10 Things to know about Divorce in India

10 Things to know about Divorce in India

1.      Divorce proceedings in India are very complicated and it is very tough to go through the proceedings for both men and women as it is a long time process especially in the contested divorce cases.

2.      First of all, lawyer plays a key role for the success in the divorce proceedings and hence you need to select an experienced lawyer particularly in this subject dealt with more specific issues in the divorce laws.  Initially, he may try to settle the matter amicably between the parties and to continue their marital life together for welfare of children and family.

3.       Divorce can be of two forms, contested divorce and mutual consent divorce.

4.   Divorce by mutual consent can be obtained only if both parties agree to end their matrimonial relationship.  You may get divorce within one year from date of filing of the case.

5.       In contrast, divorce in contested case, i.e. if your spouse opposes for giving divorce, and gets ready to contest the case filed by you, you need to establish the grounds sought in your petition seeking divorce.  Court should get satisfy the grounds you sought and upon scrutinizing the evidence and the statements submitted by both parties, may grant divorce considering various factors like child custody, maintenance and property issues along with the main relief of divorce.  Court if not satisfied with the grounds and facts you mentioned in the Petition, can reject the Petition for divorce. Joint properties would be divided accordingly to both parties.  In these cases, it may take at least 3-4 years to get the decree of divorce.

6.     Grounds available for seeking divorce are Adultery, Cruelty, Desertion, Conversion of religion, Insanity, leprosy, communicable disease, Renunciation of world for religious purpose, and not heard alive for seven years.

7.       The court may grant ex-parte decree of divorce if other spouse not appeared before court even upon the effective service of summons intimating the case filed by the Petitioner seeking divorce. However, such decree can be set aside by the other spouse if he/she wants to contest the case and such Petition should be filed within 90 days from the date of decree or from the date of receipt of the decree.

8.     Court may also grant interim maintenance to the Respondent wife during the divorce proceedings or at the end of the proceedings may grant a lump sum amount in the name of Alimony usually to wife and children to be paid by the Husband Petitioner.

9.       Maintenance can also be obtained by wife under Section 125 Criminal Procedure Code parallel to the divorce proceedings.  Award of maintenance would be based on following factors such as financial status of both parties, dependents, movable properties of husband

10.  Child custody the most crucial aspect, courts look into the financial positions of both parties, however, minor children especially below the age of 5, are always given custody to mother and older children aged above 9 years are given custody to the parents based on the financial conditions and their parenting skills. Courts always give much importance to the welfare of child while taking decisions of child custody.  Visitation rights are available for the parent who is denied of the child custody.

What is the process involved in getting a divorce from start to finish?

11. The first condition for obtaining divorce is that the couple had lived separately for at least one year, abstained from performing matrimonial obligations and wanted to dissolve their marriage legally.
12. If the application for divorce is by mutual consent, consent of both parties to marriage is required. It is always advisable that the couple should come to the conclusion on the custody of child if they had, return of properties prior to the divorce proceedings in mutual consent cases.
13. Party should give Vakalatnama to his/her Advocate whom he/she appointing as his/her lawyer to proceed the divorce proceedings in the family court.
14. If it is a contested case, the grounds for divorce under Hindu Marriage Act could be cruelty, adultery, desertion, mental disorder, renunciation, communicable disease, conversion of religion, and inability to cohabit, not heard for seven years (for Muslims it is 4 years).  Additional grounds for filing petition include, husband living with wife of his previous marriage held prior to enactment of Hindu Marriage Act, if husband found guilty of rape, or anal intercourse or sexual acts with animals, if the wife awarded with maintenance under Hindu Adoption and Maintenance Act, 1956 or under section 125 of the Code of Criminal Procedure, 1975, and despite this if conjugal relationship between parties failed to resume within one year from the date of order of maintenance, or if wife got married before 15 years of her age and rejected marriage not below 18 years. Applicant should prove the grounds quoted in the Petition for grant of decree of divorce.
15. Application to be filed before Court along with proof of marriage, income papers, and property documents if required.
16. After filing of the application, court may fix the hearing after six months from the date of application as court thinks that issues between parties could get solved amicably during that 6 months period. Application becomes void on that instance if the parties to Application not appeared before court after the six months period.  Also, parties are allowed to withdraw the application within six months period.
17. Notice will be ordered to the other party (spouse) in the contested divorce cases upon filing the Petition.
18. Counseling may be ordered by Court initially in an effort to bring the parties together for the welfare of the family.
19. In contested cases, interim Maintenance, i.e., provision of financial assistance may be ordered by the court if required, during the proceedings or even before the divorce proceedings if the application is filed by the wife depending upon the income status of husband and wife. Court may reject the Petition for divorce if grounds for divorce not proved by the Petitioner with substantial evidence.
20. In mutual consent cases, alimony a fixed amount will be decided by the parties, whereas in the contested cases, it is fixed by the court on the circumstances of each party. After hearing the parties if the court satisfied the terms of mutual consent agreed between parties in the aspects of child custody, return of properties, alimony etc., court grants mutual divorce decree to the parties.
21. Procedure for obtaining divorce is almost the same under the all religious marriage Acts (personal laws) with slight variations.

       See Related FAQs:

ü  What is the process involved in getting a divorce from start to finish?

ü  How can I divorce my wife if she don’t agree with divorce by mutual consent?

ü  What to do to get a divorce in India?

ü  In India what are the rights available to the second wife in bigamous marriage?

ü  Where to file a Divorce Petition in India?

ü  What do i do if my wife left me without any reason?

ü  What are my rights in the process of divorce as a wife?

ü  What should i do if my husband won’t pay Alimony?

ü  How can I get maintenance from my husband?

ü  How can I get divorced in one country when my spouse lives in another country?

Suggestion - If there is no WILL and a person dies

Q1. Can a matter relating to obtaining probate of a Will executed by person be referred to Arbitrator ?

A. No, Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased. The Probate granted by a court is a judgement in “rem” and is conclusion and binding not only on the parties but also on the entire world. As such the parties cannot by mutual consent refer a probate regarding Will to Arbitration.

Q2. What does actually WILL means. How do you make it also tell me the way of registering?

A. WILL is a legal declaration of the intention of a person with respect to his property or a state, which he desires to take effect after his death. WILL is an untitled document which state after the death of a person making the deposition an it is document which can be revoked , modify or substituted by the person executing the will at any point of his time during his life time. For executing the Will the person must be fully competent, as much as he should not be a minor and should not person of unsound mind. The Will has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing state of mind. It has to be signed by the executor of the Will and has to be attested by two witnesses atleast. However under the provisions of law the Will is not requiring in writing no required to be signed or attesting. The WILL under law is not required to be compulsory registered. It can be executed even on a plain paper and it can be fully valued even if unregistered. In the event of the person desiring WILL to be registered, he has to approach the office of the Sub-registrar and has to be accompanied by the person who have signed as witnesses on the said WILL .The executor of WILL as well as the attesting witnesses have to put their signatures and thumb impressions in the register maintained by the Sub-registrar. There are Sub-registrars defined for various district and you have to inquire for in this regard from the concerned office as to which Sub-registrar you are required to get your WILL registered. The Sub-registrar would be as per the place of the residence of the person executing the WILL.

Q3. One of my friends father died without leaving any Will. He has two married sisters and no brother. One of his sister is insisting that she should be given ½ of the share as other sister is not interested in claiming any share. What is the law in this context?

A. When a Hindu male dies intestate his property devolves around his legal heirs. Section 10 of the Hindu Succession Act,1956 gives in detail the list of Class I heirs who are go be given first preference while dividing the property of the deceased. Rule 1 of this Section provides for a share of property for the widow of the deceased. Rule 2 of this Section provides for a share each for the surviving sons and daughters and the mother of the deceased. In your case though it is not clear whether the deceased has a surviving widow and mother but in case there are only two surviving daughters and a son each one will get a share each i.e. 1/3 of the undivided share in the property. In case one of the sisters of your friend is willing to relinquish her share in favour of the other sister, she can do so by executing a relinquishment deed in her favour. However, in case your friends father has left a residential house, which is occupied by your friend and other members of the family, then under Section 23 of the Hindu Succession Act, 1956, his sisters can not claim partition of the said House till the son (i.e. your friend) chooses to divide the respective shares in the said house.

Q4. Is it true that a person in India cannot name his daughter as a successor in his will and give her all his property? If yes, what happens if a person has only daughter and no son?

A. It is wrong that a person in India cannot give his/her property to his/her daughter in his WILL. Person can give anything to his daughter in a WILL. Even if there is no WILL and a person dies and his only successor is a daughter, the daughter automatically becomes the owner of all the properties/assets of the deceased.

Q5. Payment of deceased depositors money without nomination valuing Rs.100000 to the legal heirs on the strength of affidavit and indemnity bonds, is the payment payable to legal heirs without production of succession certificate from a foreign bank situated in New Delhi. Kindly guide rules in this regard?

A. The bank can make the payment to the legal heirs on the strength of Indemnity Bond and affidavit. There is no compulsion for obtaining the succession certificate from the court, unless there is dispute among the legal heirs. But Bank sometimes insists for obtaining succession certificate, in order to fully safeguard them. As per information available with us, there are no RBI guidelines in this regards, but you would be still advised to check the same.

Q6. I have an Indian-born client who is a USA citizen. The couple has assets in India and I have several questions regarding the disposition of these assets. They have a trust set up in the US and I want to know whether the plan of disposition outlined in their trusts would be applicable to property In India. What would be the process in India for the transfer of ownership of the assets at the death of a relative to my clients? What process in India for the transfer of ownership of my clients assets at their deaths? Is there any restriction on the removal of intangible assets from India if received as an inheritance?

A. The assets in India can be disposed off as per the trust provided the same are in conformity with Indian Laws. The assets of the relative can be transferred as per the WILL , if any, left by the relative or in what capacity the person is related to the relative to inherit the assets. At the death of your client the assets can be transferred to the legal heirs or as per WILL or as per Trust depending upon the circumstances. The intangible rights can be transferred in India in accordance with the Transfer of Property Act and that too by a registered document.

Q7. I am resident of Delhi, only son of my mother. My father expired long back. I have 3 sisters all are married , I am also married living with my mother in a flat registered in her name. I wish to get the flats registry changed in my name with my mother content. Pls. advise in details what options do we have for this. I am working and am 29 years old. My wife is a housewife and this flat was bought by her by own resources as well as mine. Pls. advise if she can gift the house to me, what tax, if any will be payable. I hold NRI status. Does just will from her will be sufficient for this.

A. Your mother can execute a WILL in your favour. However, if your sister will object or you apprehend and objections from their side then please go for a Gift Deed. The gift is required to be registered under the Indian Registration Act. You have to pay stamp duty of 8% on the value of gift, i.e. the property in question. In case your sisters will not object then go for WILL. But at the same time take affidavit from your sisters that they know about execution of WILL in your favour and shall have no objection to the WILL, as a precaution.

Q8. A family relation has died without leaving a Will. He was not married. He has I surviving brother and 2 surviving sisters. All his other brothers and sisters have died. The family is Hindu, under the law who all qualifies to inherit from the estate. Only the surviving brother and sisters or do the children of the other brothers an sisters who have died also qualify?

A. Your case fails under Class II heirs of Hindu Succession Act. The property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in class 1 of the Schedule and secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in class II of theSchedule. Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs, those in the first entry in class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry, and so on in succession.

Q9. A family relative has died. He was a Hindu and being a bachelor he did not have immediate family. He has 3 living brothers and sisters and 3 of this brothers and sisters are deceased. The deceased brothers and sisters have spouses and children. He has made a will giving 1/3 share of his estate to one brother who is alive, and 1/3 share each to a nephew and niece of one his surviving sisters. For probate purposes can any of the other living brothers/sisters contest the will. Also can the spouse or children of the deceased brothers/sisters contest the will? What if any, can be legitimate grounds for contesting the will? For probate will the non- -inheritors be required to give any no objection document?.

A. On filling the probate proceedings all the legal heirs will get the notices from the court for filling objections if any. If the heir does not appear before the court it will be presumed that such person has no objection to the grant of probate. Children and spouses of the deceased brothers and sister can also file objections to the grant of probate. Will can only be challenged if it is not properly executed or it was not properly attested by the witnesses or the person in fact had not executed at all or the person executed the Will was influenced by the beneficiaries or the beneficiaries had taken interest in the execution of the WILL. Giving of no objection is not necessary but the presumption will be drawn as stated above. But if no objection is given in court, it would be better.

Q10. If I make my will only in my sons name then my daughters entitled to any thing. Also if a person dies without making a will then daughters entitled to legally for the right in the property?

A You can make WILL in favour of your son by excluding the daughters. If no WILL is made, on death all the legal heirs which includes daughters, have equal share in the property along with sons.

Q11. My mother owns a flat in her name. Can she sell the flat to me or it has to be gifted or willed only?. I am 29 years old, male and have 3 sisters, all married.

A. If your sister will not create problem WILL is the cheapest mode. To further ensure, you take affidavit from your sisters that they know the execution of WILL in your favour and they have no objections. Otherwise gift or Sale Deed is the safer mode. Out of two Gift is preferable. It has to be executed on appropriate stamp paper (depending upon the value of the property) and registered with the Sub-Registrar.

Essential Conditions for Court Marriage

ESSENTIAL CONDITIONS FOR COURT MARRIAGE - There should not be subsisting valid marriage of either of the parties with any other person. - The bridegroom should be of twenty-one (21) years and bride should be of eighteen (18) years of age. - The parties should not be of unsoundness of mind of such a nature as to be unable to give valid consent for the marriage, or suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children, or has been subject to recurrent attacks of insanity. - The parties should not fall within the degree of prohibited relationship. PROCEDURE OF MARRIAGE WHEN BOTH PARTIES ARE HINDUS - The parties have to file a Notice of Intended Marriage in the specified form to the Marriage Registrar of the district in which at least one of the parties to the marriage has resided for a period of not less than 30 days immediately preceding the date on which such notice is given. - The notice is then published/put-up by the Registrar of Marriage inviting objections, if any. - After the expiration of 30 days from the date on which notice of intended marriage has been published, the marriage may be solemnized unless it has been objected by any person. - The marriage may be solemnized at the specified Marriage Office. - Both parties along with three witnesses are required to be present on the date of registration/Solemnization. DOCUMENTS REQUIRED FOR COURT MARRIAGE - Application form in the prescribed format with the prescribed fee - Passport Size Photographs of Marrying Persons - Residential Proof of Marrying Persons. - Date of Birth Proof of Marrying Persons. - Residential Proof and PAN Card of Three Witnesses - Death certificate or divorce decree whichever is applicable, in case one of the parties had any marriages in the past. Note : You can also visit the nearest Arya Samaj for getting married

Unmarried Couples Living As Husband and Wife Will Be Presumed Married - Supreme Court

Unmarried Couples Living As Husband and Wife Will Be Presumed Married - SC

Any unmarried couple who lives as husband and wife are to be presumed legally married and in such cases, the woman would be legally eligible to inherit the property of her partner after his death, said a ruling by the Supreme Court of India.

A bench comprising Justices Amitava Roy and MY Eqbal stated that continuous cohabation of a couple would naturally raise the presumption of a valid marriage and hence, the onus will be on the opposite party to prove that they were not legally married.

“It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party who seeks to deprive the relationship of legal origin,” the bench said.
The court ruled this while hearing a property dispute filed by the grandchildren of a now-deceased man who had been living with a woman for 20 years after his wife’s death. The family members claimed that the woman was not legally eligible to inherit the property of the man as they were not married.
The woman, despite failing to prove that she was legally wedded to the deceased man, had the ruling in her favor on the premise that she had been in a relationship with the man for a long time and also shared the same roof with the rest of his family.
Since 2010, the Supreme Court has been regularly and consistently lending its voice in favor of live-in couples and considering them as husband and wife. This also ensures that the women in such relationships the rights of a wife.
“Where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage,” the bench said.
“In the fact of the case, there is strong presumption in favor of the validity of a marriage and the legitimacy of its child for the reason that the relationship is recognized by all persons concerned,” it said.

Judgments in India

	Court Judgments
Supreme Court of India	Allahabad High Court	Andhra High Court
Bombay High Court	Chattisgarh High Court	Madras High Court
Delhi High Court	Gauhati High Court	Gujarat High Court
Himachal Pradesh High Court	Jammu High Court	Jharkhand High Court
Karnataka High Court	Kerala High Court	Calcutta High Court
Allahabad High Court - Lucknow Bench	Madhya Pradesh High Court	Orissa High Court
Patna High Court	Punjab-Haryana High Court	Rajasthan High Court
Sikkim High Court	Uttaranchal High Court	Kolkata High Court (Appellete Side)
Rajasthan High Court - Jodhpur	Patna High Court - Orders	Delhi District Court
	Tribunals Judgments
Appellate Tribunal For Electricity	Authority Tribunal	Central Administrative Tribunal
Customs, Excise and Gold Tribunal	Central Electricity Regulatory Commission	Central Information Commission
Company Law Board	Consumer Disputes Redressal	Copyright Board
Debt Recovery Appellate Tribunal	National Green Tribunal	Competition Commission of India
Intellectual Property Appellate Board	Income Tax Appellate Tribunal	Monopolies and Restrictive Trade Practices Commission
Securities Appellate Tribunal	State Taxation Tribunal	Telecom Disputes Settlement Tribunal
Trademark Tribunal
	Other Judgments
Law Commission Report	Constituent Assembly Debates	Lok Sabha Debates