly related to divorces, it played a crucial role in defining the divorce landscape in India.
2. Cruelty
Cruelty, as a basis for divorce, refers to any physical or mental harm inflicted by one spouse upon the other. In the landmark case of V. Bhagat vs. D. Bhagat (1994) (AIR 1994 SC 710), the Supreme Court emphasized that the cruelty must be severe enough to render it impossible for the petitioner to live with the respondent without experiencing mental agony, torture, or distress.
This case established clear criteria for determining cruelty as a valid reason for divorce, providing a comprehensive interpretation of the term.
3. Desertion
Within the realm of divorce proceedings, desertion is characterized by one spouse leaving the other without a valid reason for a period of two years. The deserted individual is then permitted to file for divorce on the basis of desertion. In the landmark case of Bipinchandra Jaisinghbhai Shah vs. Prabhavati (1957) (AIR 1957 SC 176), the Supreme Court established desertion as a deliberate and unjustified departure from the marital abode with the intention of ending cohabitation permanently.
This ruling established a standard for determining the grounds for desertion in divorce proceedings.
4. Religious Conversion
Under certain circumstances, such as a shift in religious beliefs and the failure to fulfil customary religious obligations, divorce may be justified. In the landmark case Lobo vs. Lobo (1974) (AIR 1974 SC 2089), the court emphasized that simply converting to a different religion may not be enough to warrant a divorce.
It was determined that neglecting customary religious obligations must be both significant and consistent, ultimately resulting in the breakdown of the fundamental aspects of the marital bond.
5. Mental Disability
In instances where one spouse has been affected by a severe and prolonged mental disorder, the other spouse may seek a divorce on the grounds of mental disability. This was established in the case of Kollam Chandra Shekhar v Kollam Prema Latha (2014) SCC 1 225 Justices G S Singhvi & Gopala Gowda highlighted the extent of mental illness that interferes in the marital life to be considered.
Divorce can be sought when the degree of mental illness is so high that it makes it impossible for the marriage to work.
6. Irretrievable Marriage Collapse
In cases where the marriage irreparably breaks down, and there is no prospect of reconciliation, either party holds the right to file for divorce citing the irretrievable breakdown of the marital union as the grounds for dissolution.
The case of K. Srinivas Rao vs. D.A. Deepa (2013) (AIR 2013 SC 4641) recognized the concept of irretrievable breakdown of marriage as a valid ground for divorce. The court held that if it is demonstrated that the marriage has broken down irretrievably and efforts for reconciliation have failed, the court may grant a divorce.
The concept of irretrievable breakdown of marriage can be applied to cases where the parties have been living separately for a considerable period, and the marriage has broken down irretrievably. This case paved the way for acknowledging the breakdown of marriage as a separate ground for divorce in India.
Know your Rights
When seeking legal advice or conducting research, it is crucial to have a thorough understanding of your legal entitlements regarding assets and properties. This knowledge serves as a significant protection against the possibility of losing rightful claims. There is no fixed formula to divide the property between the husband and wife.
When The Hindu Marriage Act, 1955 applied under Section 27 the competent courts have the discretionary powers to divide the assets as they deem fit considering the facts presented before them. However, the properties acquired prior to marriage remain with the rightful owner, unless he/she willingly or through court order transfers to the other spouse.
The properties jointly held by the parties may have to be divided between the two or transferred to one of the spouses. Any movable or immovable property obtained as Streedhan shall remain with the wife.
Simultaneously conduct a thorough financial analysis, which may include income and debt ratio along with prevailing bankruptcy trends. Gather a detailed information-based list of savings, investments, valuable items, and related financial documents which includes bank statements, records about real properties, returns on taxable items insurance policies, etc; free from joint assets or liabilities.
It should be essential for a person to familiarise himself or herself with the spouse’s income, and consider carefully individual and shared debts so that they can be concisely divided between the partners. If two contesting parties would like an amicable settlement to decide a matter of dispute in the court, the financial burden of clearing the debts should be equitably distributed.
Start the administrative implementation of financial disentanglement by sealing off the joint accounts, moving cash records to individual bank types, and curtailing mutual credit card employment. The first objective action should be a liquidation of jointly held investments including the fixed deposits required to initiate financial independence.
At the same time, undertake to inspect and revamp nominee data which is spread across a diverse range of financial instruments like life insurance, mutual funds, bonds, bank account departmental (SEBI) as well as Demat accounts Provident Fund and PPF. Further, if your will grants rights to a spouse as a beneficiary have it reviewed based on present financial needs and implement the changes in benefactors.
Understanding asset division in Divorce
As for the allocation of assets after a divorce, it becomes quite an ordeal when it comes to marriage. In India, in the case of an uncontested divorce, there is a consensus that serves to divide assets as fairly as possible.
However, according to the Hindu Marriage Act, any possession procured after and during the marriage union is declared communal property and must be discovered by division. This, however, includes investments such as property and assets like bank accounts, investments, and other movable properties.
As an asset division, the court considers a number of components within the endeavour that they are; length of matrimonial bond, financial standings for both spouses, liabilities of the parties as an individual as well jointly, and each spouse’s presented contribution to union. For a reason, the jointly held assets and liabilities by both parties may become a challenge for the amicable settlement.
In a contested divorce, it is highly crucial to seek the help of an expert lawyer and provide all the details about your wealth position so that fair property splitting may take place.
Protecting Assets During Divorce
This implies, therefore, that in consideration of any impending divorce process, measures are taken to ensure that all property stands the risk or loss from being lost during such processes. Therefore also, it is important always to protect such valuables as savings and businesses among others most notably by a well-formulated strategy to safeguard them ultimately so as not to be divided out unjustly.
In the case of divorce, India has a number of strategies to ensure that assets are protected from outside parties. It is an uncommon solution that people can consult before they agree to get married and create a prenuptial agreement. This is a formal legal agreement on how the assets of couples will be shared should there be a divorce between them. The practice that is prevalent in some countries outside India may be adapted by the high net worth individuals to safeguard their businesses or the assets acquired prior to the marriage.
Another approach would be in such a case that you get married; and thereafter, sign the postnuptial agreement. The other kind is like a postnuptial agreement, mainly developed after the union has been formed.
Traditionally in India, prenuptial or postnuptial agreements do not go with our belief in considering marriage as union of two individuals through a holy sacrament. There is no legal validity of a prenuptial agreement in the existing law. It was considered to be against Public Policy by the Indian Courts. However in a recent judgment made by a Family Court Judge of Patiala House District Courts in HMA No. 181/2023 goes “Time has come to make compulsory prenuptial agreement to be executed before appointed authority after counseling of the parties about the possible risk of marriage going haywire for variety of reasons and making it mandatory to report breach every time breach occurs under intimation to the party allegedly at fault, making it further clear that if breach not reported he/she would not be heard later on that he/she did not report thinking that she/he would improve”
Therefore, in a Divorce process, it is crucial to seek the services of a reputable attorney who can fight an equal battle for assets. The lawyer will bring a fair deal of the divorce by helping in the negotiations that will be conducted to settle on acceptable settlement terms.
Research results indicate an upward trend on divorce in India for the past three decades. Division was set at 0.8 per 1,000 of the Indian population in the year 2019. Even though this is still rather low in the context of other countries, it represents a rather solid improvement compared with earlier years. In an environment where divorce is often inevitable, the importance of couples protecting their assets during divorce proceedings gets more critical.
The Maintenance Game
Maintenance and alimony, in essence, constitute the court-ordered financial support that one spouse is obligated to provide to the other, irrespective of their divorce status. During the divorce proceedings, interim maintenance is allocated, serving as a predetermined sum to meet the needs of the recipient while the legal process unfolds. This provision ensures that the party receiving maintenance is not financially disadvantaged and maintains a fair standing during the litigation.
Post the conclusion of divorce proceedings, a decided amount is stipulated, mandating one partner to provide financial support to their separated spouse. If the obligated party fails to fulfil this maintenance after divorce, the recipient retains the right to seek legal recourse through the court system.
In determining the quantum of maintenance and alimony, various factors are taken into consideration by the court. These include prospective expenses, lifestyle needs, educational costs for children, inflation, medical expenses, and more. Crucially, the amount is established based on the financial capabilities of both parties, substantiated by sufficient proof of their financial standing. While it need not be extravagant, once decided, the giver is legally bound to fulfil their financial responsibilities, as outlined in the court order. Notably, the guidelines set forth by the Supreme Court in the case of Rajnesh v Neha have played a significant role in influencing decisions related to maintenance and alimony, emphasizing a fair and reasonable approach in determining these financial obligations.
Tips to keep in mind while contesting for Divorce
Consult with an experienced lawyer
One of the most significant protective milestones you may take during divorce is to find a professional and learned advocate who understands divorce intricacy. The divorce laws differ according to religion in the Rivulet and it is important in hiring a capable lawyer who has complete knowledge about the specific status that applies for your case.
A lawyer with enough knowledge about the law and cases will lead you through the process of legal proceedings, enlighten you on your rights and help you make informed decisions.
Gather Essential Documents
The important preliminary step in divorce is collecting and organising all financial and legal documents because they are the basis for resolving property issues. The filed documents may be the property records, bank statements; tax forms; list of assets and liabilities. A complete set of documents will not only help your attorney put together a sound case for you but ensure the even division of all assets that is just in the situation
Financial Independence
Financial freedom at divorce and within its course is also significant. If it is required to make appropriate arrangements such as by opening a separate bank account ensuring that you have funds at your disposal. List down the number of income you have and lest not forget your expenses to ensure financial security that would aid in establishing alimony or maintenance requirements.
Safeguard your personal assets
The personal assets that have emotional value must be protected to help yourself from going through undesired turmoil. Including assets that are of sentimental value, documented and tangible possessions that create relevance between disputing parties should be secured to promote a smooth transition. Restrictions, where appropriate, on shared properties could be imposed through a court order.
Educate Yourself
Study the laws that favor you, most especially on child custody, alimony, and division of property. There are various laws that apply to different religions and personal statuses for divorce in India; it is, therefore, vital to have knowledge about legal premises pertaining to your case. This information will inform you, making it possible for you to make wise choices and fight for your rights while in court. An experienced divorce lawyer can make you understand this and can lessen your burden.
Prioritise well being of Children
There should be a priority placed on the welfare of children when they are engaged in any activity. Work with your impending former spouse to create a co-parenting plan that accords due consideration of the interest of the children. Have the necessary material ready proving your capability to create a reliable loving atmosphere.
Settle by Mediation
In a situation where children are involved, it is better if their welfare is given importance. Work together with your future ex-spouse to set up a co-parenting plan by keeping in mind that children get the most important benefits. You are ready to be able to provide a secure, safe, and loving home.
Advocate Kiran S R – A highly skilled, passionate, dedicated advocate, with vast wealth of knowledge, professionalism, ethical approach and expert skills. One of the sharpest legal mindset brings the best principles of legal practice to the forefront. A qualified Engineer turned Advocate. His passion, dedication and vision to help and assist his clients achieve the best results is his driving force.
