In this three-part series, lawyer Chethana V writes on the legal process involved in divorce, and to prepare readers for what lies in store.

A man and a woman stand back to back in black and white image
news Law Tuesday, July 27, 2021 - 13:12

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. 

It is almost never spoken about, but when it is, it is always referred to in hushed tones. People cannot understand it, they hope that it is a phase that will go away, and everything will go back to “normal” as soon as possible. This could refer to both growing a goatee, and divorce in India. We are going to talk about only one of these two things today, and maybe come back to the goatee discussion later. 

Divorce seems like a terrifying prospect. More so in India, where marriages are celebrated with such festivity that the thought of exiting this union where so many people are involved seems next to impossible. People stay in unhappy marriages just to avoid dealing with family members who tend to do anything it takes to make the couple stay together. However, at the end of the day, divorce is a deeply personal choice.  Dissolving a marriage is always at odds with what society expects from two individuals. It is an institution that has been glorified to such an extent, that the process of a legal exit from it has been vilified. 

The Vijay Sethupathi-starrer Oh My Kadavule ruined the reputation of divorce lawyers for as long as the film remained in public memory. The crowd cheered as the couple exited the Family Court complex– a large, airy, clean red building with sparkling bricks and ample space for everybody to sit, not just stand - as husband and wife

The aim of this series is to take the reader through the legal process involved in the same, to prepare them for what lies in store. Just to set something straight - judges in India do not use a gavel to silence the court. The court clerks do, however, request you to place your phones on silent when a ringtone from the movie Sillunu Oru Kadhal pierces across the courtroom.

Applicable Law 

Matrimonial laws depend on religion, and how the marriage was solemnised. If the marriage took place according to Hindu rites and rituals, the divorce will be governed by the Hindu Marriage Act. In a Christian marriage, the divorce will be governed by the Indian Divorce Act. For inter-faith couples whose marriage has been registered under the Special Marriage Act, the divorce will be governed by the Special Marriage Act. As Muslim personal law is not codified, the legal formalities involved will be different when compared to other religions. These laws will be commonly referred to as “personal laws”, unless otherwise specified. 

In Tamil Nadu, the requirements of a “Hindu Marriage” which include rituals, and the saptapadi (seven steps around a fire) are not required, owing to a State Amendment. Suyamariyadhai Thirumanam (Self-Respect Marriages) only require the bride and the groom to tie the thaali, or exchange garlands, or rings, or declare each other to be their spouses, in the presence of witnesses. This was also showcased beautifully in the recent movie Sarpatta Parambarai, when the marriage between Kabilan and Mariamma is complete when Kabilan ties the thaali. 

 

Image courtesy: Screengrab from Sarpatta Parambarai

Personal laws are also binary and gendered, and not queer-friendly. The marriage between a transwoman and a cis-man has also been upheld as a valid Hindu Marriage by the Madras High Court, as the transwoman identifies as a woman and will fall under the definition of a “bride” under the Hindu Marriage Act. A petition to include same-sex marriages under the ambit of the Special Marriage Act is pending in the Delhi High Court. The fight for marriage equality is an ongoing one, and at the time of writing this article, marriage between two people of the same gender has not been recognised as valid by the legislature, or the courts. 

Are there different kinds of divorces? 

Divorce refers to the dissolution of marriage. There are different grounds or provisions under law, through which you can secure a divorce. 

Divorce and annulment are different concepts – the effect of an annulment is that the parties were never really married.  

Divorce and judicial separation are also different concepts – when a party approaches the court for judicial separation, the marriage between them will not be dissolved, and they will just be living separately. Judicial separation can lead to a divorce, but during this period of judicial separation, the parties will remain married. 

Divorce by mutual consent is when both the parties agree to the divorce and approach the court together, seeking to dissolve their marriage. The terms and conditions of the divorce are usually worked out between the parties prior to filing the petition. One party cannot approach the court, asking for a mutual consent divorce. As the name goes, both of them are required to come and file the petition in court. 

A contested divorce is when one party wants to proceed with the divorce against the other person. The broad grounds for filing for divorce are - adultery, cruelty, desertion, conversion to another religion, and unsoundness of mind. These vary slightly between personal laws. 

Do you have to go to court?

In order to secure a divorce, the person will have to go to court. A person cannot get divorced by agreeing to certain terms and conditions on stamp paper and signing it, however official that paper looks. Somebody else cannot get this divorce “legalised” even if they sign a petition without going to court. Orally agreeing to separate or sending an email or notice to this effect does not qualify as a divorce. 

The court will also not have exposed brick walls, air-conditioned rooms, large windows and streaming sunlight. It will also be helpful if your phone is already on silent mode. 

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.

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