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

A man and woman stand apart looking into the distance, a black and white photo
news Law Wednesday, July 28, 2021 - 15:07

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. 

I was waiting for a case to be called out in court one day, when I heard a commotion outside. A couple was yelling at each other in Hindi. The wife, however, took the time to first say what she wanted to her spouse in Hindi, and then translated it to Tamil for the rest of the curious spectators. We were deeply appreciative of her commitment to make this argument accessible to us, and I would recommend her for the next budget session live telecast, if only I had her contact information. On another occasion, I was also requested to briefly translate a few things in Hindi to a woman in a mutual consent divorce proceeding. As I was speaking, her facial expression seemed to suggest that her impending divorce was not the worst thing on earth anymore, with my Hindi effortlessly occupying the first place. 

In addition to being an institution that encourages linguistic tolerance, Family Courts also provide different remedies for matrimonial disputes according to personal laws, and it is upto the people involved in it to choose what will best suit their circumstances. In the first part, we spoke briefly about mutual consent divorce, and the other remedies available to a person. We will be examining that in detail now. 

Divorce by mutual consent 

If you and your partner have decided that the marriage is not working, and wish to amicably part ways, you can file a petition for divorce by mutual consent. Both the individuals involved need to consent to this, and the petition is filed together. However, this cannot be filed instantly after the marriage.

Under the Hindu Marriage Act and the Special Marriage Act, the parties need to live separately for at least one year before filing the mutual consent petition. Under the Indian Divorce Act (Christian marriages), the parties need to live separately for at least two years before filing the mutual consent petition. 

The parties need to come to court twice – first to file the petition, and then six months after the filing of the petition to record their evidence. This six-month period is known as the “cooling off period”, for the parties to re-consider and think about their decision to separate. 

In 2017, the Supreme Court held that if parties have already been separated for over one-and-a-half years (two-and-a-half years for Christian marriages), and do not wish to wait for six months, they may be permitted to waive this six month waiting period after fulfilling certain formalities. 

Contested divorce 

An individual can proceed against their spouse through a contested divorce proceeding as well. The broad grounds that are available under law are - adultery, cruelty, desertion, conversion to another religion, and unsoundness of mind. There is no requirement to wait for a period of one year like in mutual consent divorces to file a petition for divorce under these grounds. The only ground which has a time-limit attached to it is desertion. 

India does not have the concept of a “no-fault” divorce, so the reason for seeking divorce needs to fall under one of the above categories, and just the reason for irretrievable breakdown of marriage is not sufficient to file a petition seeking divorce. So if only one person wants to file for divorce, it will be under one of the following grounds.

Adultery is no longer a criminal offence, after the Supreme Court’s 2018 judgement – Joseph Shine versus Union of India.  It is, however, a ground under personal law to file for divorce. 

Cruelty involves physical, mental, and emotional cruelty. It is not required that you have to be in a physically abusive relationship to invoke this provision, and it encompasses other habits and conduct that can amount to cruelty in a marriage. 

If a spouse has wilfully abandoned their partner for more than two years, desertion is a ground for divorce. 

Another ground is when the spouse is incurably of unsound mind, or has a mental illness to the extent that it is not reasonably possible to live with them. India’s matrimonial laws were drafted many years ago, without any reverence or regard for mental health issues and the important place that it occupies in the world today. However, interpretation of these clauses does not mean that anybody with mental health issues will fall under this category, the threshold to prove this is high. 

Other grounds include conversion to another religion, renunciation of the world, when the spouse is missing, and not been heard of alive for seven years. There are variations across the different matrimonial laws to the exact specifics of each ground. 

Judicial separation 

Judicial separation is an option if you want to separate from your partner, but you are not sure if divorce is the solution for you and want to continue to remain married until you make up your mind. 

The grounds for judicial separation are the same as a contested divorce, and there is no time-limit to move the court after the marriage seeking judicial separation. 

Annulment 

There are certain requirements for a valid marriage. When these are missing, it will go to the very root of a marriage and invalidate it. 

If a person who is already married gets married once again while their first marriage still exists and the spouse is still alive, the second marriage is void.

The law also has “prohibited degrees of relationships”, according to personal laws, and any marriage within these degrees is void. 

In addition to these, there are certain conditions, which if the married individual wants to act on, can be grounds for annulment. If the marriage was not consummated, or if the consent of one person for the marriage was obtained by fraud or coercion, that person can move for annulment. The exact requirements for this varies slightly between different matrimonial laws.

Restitution of conjugal rights

This legal provision is a gift from the times of British colonial rule which we have not been able to slyly re-gift or exchange. This is different from divorce, judicial separation, or annulment as it involves asking the courts for a reunion. In case the individual has left the matrimonial home, but the spouse believes that the marriage can still be salvaged, they can approach the courts for restitution of conjugal rights, which is something exactly as it sounds – for the court to ask the spouse to return and live with them. The courts will examine whether there has been any reasonable cause because of which the person has left the matrimonial home. In the event the courts also find in favour of the spouse who has filed the case, the court can pass an order asking the estranged person to go live with them.

If the person still refuses to live with their partner even after the order of restitution, the spouse can use that as a ground to file for divorce or judicial separation. 

This is a frequently criticised provision, as it goes against a person’s agency, privacy and choice. A legal challenge to this archaic concept is pending in the Supreme Court of India. However, for now, it continues to be a legal remedy and petitions seeking restitution of conjugal rights can be filed. 

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 1: The D word: What you need to know about divorce, a lawyer writes

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