What Are the Legal Grounds for Getting a Divorce?
Answer:
In India, the grounds for divorce differ slightly based on religion, but under the Hindu Marriage Act, 1955, the common legal grounds include:
- Adultery (spouse has a sexual relationship outside marriage)
- Cruelty (physical or mental harassment)
- Desertion (spouse has left without reason for 2+ years)
- Conversion to another religion
- Mental disorder or unsoundness of mind
- Communicable disease (like leprosy or HIV)
- Renunciation of the world (becoming a sanyasi)
- Not heard alive for 7+ years
What Is the Procedure for Mutual Consent Divorce?
Answer:
Mutual Consent Divorce is the fastest and simplest way if both husband and wife agree to end the marriage. Here’s how it works under Section 13B of the Hindu Marriage Act:
- Both parties file a joint petition stating they’ve been living separately for at least 1 year and cannot live together.
- They must appear in family court and give statements.
- The court gives 6 months cooling-off period to reconsider (can be waived by court).
- After this period, they appear again for final hearing.
- If still willing, the court grants a divorce decree.
- This process usually takes 6-18 months if both parties cooperate.
What Happens to Children After Divorce?
Answer:
- Child custody is decided in the best interest of the child, not based solely on parent gender.
- Custody can be joint, sole, or visitation rights.
- Normally, mothers get custody of young children, but fathers can get visitation or even custody if proven better for the child.
- The court considers child’s age, education, emotional needs, and financial stability of parents.
- Under the Guardians and Wards Act, 1890, the family court has full discretion to decide custody and visitation.
What Is the Wife Entitled to After Divorce?
Answer:
After divorce, the wife has rights to:
1. Maintenance/Alimony – A monthly or lump-sum amount ordered by court under Section 125 CrPC or Hindu Marriage Act.
2. Streelhan & Dowry Articles – She has a legal right to claim return of her jewelry, gifts, and valuables.
3. Child Support – If she has custody, the husband must contribute to child’s education, health, etc.
4. Right to Residence – She can seek a residence order under the Domestic Violence Act, 2005, if needed.
The court decides alimony based on husband’s income, lifestyle, and wife’s financial condition.
What is Contested Divorce and How Is It Filed?
Answer:
A contested divorce is filed when one spouse wants a divorce but the other does not agree. It is filed under Section 13 of the Hindu Marriage Act. The process includes:
- Filing a divorce petition with legal grounds like cruelty, adultery, desertion, etc.
- Serving a legal notice to the other party
- Attending court hearings, evidence presentation, and cross-examinations
- Judge decides based on facts and law
- Contested divorce usually takes 2 to 5 years, depending on the complexity and cooperation of both parties.
What If My Spouse Is an NRI or Lives Abroad?
Answer:
- If your spouse is an NRI (Non-Resident Indian) or lives abroad:
- You can file divorce in Indian courts if marriage was solemnized in India or one spouse resides here.
- Indian courts can issue summons via email, WhatsApp, or through Indian Embassy.
- If the spouse doesn’t appear, the court can proceed ex parte (one-sided judgment).
- Divorce obtained in a foreign court is valid in India only if it follows principles of natural justice and is not against Indian law.
- Legal help is essential to handle cross-border divorce cases.
What to Do If False 498A (Dowry) or Domestic Violence Case Is Filed?
Answer:
- If a false complaint under Section 498A IPC or Domestic Violence Act is filed:
- Collect all evidence like audio, video, chats, or documents proving your innocence.
- You can apply for anticipatory bail to avoid arrest.
- File a petition to quash FIR under Section 482 CrPC in High Court.
- Court may order mediation, investigation, or dismiss baseless cases.
- Misuse of 498A is punishable and courts have become more cautious now. You must act legally and promptly.
Can One Marry Again After Divorce?
Answer:
Yes, One can remarry only after the final divorce decree is granted by the court.
In mutual divorce, one has to wait till the cooling-off period and final order is passed.
In contested divorce, one has to wait till the appeal period (90 days) is over.
Remarrying before divorce is finalized is illegal and considered bigamy under Section 494 IPC, which is a criminal offence.
Always obtain a certified copy of the divorce decree before entering a new marriage.
Can a Wife Get Divorce During Pregnancy?
Answer:
Yes, a woman can file for divorce during pregnancy under Indian law. The pregnancy does not stop her legal right to seek divorce.
Grounds like cruelty, desertion, or other valid reasons can be used.
The court will consider the wellbeing of both the mother and unborn child.
If the divorce is granted, the husband remains responsible for child support after birth.
The wife can also claim maintenance and medical expenses during and after pregnancy under Section 125 CrPC and the Domestic Violence Act.
Can a Husband Claim Maintenance From Wife?
Answer:
Yes, under Section 24 of the Hindu Marriage Act, a husband can claim maintenance (interim or permanent) if:
- He has no sufficient income
- The wife earns more than him
- He is unable to sustain himself due to illness, job loss, or disability
Courts examine facts and award maintenance if the claim is genuine. Gender is not a bar to seek maintenance in matrimonial disputes.
What Is the Procedure for Interfaith or Inter-Caste Divorce?
Answer:
Interfaith or inter-caste marriages registered under the Special Marriage Act, 1954 follow the same divorce process under this Act:
The couple can seek mutual consent divorce under Section 28
Or file a contested divorce on grounds like cruelty, adultery, etc.
The law is neutral to religion or caste. But if the marriage was solemnized under personal laws (like Hindu, Muslim), then respective laws will apply.
Can Divorce Be Taken Without Going to Court?
Answer:
No, divorce in India is only legal when granted by a family court through a divorce decree.
Out-of-court agreements or community panchayat decisions are not legally valid.
Even in mutual divorce, both parties must appear before the court at least twice.
Online divorce without court procedure is not legally recognized in India.
However, mediation or settlement before court proceedings can help speed up the process and reduce conflict.