Dissolution of Marriage in India

Law
19-Apr-2023
blog-img

While the decision to pursue the dissolution of marriage can be difficult and emotional, it can also be an empowering step towards a brighter future. 

With the help of an experienced lawyer and a clear understanding of the legal requirements and implications of the process, you can navigate the dissolution process and work towards a resolution that meets your needs.

Through this article, we'll explore everything you need to know about the dissolution of the marriage process, from the legal framework and procedures to the issues related to property division, child custody, and support. So, let's dive in and learn how you can lead toward a better life by dissolving your marriage.

Definition of Dissolution of Marriage

The concept of dissolution of marriage has evolved as a way to streamline the divorce process, eliminate the need for accusations and counter-accusations, and reduce the associated expenses. 

Unlike traditional divorce proceedings, where one party must allege fault on the part of the other under one of the statutory grounds, dissolution of marriage is based on no-fault grounds. 

This means that neither party is required to accuse the other of wrongdoing or fault, and instead, the couple can work together to reach an agreement on the terms of their separation, such as child custody,  property division, etc.  

The goal of dissolution of marriage is to provide a less adversarial and more amicable process for ending a marriage, ultimately making the process easier, faster, and less expensive for both parties involved.

Difference Between Divorce and Dissolution

Divorce and dissolution are similar in that they both legally end a marriage and require the parties to reach agreements on terms such as property division, child custody, visitation, spousal support, and attorney fees. However, there are a few differences between dissolution and divorce.

Divorce requires one party to allege fault on the part of the other spouse as the grounds for the divorce, while dissolution does not require any fault grounds. This means that a dissolution of marriage can be thought of as a no-fault divorce.

In addition, if the parties are unable to agree on the terms of their separation agreement, divorce is the only option as it involves court intervention to resolve disputes. 

In contrast, a dissolution is only an option when both parties are in agreement on all terms of the separation, and it can be a more streamlined and less expensive process than a divorce.

Ultimately, whether a couple chooses to divorce or dissolve will depend on their circumstances and the nature of their relationship.

Laws Related to Dissolution of Marriage

Hindu Marriage Act, 1955

This act of 1955 is one of the primary legal frameworks for marriage and divorce among Hindus in India. One of the significant amendments to this act was the addition of Section 13B in 1976, which provided the basis for divorce by mutual consent.

According to Section 13B (1) of the act, both parties seeking a divorce must jointly present a petition to the court. Similarly, Section 13B (2) requires both parties to appear before the court for the hearing.

It's noteworthy that a divorce petition filed under Section 13 of the Hindu Marriage Act may be converted into a plea for divorce by mutual consent, as permitted under Section 13B. 

Even at the appellate level, the court may allow the divorcing parties to amend a petition for relief under Section 13B or any other section to be turned into a petition for divorce by mutual consent.

There have been several cases in which petitions have been converted, such as Padmini v. Hemant Singh (1993) and Dhiraj Kumar v. State of Punjab (2018). 

Overall, these amendments to the Hindu Marriage Act of 1955 have helped make the process of dissolution of marriage more streamlined and accessible to couples seeking a mutual and amicable end to their marriage.

Know more: Hindu Marriage Act Of 1955

Muslim Marriage Act, 1939

Divorce under Muslim Law offers two types of divorce by mutual consent: Judicial Process Divorce and Extra-Judicial Process Divorce.

a. Judicial Process: Section 2 of the Dissolution of Marriage Act 1939 specifies the legal grounds for Muslim women to obtain a divorce in India. These grounds include:

  • The husband has been missing for four years, and the wife does not know his whereabouts.
  • The husband has been imprisoned for at least 7 years.
  • The husband was impotent during marriage time.
  • The husband has been declared unsound for at least two years.
  • The husband has been cruel to his wife.
  • The husband has not been able to fulfill his marital obligations for at least three years without any reason.
  • The husband is suffering from a venereal disease.

These grounds provide Muslim women with options for seeking a divorce and ending their marriages when they face difficulties in their relationships. It's important to seek legal advice and understand the specific legal requirements and procedures that apply to divorce under Muslim Law in India.

b. Extra-Judicial Process: This process has two types to take mutual consent divorce:

Khula: It involves the wife agreeing to consider her husband as a redemption of the contract of marriage. This is considered a mutual divorce, and the observance of iddat is necessary. 

The iddat is a period of waiting during which the wife remains in the custody of the husband to ensure that she is not pregnant. Once the iddat is complete, the divorce is final.

Mubarat: It is a mutual divorce where both spouses do not wish to continue their marriage. Either spouse can make a proposal of divorce, and if the other party accepts the proposal, the divorce becomes irrevocable, and the marriage comes to an end. The observance of iddat is also necessary for this type of divorce.

Overall, both Khula and Mubarat offer ways for couples to end their marriage amicably through mutual agreement. However, it's important to seek legal advice and understand the legal implications of the different types of divorce under Muslim Law.

Christan Marriage Act, 1869

Under Section 10A of the Indian Divorce Act of 1869, Christian individuals seeking a divorce in India have two ways to do so. These are:

a. Mutual Divorce: If both spouses agree that they cannot live together happily and have been living apart for at least two years, they can file a petition for divorce before the District Court.

b. Contested Divorce: A contested divorce can be filed by either spouse on specific grounds. These include unsoundness of mind for a continuous period of not less than two years, adultery, either spouse has ceased to be Christian, desertion for at least two years, willful refusal to consummate the marriage, cruelty, husband being guilty of rape or sodomy, any spouse not heard of alive for seven years or more, and suffering from incurable leprosy for at least two years.

Grounds for Dissolution of Marriage

In India, the grounds for dissolution of marriage may vary depending on the jurisdiction and religion. Some common grounds for dissolution of marriage under the Hindu Marriage Act include:

1. Adultery

Even though it has been decriminalized under Indian Penal Code, it is still a valid ground for divorce. It occurs when one spouse voluntarily engages in sexual contact with another person after marriage. Explore Adultery laws in India

2. Desertion

Desertion is a legal term used to describe a situation where one spouse leaves the other without any reasonable cause or explanation and remains absent for a continuous period of two years or more.

Know More: Desertion As A Ground For Divorce

3. Cruelty

Cruelty includes physical and mental abuse. It is defined as any conduct by one spouse that makes it unbearable for the other to continue the marriage. To prove cruelty, the petitioner must provide evidence such as medical records, police reports, or witness testimony. If the court finds cruelty has taken place, it may grant a decree of divorce.

Learn More: Cruelty As A Ground for Divorce in India

4. Insanity

If one spouse is suffering from an incurable form of insanity for at least two years or more, the other spouse can file for divorce. In such cases, the law considers the affected spouse as mentally incapable of continuing the marriage, and the healthy spouse may seek divorce on the ground of insanity.

5. Leprosy

If one spouse is suffering from leprosy for two years or more, and the disease is in a communicable form, then the other spouse can seek divorce on the grounds of leprosy. The Hindu Marriage Act does not specify any particular duration of the disease, but it does require that the disease be incurable and communicable.

6. Venereal diseases

Venereal disease is considered a valid ground for divorce in India. It is immaterial whether the disease is curable or contracted innocently.

7. Conversion to a non-Hindu religion

If one spouse who was a Hindu at the time of marriage, converts to another religion, it can be considered a valid ground for divorce in India. This is provided under the Hindu Marriage Act 1955. The conversion of religion can be a voluntary act or can be due to any other reason.

8. Renunciation of the world

If one spouse enters a religious order and abandons the family, it can be considered a valid ground for divorce.

It's important to note that the grounds for dissolution of marriage may vary depending on the jurisdiction and religion. It's advisable to seek legal advice from a qualified professional to understand the specific grounds for dissolution of marriage that apply in your situation.

Procedure for Dissolution of Marriage

The procedure for dissolution of marriage may vary depending on the jurisdiction, but the general steps involved in the process include:

1. Consultation with a lawyer: Before beginning the dissolution process, it is important to consult with an attorney to understand the legal requirements and implications of the process.

2. Filing the petition: The petitioner must file a petition for dissolution of marriage in the appropriate court, which usually includes information about the grounds for dissolution and other relevant details.

3. Serving the petition: The petitioner must serve the other party with a copy of the petition and a summons, which notifies them of the pending dissolution proceeding and their right to respond.

4. Negotiation and agreement: The parties may negotiate and reach an agreement on issues such as property division, child custody, and support. If an agreement is reached, it is put in writing and submitted to the court for approval.

5. Court hearings: If the parties cannot reach an agreement or if the court requires additional information or clarification, court hearings may be scheduled to resolve any outstanding issues.

6. Final judgment: Once all issues are resolved, the court will issue a final judgment of dissolution, which formally ends the marriage and includes details about property division, custody, etc.

Again, the specific procedures and requirements for dissolution of marriage may vary depending on the jurisdiction, so it is important to consult with a qualified attorney in your area to ensure that you understand the process and comply with all necessary legal requirements.

Petition for Dissolution of Marriage

A petition for dissolution of marriage is a legal document filed in court by one spouse to initiate the process of ending a marriage. It typically includes information about the parties involved, such as their names, addresses, and date of marriage. 

The petition will also outline the grounds for dissolution of the marriage, which may vary depending on the jurisdiction and religion.

In addition to the grounds for dissolution, the petition will usually include a request for relief, which may include issues such as property division, child custody, visitation, and support. The petitioner may also request temporary orders, such as temporary custody or support, while the dissolution process is ongoing.

Once the petition is filed, it must be legally served on the other spouse (in some jurisdictions, the order is reversed, and the petition is served before it is filed). The other spouse then has a chance to answer and state their agreement or disagreement with the petition.

FAQs

Can a dissolution of marriage be finalized without going to court?

Yes, a dissolution of marriage can be finalized without going to court if the parties come to an agreement on all issues related to the dissolution and submit the agreement to the court for approval. However, the requirements for finalizing a dissolution of marriage without going to court can vary by state and local laws.

Can a person represent themselves in a dissolution of marriage case, or do they need an attorney?

Yes, a person can represent themselves in a dissolution of marriage case, but it is always advisable to hire an attorney. An attorney can provide legal advice, help with paperwork, and represent the person in court if necessary. Dissolution of marriage cases can involve complex legal issues, and having an experienced attorney can ensure that the person's rights and interests are protected.


Author Bio: Adv. Sateesh B.V. is a talented legal professional with a diverse educational background, including an L.L.B from V.R. Law College, Nellore, and a PG Diploma in Banking Operations from I F B I, Bangalore. His extensive work experience spans roles such as legal officer at Sun Solar Energy, and assistant manager at Ecoedifice Realtors Private Limited, focusing on land acquisition and legal documentation. With a commitment to continuous learning evidenced by specialized courses, Sateesh brings a unique blend of legal expertise and corporate understanding to his practice.