Automatic divorce after long separation in India

People's belief in marriage differs due to the diversity of their faiths. Due to the different religions in India, people are allowed to get married as per their laws. With the passage of time and social mindfulness, the government has passed various laws to make the present-day divorce procedure in India more transparent and compelling. 

One must understand that a divorce petition should be implied on clear reasons cited in diverse Marriage and Divorce Laws. There is nothing as 'automatic divorces.' Yet, in some cases, the marriage is said to be void-ab-initio by the wish of one of the couples. In those cases, the marriage is declared to be nullified. 

It's essential to understand the difference between negation and divorce. They are not the same even though the effect of both is equal. Negation is the separation of the partners, whereas divorce is the lawful end of a marriage.

Debunking the Myth: Divorce Automatically After 2 Years of Separation

In India, the current laws dealing with divorce are silent upon the rule of automatic divorce on the ground of parties to a marriage living separately for a continuous period of 2 years. India houses people from different communities and, hence, there are separate laws governing divorce for separate communities. To begin with, the Hindu Marriage Act, of 1955 governs Hindus; the Dissolution of Muslim Marriages Act, of 1939 governs Muslims; the Divorce Act, of 1869 governs Christians and the Special Marriage Act, of 1954 governs interfaith marriages or those individuals who prefer to marry under this secular law.

There are the following provisions providing for divorce on the grounds of the parties living separately for a fixed time period:

The Hindu Marriage Act, 1955: As per Section 13B of the Act, the parties by mutual consent can seek divorce if they have been living separately for not less than one year at the time of divorce and they are unable to live together. As per Section 13(1)(ib) of the Act, a party to a marriage can seek divorce from another on the ground that the other party has deserted the petitioner for a continuous period of 2 years immediately before the presentation of the petition for divorce.

The Dissolution of Muslim Marriages Act, 1939: The Act does not explicitly provide for desertion as a ground for divorce. However, Section 2(ii) of the Act empowers a woman married under Muslim law to obtain a decree for divorce if her husband has neglected or failed to provide for her maintenance for a period of 3 years. The Statement of Objects and Reasons of the Act provides the objects behind the enactment of this Act was to entitle a married Muslim woman to obtain a decree of divorce from a Court in case the husband makes her life miserable by deserting her. 

The Divorce Act, 1869: Section 10(1)(ix) of the Act provides that a party to a marriage can seek divorce from another on the ground that the other party has deserted the petitioner for a continuous period of at least 2 years immediately before the presentation of the petition for divorce. Further, Section 10A of the Act provides that the parties can file for divorce on the ground that they have been living separately for at least 2 years and they have been unable to live together and, hence, they have mutually agreed to dissolve the marriage. 

The Special Marriage Act, 1954: Section 27(1)(b) of the Act provides that any party to the marriage can file a petition for divorce on the ground that the other party has deserted the petitioner for a period of not less than 2 years immediately preceding the presentation of the petition for divorce. Furthermore, Section 28 provides for divorce of mutual consent when the parties are unable to live together and have been living separately for a period of one year or more and, hence, have mutually agreed to dissolve the marriage.

Therefore, a marriage has to follow all legal procedures and is not separable automatically after a certain period. Although living separately for several years, the couple may take a legal step and file for divorce in any court of law with a divorce decree. A divorce can easily be obtained based on mutual consent. If the parties agree to a divorce and fulfill the necessary conditions, then only such divorce can take place between the parties.If one party to the marriage does not give consent then the other party has to establish grounds for divorce in court, an uphill task.

In other words, a divorce in India is supposed to be more of a formal legal process, not an actual event that occurs automatically after specific periods of separation. Individuals seeking a divorce should be obliged by the laws and judicial requirements for obtaining a valid dissolution of marriage.

Divorce: 5 or More than 5 years of separation

If both spouses don't agree, they can wait for five years before filing for divorce. There is no requirement to get the other spouse's permission to file a divorce on this basis. Yet, a divorce is not automatic; one has to follow the procedure. If you get the process right, it can be relatively straightforward. The most familiar divorce pleas are on adultery or ludicrous conduct. It essentially signifies that one of the spouses must attribute the blame for the divorce of their marriage.

If you live alone for five or more years and there is a contract to divorce you and your spouse, it may be a way to end a marriage quickly whilst underestimating hate or guilt.
Though it's essential to know that even without their agreement, a divorce can be given relying on five or more years of separation:

• If the ex-spouse isn't agreeing.
• If the address of one partner is unknown, and they have proof showing they did their most to find them.

Divorce: No-fault

The government introduced the Divorce, Dissolution, and Separation Bill and planned to get into a no-fault divorce system. Yet, this is still to be passed by Parliament, and there is no sign of this occurring for the time being while the government scuffle with other international issues.

It is still likely to talk with your ex-partner about the inflexible conduct details that would have to go into the plea to keep it formal and secure.

Following this, a divorcee can happen early without delay and will understand the other crucial issues related to finance and the children's custody.

How long does the couple have to be separated to get for divorce in India?

After six months, the couple must go to court again to give a second application ensuring that you have submitted mutual consent. Only after this second application does the court issue a divorce rule. Divorce by mutual consent is given when both partners mutually select to split. 

• Section 13B of the Hindu Marriage Act of 1955 and Section 28 of the Special Marriage Act of 1954 both outline the procedure for obtaining a divorce by mutual consent. These sections stipulate that the spouses must live separately for a minimum of one year before filing for a divorce by mutual consent.
• Section 10A of the Indian Divorce Act, In India, which controls the marriage of Christians, specifies that the mates should stay alone for at least two years before filing for divorce by mutual separation.

A woman has the right to file for divorce if she is married before the age of fifteen and leaves the marriage before the age of maturity, that is, eighteen years. If the partner has kids, then the question of Child custody relies on care, which means the welfare of the child. If divorce happens in a social context, the custody of a child can be done as a mutual agreement by both.

Yet, the court will look into another essential factor to give the child custody in a disputed divorce. In most cases, mothers have strong custody fights, but it is on the court to check what is best for the child. (In disputed divorce). In some cases, custody is given to mothers, and fathers are obliged to provide financial help.

You might be interested in: Child Custody in India : Types, Laws governing child custody

The couple must not live together at the time of marriage. If one among the mate engages themself in bigamy, the relationship becomes voided automatically without any courtesy. 

The legal separation of a couple begins with a plea given by the Court. The couple is said to be married during a legal break but has to live apart and is not allowed to remarry during that time. The couple can file for divorce If the reason is cruelty or adultery for two years without a valid reason.

According to the Indian Divorce Act of 1869, the judgment must be considered a divorce. The application for lawful separation must be offered to the Court. Most women in India are said to depend on their husbands to live their life, most probably in rural areas. Thus, here the question comes related to the rights of the woman being separated or divorced. And this question becomes very important when she is a mother and needs financial support for her child. 

In the case of a friendly divorce, the answer to this question can be: Yet, if one has the documentation that we can give you and you can file it yourself without an attorney, the cost for that will be meager. One will not have any issues while raising your case and will save money. It is a decision in which the Court creates a time of six months, referred to as cooling-off time.

The Court carried that the cooling-off rule is a manual condition and may be revoked in some cases. The couple lived apart for eight years and then chose to file a case of divorce by mutual agreement. The couple claimed the release of the law of the cooling-off time as per the Act Article 13B(2), as they had lived apart for the previous eight years, and both of them don't wish to be together. Furthermore, the Court states that the courts are free to exert their control if they avoid this condition, relying on their case facts. 

A Christian couple is allowed to file a divorce case by mutual agreement. To take a friendly divorce, the partners must live apart for a minimum of two years. They should also verify that they didn't live as a couple in the same household.

Final thoughts

• The prime point we understood is that there is nothing like Automatic Divorce.
• Yet, there is a concept of Void and Voidable weddings.
• The couple must file for divorce from the marriage.
• From the beginning, void marriages aren't considered legal, resulting in the eventual split as the Law doesn't back them. 
• The Court can immediately cancel voidable Marriages after the filing of a case by any one spouse. 
• We have discussed some conditions where divorce is done naturally by filing a plea.

Dealing with the situation can be challenging to stay calm and consider the implications, such as who keeps the house. It can be confusing as this depends on numerous issues, including child needs and the financial history of the marriage.

At Rest the Case, we have a team of experienced divorce lawyers who support you throughout the process.. We will listen to your concerns, guide you about your home and children, sort out your finances, and guide you toward your rights as an ex-partner.

You can drop us a mail at [email protected]. Or call us at +919284293610

FAQ

What is meant by the term 'Separation'?

When the couples aren't staying in the same house, they are said to live separately. Yet, in some instances, if they live in the same place, it doesn't stop them from living separate lives. For this, you must:

• Not cook and eat.
• Not sleep together or share a room.
• Doesn't take out household duties for each other.
• Doesn't watch shows or movies together.

One among the couple should think the marriage is ending and doesn't want to live with each other again. It doesn't need to be shared with the other spouse and will alone be relied upon, which can be set by their conduct. 

How can the couple show the separation of two years?

If anyone wants a divorce, they must prove that marriage is breaking down due to one of the five bases: two years’ separation with consent.  

To prove that the separation of two years, you must show that:

• Both spouses must live apart for at least two years before filing the divorce case.
• The consent of the respondent for giving the divorce.
  

References:

https://indiankanoon.org/doc/37740179/

https://restthecase.com/knowledge-bank/hindu-marriage-act-of-1955

https://restthecase.com/knowledge-bank/who-gets-the-child-s-custody-after-divorce

About the Author

Adv.Akhilesh Kamle is an accomplished advocate and solicitor, currently serving as General Counsel for Litigation at Quest Legum LLP. With over 5 years of experience in this role, he specializes in commercial litigation, regulatory compliance, and advisory services for both domestic and international clients. Akhilesh's legal expertise spans various fields, including real estate, civil laws, labor laws, insolvency and bankruptcy laws, banking and insurance laws, infrastructure and tenders laws, and criminal law focusing on white-collar crime.

His educational background includes an LLB (Hons) from Campus Law Centre, University of Delhi, and a B.E. in Electrical Engineering from Nagpur University. Throughout his career, he has represented prominent clients. Akhilesh has also been actively involved in litigation at the Supreme Court of India, High Courts, NCLT, and other judicial forums, and is known for his problem-solving, time management, and leadership skills.