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Divorce Lawyers in Ghaziabad & Delhi
Divorce is legal termination of a marriage. It is referred as dissolution of marriage such that parties to the marriage are no longer considered married to each other. Divorce being a legal act requires a legal affirmation by the court for finalisation. Any person who wishes for divorce must reach the court through an application requesting the same. However there is many issues and conflicts that needs to be addressed by the court before granting divorce to a couple.
In India, Divorce is more than a legal process, it is considered a social stigma and the law also tries to protect the relationship between two individuals. However this shouldn’t stop a couple or an individual to live in a bad marriage. But at the same time one cannot assume Divorce is granted the moment one applies for it. There are certain legal aspects that need to be established before the court to get divorce. It is always better to seek legal advice prior to filing of divorce but in this article we will talk about some basic elements that needs to be addressed.
As mentioned earlier, there are many legal issues that are needed to be addressed before granting Divorce. The question of maintenance to be paid by one party to the other till the time a case is in the court for adjudication or after the divorce is one of the issue. The amount of maintenance, the method of such payment, maintenance to be paid for the child etc. are other consideration. Another issue can be related to Child Custody as to which party should have the right over the child and his/her well-being. Any property given at the time of marriage or acquired by the couple jointly or the question of residence after divorce is also a question that is to be answered.
The ways to get divorce in India are primarily two. The first being a simple and most efficient way to get a divorce called Divorce by Mutual Consent. As the name suggest, it is a divorce between the couple who are mutually agreeing to get a divorce and end their matrimonial relationship on mutually agreed terms. All this couple has to do is come forward with an application in which they beforehand agree to all the other legal issues as discussed above. They have to agree on the issue of maintenance, child custody and joint property to get a divorce under this head. The application under this kind of divorce may be jointly filed and even through the help of a common lawyer. It is time and cost effective way to get a divorce under Indian laws and with less mental suffering.
Other than mutual agreement we also have to follow certain other legal formalities to get a divorce which are as follow:-
Both the parties to the marriage are living separately and not as husband and wife for a period of one year or more.
Both the parties are not able to stay and live together as husband and wife.
If no such withdrawal takes place, the court will grant a divorce to the parties putting a legal end to marriage in between them.
Both parties have mutually agreed to dissolve the marriage and a petition of the same in writing is presented in the court.
After the petition is filed a waiting period of 6 month is granted to the couple for withdrawing the petition and re-think about divorce.
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Although sometimes, divorce turn out to be messy judicial battle owing to the emotion involved in it and parties fail to come to any mutual understanding on any legal issue. It so happens sometimes that one party refuse for divorce or not agree on issue of maintenance or custody of child. In such cases, obviously, mutual agreement can’t be expected and we have to adopt other ways to get divorce. Mediation between parties by the help of legal professional so that they agree to such terms and condition may be one of the solution to it. Mediation is simply out-of-court settlement to a difference or conflict between the couple and would help them in coming to a harmonious solution.
If there is no scope of coming to any mutual understanding then a divorce can only be contested in a court. This means that a party who is willing to get a divorce has to file a petition asking for it. He/she would have to prove certain fault or wrongs committed by the other party to the marriage in order to satisfy the court that divorce is the only way to settle the dispute. There is a list of these fault grounds already mentioned in the statute.
These are
- Adultery: Adultery means having a sexual relationship with anyone outside the legal wedlock. May it be the husband or wife if any of them after the marriage is solemnized voluntarily had sexual intercourse with an individual that is not their spouse then such action would be treated as a fault on their part and then other party to the marriage (aggrieved party) may use this fault to ask for a divorce.
- Cruelty: The term cruelty is not defined anywhere. Cruelty as a matter of fact depends on facts and circumstances of each case and not judged by any fixed straight jacket formula. In most of cases it is violence that falls under cruelty but it has been time and again ruled that mental cruelty through the conduct of the party also constitutes cruelty and thus a valid ground for divorce. The basic premise that one has to establish is that the aggrieved party has been subjected to such a treatment that reasonably he/she could not be expected to live with the defaulter a normal life. It is not only related to physical harm and injury to health but an injury to mental peace and reputation as well. Although, such acts must be grave enough for the court to rule in favor of divorce and should not be an isolated event or an act classifying as normal wear and tear of marriage. False criminal charges such as under Domestic violence or Dowry Prohibition act or any other criminal case brought against a party to the marriage is also cruelty and aggrieved party (one against whom a false case was lodged) may ask for Divorce.
- Desertion: Desertion simply refers to the act of a party to the marriage to withdraw from the society of the petitioner (aggrieved). Such an act of leaving the company of the aggrieved party must be
- Without any reasonable justification and
- Without the consent of the aggrieved party.
- Causing wilful neglect of the aggrieved party to the marriage
In simple words it means the abandonment of one party by another defaulting party. Although it is not necessary that there exists actual physical abandonment but even if by the acts of the party it is clear, that the accused has withdrawn from cohabitation or performing his marital obligation then such acts would qualify as desertion. For example: living in the same house but not sharing a healthy husband and wife relationship. One has to establish that the accused party has deserted the aggrieved for not less than 2 years before the filing of the petition.
- Conversion: Conversion to other religious faith by a party to the marriage will be ground for divorce by the other party to the marriage. It is only the explicit act of conversion to non-Hindu faith like Christianity, Islam and Zoroastrianism that would enable this ground of divorce. It will not include conversion to other Hindu Faiths like Buddhism, Christianity etc.
- Incurably unsound mind: When a person is suffering from an incurable form of insanity which includes unsoundness of mind or such mental disorder of the extent that it becomes reasonably not possible for the other party to live with them then such is a valid ground for divorce. In simple words any kind of mental illness which would render cohabitation reasonably impossible is a valid ground for divorce.
- Communicable Venereal Disease: Venereal disease a ground for divorce if the same is in a communicable form. Everyone has a right to health thus if a party to the marriage is suffering from such communicable disease that would negatively impact the health of aggrieved party the same would be a ground for divorce.
- Renunciation: Renunciation from the world and society and taking religious order such that he doesn’t have any social interaction with the common world is a ground for divorce. A vow to enter celibacy and becoming a saint and having disinterest in worldly affairs is a fault ground as a spouse of such individual should not suffer because of his conduct as a result of his/her personal decision to enter into another way of living and devotion his/her life for religious purposes.
- Presumed death: Under Indian law any person who is missing from 7 years and no one, who could be expected to have has the knowledge of his whereabouts, have heard of him for 7 years is presumed to be dead for legal purposes. This same ground of presumption of death can be invoked by the aggrieved spouse to take divorce and put a legal end to any matrimonial duties they may have had. The bar is simple that the person should be missing for 7 years to take advantage of this ground.