In this three-part series, lawyer Chethana V writes on the legal process involved in divorce.

A man and woman face each other, image in low-lightImage for representation
news Law Thursday, July 29, 2021 - 14:27

Note – This article is not a substitute for legal advice or consulting with a lawyer, who will be in a better position to advise you with respect to the facts and circumstances of your case, but merely a tool to help the reader understand better about the Indian matrimonial and personal law framework. 

The year 2011 was quite eventful for many reasons, including the event of the Real Marriage and the Relentless Priest. During the film-shooting of Force, Genelia and John Abraham were to get married in one scene. They hired a real priest, who said real mantras, and was convinced that the marriage between the actors was real. He stood outside the producer's house, according to some reports, asking for an opportunity to explain to the actors that they were indeed husband and wife. 

While I admire his dedication to the institution, it must be noted that at no point could Genelia and John be married because of his mantras, because they were Christians, and these were rituals under the Hindu Marriage Act. Like we discussed in Part One of this series, personal laws in India are linked to one's religion, and the rituals that took place at the time of the marriage. 

At this point, an article about divorce and marriage is not complete without mentioning the Vijay TV serial trailer that is making the rounds. I want to clarify - you are not legally married if a man with a severely constipated facial expression ties a yellow thread around your neck, to exact revenge because you prevented him from separating a couple who appear to have completed their own marriage ceremony (self-respect marriage, as discussed in Part One)". The serial trailer raises many concerns and questions about toxic masculinity and intolerance, but that woman can remain assured that she is not that man's spouse. 

Even if it is considered a marriage (it is not), it can be voidable at the instance of the woman, and the "marriage" can be dissolved in court.

We have discussed the different remedies available for matrimonial disputes in Part Two. In this part, we will look at the other elements involved in these proceedings.

Mediation and counselling

In any matrimonial dispute, it is the duty of the court to examine whether the same can be resolved between the parties. The court may order the parties to first go to mediation, or counselling sessions, when a contested case has been instituted. This is an opportunity for the parties to voice their grievances to a third party mediator/ counsellor and examine the possibility of a reunion, or settlement. 

Maintenance 

Under the personal laws, a woman is entitled to claim interim maintenance for herself, as well as for the children, from her husband. Interim maintenance, as the name suggests, is the amount that can be claimed as maintenance when the case is pending in the court. Depending on the wife’s economic background, and the earning capacity of the husband, the court fixes an amount that is payable in regular intervals, until the conclusion of the case. The wife can also file for maintenance under Section 125 of the Code of Criminal Procedure, and this particular legal provision is religion neutral. 

After a recent Supreme Court judgment, both the parties to any maintenance proceeding have to file a list of assets and liabilities, disclosing relevant information regarding their financial position to the court. This will also be considered by the court while determining the amount of compensation to be awarded to the party claiming for the same. 

If there is a change in circumstances after the court passes an order of maintenance, for example – increase in school fees, increase in medical expenses, one party losing their job – the individual who seeks to modify the amount of maintenance can go back to court seeking to revise the sum of maintenance that has been awarded. 

Custody and guardianship

If the parties have children, then the question of custody and guardianship comes into the picture, and there is a distinction between the two. You have custody of the child when the child is physically present with you.  Guardianship is the legal recognition of being a person who can take decisions for the child, and having responsibility for the child. The father and mother are guardians of the child, however, if one party wants sole custody and guardianship, they can either discuss with the other party and agree to proceed with it mutually, or they will have to unilaterally move court for that. 

This also involves deciding visitation and holiday arrangements. If one person is having primary custody of the child, the issue of visitation for the other person can be discussed. With the advent of COVID-19 and the decrease in mobility, video-calls with the children are also being used in the place of physical visitation and the concept of communication rights (stay in touch with the child through calls and video-conferencing) of parents who do not have primary custody of the child is emerging.  

Return of articles 

A person who leaves their matrimonial home usually does not plan to do it, and as a result, many of their belongings are still in that house. If the articles are not returned upon request in a contested proceeding, a petition to return articles can be filed in court, and the court will order the return of the same, after hearing the other party. In a mutual consent petition, this can be agreed upon between parties and be included in the terms of the divorce. 

Where the other person is willing to return the articles, it is prudent to make a list of the articles, and receive a signature as an acknowledgement of receipt from the person receiving these articles. The article can be anything that the person expects to be returned to them – jewellery, clothes, cars, books, property, and utensils – there is no fixed definition for it. 

Domestic violence and the Family Courts

Domestic violence can compel a person to leave a marriage. While a woman may not want to face the rigour of filing a domestic violence case or a criminal case against their spouse, they may want to file for separation or divorce. 

The Protection of Women from Domestic Violence Act was enacted in the year 2005. It is applicable not just to married women, but any woman residing with a man in the nature of marriage. Thus, the Act is also applicable to heterosexual live-in couples. 

Under this Act, the definition of domestic violence is not just restricted to physical violence, but also deals with emotional, verbal, and economic cruelty. Economic cruelty is a relatively new concept, and includes cases where the woman is not given adequate money to maintain herself, the children, and running of the house. The Act also deals with:

  • Protection orders – To restrain the partner from entering the woman’s house or place of employment, restraining the partner from entering the child’s school, prevent the partner from committing any acts of cruelty, to restrain the partner from communicating with the woman through written or oral communication, preventing the partner from operating the joint bank locker and selling their joint assets 

  • Residence orders – To permit the woman to occupy the house if she has been made to leave, prevent the partner from selling any part of the house, restraining the partner from entering the part of the house where the woman lives

The Act also deals with monetary orders (maintenance, loss of earning, and medical expenses), custody orders (with respect to minor children), and compensation (for the trauma caused)

Family Courts are empowered to pass orders with respect to protection, residence, monetary relief, custody, and compensation along with other reliefs sought for under the personal laws. 

Transfer of cases 

When two people have separated and gone to different cities, or states, there is a possibility that they may file cases against the other from the city where they are currently staying. A petition to transfer cases within Tamil Nadu can be filed in the Madras High Court. A petition to transfer cases from one state to another can only be filed in the Supreme Court. 

Chethana is a lawyer practising in Chennai. She deals with cases in the family courts, trial courts, and in the Madras High Court. Her e-mail ID is advchethana@gmail.com. 

Read part one: The D word: What you need to know about divorce, a lawyer writes

Read part two: The D word: Divorce by mutual consent and other remedies, a lawyer writes

Topic tags,
Become a TNM Member for just Rs 999!
You can also support us with a one-time payment.