Easing separation sorrows
Since the process of divorce is emotionally and economically draining in India, easing of provisions, along with mediation and counselling, should take the centre stage
Divorce is a legal process of dissolving a marriage between two individuals. It is indeed a very challenging and emotional process for anyone involved, with significant costs and time. Healthy communication skills and counselling can often resolve even the worst of relationships.
Grounds for divorce in India under the Hindu Marriage Act, 1955, include: indulging in sexual intercourse outside marriage with a person other than the spouse; cruelty – a spouse can file a divorce case when subjected to any kind of mental or physical cruelty; desertion – if one of the spouses voluntarily abandons their partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion; ceasing to be a Hindu by converting to another religion; mental disorder – having an incurable unsound mind, or continuously or intermittently suffering from a mental disorder of such a kind and to such an extent that one party cannot reasonably be expected to live with the other; venereal disease (such as a communicable infection transmitted by sexual activity) – if one of the spouses is suffering from such a serious disease, divorce can be filed by the other; renunciation – a spouse is entitled to file for divorce if the other renounces all worldly affairs; not heard alive – if a person is not seen or heard alive by those who are expected to 'naturally hear' of the person for a continuous period of seven years, the person is presumed to be dead; no resumption of co-habitation – there has been no resumption of cohabitation between the parties to the marriage for a period of one year or more after the passing of a decree for judicial separation in a proceeding to which they were parties or restitution of conjugal right for a period of one year or more pursuant to such a decree.
The following are the grounds for divorce in India on which a petition can be filed only by the wife: If the husband has indulged in rape, bestiality, and sodomy; if the marriage is solemnised before the Hindu Marriage Act and the husband has again married another woman despite the first wife being alive; a girl is entitled to file for divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age; a decree or order, as the case may be, has been passed as per prescribed provisions, against the husband awarding maintenance to the wife notwithstanding that she was living apart, and since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or more.
The Supreme Court has held in certain decisions that it may exercise its discretion under the inherent powers under Article 142 of the Constitution of India for dissolving a marriage on the ground of 'irretrievable breakdown of marriage', if need be. The Apex Court has clarified that the exercise of power is, inter alia, with absolute caution.
The divorce can be either contested or uncontested, depending on whether the parties agree on the terms of divorce/settlement or not. Pursuant to mediation talks, the procedure of fully contested divorce is divided into various stages. It is quite a time-consuming exercise. Apart from being emotionally draining, a divorce case can be very hard on the pocket as well, especially when a person has to pay not only interim maintenance but also a significant alimony. Often, even the location/jurisdiction of the court where the case is to be fought takes some time to get decided. Leaving aside interim maintenance and alimony, even overall legal expenses takes a toll on the pocket.
Lawmaking bodies are pondering upon easing provisions for such complex matters. The best way to resolve is by way of mediation, settlement, mutual consent. Mediation, in the last couple of years, has developed a lot in India. The time frame for obtaining a divorce in India varies depending on the complexity of the matter, apart from other circumstances of the case. Many times appropriate counselling has the potential to save a relationship and is strongly recommended.
The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal
