What are the Men's rights in Divorce ?
In today’s society, both men and women are treated equally and both share the responsibility of providing maintenance to another spouse after divorce. The law on alimony and maintenance is different for different religions. For instance, under Hindu Marriage Act, 1955 both the husband and the wife are legally entitled to claim alimony and maintenance. However, if you are married under Special Marriage Act, 1954 only the wife is entitled to claim compensation. As men, you are also entitled to maintenance which if not agreed by the If you are abused, humiliated, tormented and threatened to be evicted from the house you may approach the nearest women cell but do you know what to do if this happens to men in India.
Nearly 10,000 complaints of dowry turn to be false each year. This figure makes the Protection of Women Against Domestic Violence Act (498A) is one of the most abused law in the country. However, you need not worry. Our Indian legal system protects guards both the gender equality. As per the current law, there is a penalty of Rs.15,000 in case it is found that the case is false. While filing for divorce, the most important thing is to decide on child custody and alimony. Here is what men should know when it comes to these issues.
Custody of Children
If you have children, after the dissolution of marriage, custody of the child is the first thing to be decided. In most of the cases, court grants custody to the mother of the children. However, you can plea before the court for joint custody of children. During joint custody both the parents get the legal custody but only one will have the physical custody of the child and will be the child’s primary caretaker. In some of the recent judgments, the court has granted sole custody to fathers as well. While granting custody, the court held that custody will be given to the parent who can bring up the child in a better way. The welfare of the child is given more importance than the gender of the parent.
Yes, husbands can also claim alimony if they are unable to maintain themselves. Alimony is also called as maintenance and it is the amount payable for spousal maintenance after parties is decided by the court.
A husband can also file a divorce petition on the ground of mental stress and cruelty done by the wife. In various cases, the court has held that the husband is entitled to relief of divorce on the grounds of cruelty.
How to End a Marriage in India?
Marriages are considered to be pious in India. They are believed to be an eternal bond which lasts not only for this lifetime but also for the lives to come. Couples may want to end their marriage due to incompatibility issues or for that matter any other reason. In India, marriages are governed by personal laws depending upon the religion of the person. There are commonly two methods of ending a marriage in India either through divorce or an annulment decree from the court.
Divorce dissolves a marriage whereas annulment declares a marriage as null and void as if the marriage did not happen at all. The grounds for both of them differ. In case of a divorce, the divorced couple is tagged as a divorcee, whereas in annulment the status of the couple goes back to what it was prior to marriage,i.e. Single.
Annulment of Marriage
Annulment is a legal procedure declaring a marriage null and void.There are different grounds on which a marriage can be annulled. An annulment can be done in cases of void marriages and voidable marriages.
A void marriage is no marriage at all, it is considered to invalid from the very beginning. Voidable marriage is the one which can be avoided at the option of the parties to the marriage. Voidable marriages are valid unless its validity is questioned. In case of void marriages, parties can remarry without getting a decree of nullity from the court but they cannot do so in case of a voidable marriage.
The Grounds for Annulment
Following are the grounds for annulment-
1. Inability to consummate the marriage- If either of the spouse is chronically unable to have sexual intercourse or is impotent.
2. Incapable of giving Consent- If either of the spouse was incapable of giving consent at the time of the marriage.
3. Mental Disorder- If either of the spouse was suffering from a mental disorder at the time of marriage owing to which he or she cannot be considered fit for marriage or procreate children.
4. Insanity or epilepsy- If either of the spouses suffered from recurrent attacks of insanity or epilepsy then its serves as a ground for getting annulment.
5. Under the legal marriage age- In India, the legal age of marriage for males is 21 years and for females is 18 years. If either of the spouse is under this age then annulment can be sought.
As per Section 12 of the Hindu Marriage Act, marriage is considered voidable if-
1. Consent is obtained by fraud
2. Forced Consent- If consent to marriage is obtained through coercion or physical threat then such forced consent is a valid ground to seek an annulment.
3. Concealment of material facts- If any material fact like the age, past, criminal record has been concealed by the parties then the aggrieved spouse can seek an annulment on this ground.
4. Pregnancy- If at the time of the marriage the respondent is carrying a child of some other person the husband can seek an annulment but this right is forfeited of the marriage is consummated after he came to know of this fact.
In cases of Children Born out of Marriage
If a marriage is void and children is born out of that marriage then according to the Hindu law, these children are legitimate. In cases where the children are born out of the voidable marriage then the children are legitimate and they can inherit the properties of their parents but will have no right in the ancestral property.
If your marriage is not void or voidable then the other way to end a marriage is through divorce. Divorce can be done either with mutual consent or it can be a contested divorce.
Mutual Consent Divorce
In mutual consent divorce as the word suggests it is with the consent of both the parties, i.e. both the parties agree to divorce each other and end the marriage. Previously, the provision of mutual consent divorce was a little tough whereas with the help of the recent Supreme Court judgement the mutual consent have been made easier and also serves as time saver. Couples who do not wish to live together can just simply go to the court and file for the mutual consent divorce as in this kind of divorce with recent modifications the cooling off period of six months have been waived off.
Contested Divorce is when only one of the parties want divorce. The party seeking divorce can file for it on any of the following grounds-
As per the Hindu Divorce Laws in India, if one spouse has a reasonable fear in the mind that the partner’s conduct in all likelihood be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse. It can be both mental or physical.
In India adultery is a criminal offence. Adultery means to have sexual intercourse outside of marriage. The wife may, also, file for divorce as another remedy.
If either spouse is suffering from mental illness and is incapable of performing the normal duties expected in a marriage then it becomes a valid ground for divorce.
A spouse leaving/ abandoning the other without reasonable cause is a valid ground for divorce. For instance, as per Hindu laws, the desertion must last for at least 2 continuous years.However, the spouse who abandons the other should do so to desert and there should be evidence of it.
Under the Hindu Divorce Laws, if a spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy then it is a valid ground for divorce.
Presumption of Death
If either of the spouses has not been heard of by the other spouse as being alive for a period of at least seven years, then the spouse who is alive can obtain a divorce.
If a spouse converts to another religion then the partner can seek divorce. This reason does not require any time limit to have passed before divorce can be filed.
Renunciation of the World
If either of the spouses surrenders his/her married life and chooses to be a sanyasi, the aggrieved spouse may obtain a divorce on this ground.
What are the requirement for a Mutual Divorce?
Requirements to be complied with for a Mutual Divorce:
The parties have been living separately for a period not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation. But it does not seem necessary for the court to go into that matter, provided the condition of separate living under the same roof of the matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court ought not to travel beyond the statutory condition of its jurisdiction.
The parties have failed for any reason whatsoever to live together. In other' words, no reconciliation or adjustment is possible between them.
The parties have freely consented to the agreement of dissolution of marriage.
The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making inquiry, the unilateral right of a party to withdraw the petition appears to be barred.
Process/Steps involved in Mutual Divorce:
There are several steps involved to get a divorce by mutual consent. The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. There are also two motions involved in this procedure. The following are the important steps:
Joint Petition: The first step is the filing of a joint petition in the respective family court. This joint petition is to be signed by both parties. The divorce petition contains a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce. This statement also has the agreement to split the assets, custody of children, etc.
Appearance of Parties: The second step of the procedure is the appearance of both the parties to the divorce in the family court after the petition has been filed. The court fixes this date and the parties appear along with their counsels.
Scrutiny of the Petition by Court: The court thereafter scrutinizes the petition and the documents filed by the parties. When and if the court is satisfied, it orders for the recording of statements of the parties on oath. In some cases, the court attempts to bring about reconciliation between the parties. When there is a failure to reconcile the parties, the divorce matter is proceeded with.
Recording of statement and passing of the order on First Motion: After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. After this, a 6 month period is given is given to the parties, after which the parties are required to file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion.
Second Motion: After 6 months of the first motion or by the end of the reconciliation period, if both parties still don't agree to come together, then the parties may appear for the second motion for the final hearing. This also involves the parties appearing and recording of statements before the court. In a recent judgement, the Supreme Court has categorically stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court. If the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.
Decision of the Court: The most important requirement for a grant of divorce by mutual consent is the free consent of both the parties. In other words, unless there is complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce and now the divorce becomes final.
Advantages of Mutual DivorceTaking a mutual consent divorce removes unnecessary quarrels and saves a lot of time and monetary resources. With the ever-rising number of applications being filed for divorce, mutual consent divorce is one of the best-given options. Where to file the Divorce case? The parties are required to file for divorce in the family court of the city where both the partners lived together for the last time, i.e. their matrimonial home. It can even be presented in the court of the city/place where the marriage was solemnized.What information/documents are required for Mutual Divorce?The following documents would be required for a divorce by mutual consent:Address proof of husbandAddress proof of wifeDetails of professions and present earningsCertificate of MarriageFamily background informationPhotographs of marriage between husband and wifeEvidence to prove that the husband and wife have been living separately for more than one yearEvidence proving failed attempts of reconciliationIncome tax statementsDetails of property and assets of the partiesCertain other documents may also be required, depending upon the facts and circumstances of the particular case. How long does it take to get a decree of Divorce by Mutual Consent in India?The average timeline of the entire process, from the date of filing till getting the divorce decree can be around six months to two years. However, it can take longer, depending upon the nature of the particular case. No set time can be stated as each case is different and independent of the other. Keeping that in mind, however, mutual divorce has been seen to be the least time taking as compared to other procedures of divorce. Can Mutual Divorce decree be obtained through notary?No, mutual divorce cannot be granted through notary in India. A valid decree of divorce can only be granted by the family court of appropriate jurisdiction. Can a party withdraw the petition for Divorce? During the six month period or time gap between first motion and the second motion, either of the parties can withdraw by filing an application before the court, stating that they do not intend to get a divorce through mutual consent. In such a circumstance the other party would only have one option -to file for contested divorce. A contested divorce can be filed on any of the following grounds like cruelty, desertion, voluntary sexual inter-course with another person, unsound mind, conversion of religion by other spouse, leprosy, venereal disease, a spouse having renounced the world or being missing for a period of more than 7 months. Can a party remarry without getting a Divorce? To remarry, getting a divorce is a pre-condition. If you remarry without getting a divorce then it is a punishable offence with 7 years imprisonment. Is appearance of parties necessary for obtaining Divorce decree?In most cases, parties are required to be present before the court during first and second motion. Only in rare cases, camera proceedings may be allowed where the courts are convinced that the attendance of the party in question cannot be arranged by all possible means and it is totally on the discretion of the court to allow it. How can NRIs get a Mutual Divorce?In case of divorce of an NRI couple, they can file a divorce petition in a foreign country under the laws where the party currently resides. It is imperative that the decree by foreign courts should not be inconclusive of section 13 of the Civil Procedure Code, 1908. Infact, if the divorce petition is filed in India where one of the parties is staying abroad then the court may permit for camera proceedings. What happens when mutual consent is obtained by force or coercion?It is the duty of the court to examine that the consent is not viciously obtained. If the court fails to determine whether the consent was given freely or not, then such a divorce decree cannot be regarded as a decree by mutual consent. In case the consent for mutual divorce is obtained through force or coercion, the aggrieved party can file an appeal to strike down such a decree. Is the statutory cooling-off period for six months mandatory?No, the statutory cooling off period for six months is not mandatory. If the court deems fit, then it can waive off this cooling period. This implies that if the couple has mutually decided to dissolve their marriage, they can request the court to expedite the process and not wait for another six months. How is the issue of maintenance tackled in case of a Mutual Divorce? Alimony is an important aspect in matters of divorce proceedings. In cases of mutual divorce, the divorcing husband and the wife are required to agree on the sum of alimony or maintenance which will be given either by the husband to wife or wife to the husband as the case may be.While deciding the amount of alimony, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration.In case the parties mutually agree that there is no requirement to pay any alimony, it is not compulsory for the parties to decide the quantum to be paid. No maximum or minimum amount of alimony has been set by law, hence, it is upon the parties to agree upon a particular sum. It is generally decided as a gross sum, or a monthly amount, not exceeding the life of the receiver, giving regard to the payer’s own property and income. How is child custody and support decided in Divorce matters?While obtaining a divorce through mutual consent, the parties are required to settle the issue of child custody. Custody of the child implies as to who the child will physically reside with. The custodial parent would be the primary caretaker and would thereby be responsible for the medical, educational and emotional needs of the child.Both the parents are equally competent to take the custody of the children. However, in this kind of divorce, the parties need to mutually agree upon matters such as - who would have the physical custody of the child, the duration of visitation rights, the interim custody, how the child’s living and educational costs will be met, etc. The spouse can even opt for joint custody. Under this arrangement, one of the parents would be the primary caretaker and thus have the physical custody of the child, and both of them would have the legal custody of the child.The court regards the interest and welfare of the child as paramount considerations in matters of child custody. The court is the parens patriae i.e. the ultimate guardian of the child and hence the minor child’s property/income is protected by law. Moreover, the terms of custody, access and child support can be changed in case the circumstances are altered, or in the best interest of the child. Is Divorce law different for different religions in India?Yes, like marriage laws, divorce laws are also different for different religions. Divorce for Hindus is covered by Hindu Marriage Act, 1955. This includes Sikhs, Jains and Buddhists. Christians are governed by Indian Divorce Act, 1869. Muslims are governed by Personal laws of divorce and Dissolution of Marriage Act, 1939 and the Muslim Women ( Protection of Rights on Divorce) Act, 1986. For inter-religion marriages, there is a secular law, Special Marriage Act, 1954. The following list explains mutual divorce in different religions: Mutual Divorce under Muslim Law :Under Muslim Law, there are two categories of divorce - ‘judicial’ and extra-judicial. Mutual Divorce under Muslim Law falls under the extra-judicial category. There are two kinds of divorce by mutual agreement called ‘khula’ and ‘mubarat’. Under both these kinds of mutual divorce, the woman is to part with her ‘dower’ or some other property.‘Khula’ under Muslim Law is said to be an agreement between the husband and wife for dissolving a union in lieu of compensation (part of her property) that is paid by the wife to her husband. Even though this consideration is important, the actual delivery of property is not a precondition for the validity of the divorce under ‘khula’ system. An irrevocable divorce takes place once the husband gives his consent, and the husband has no right to cancel the ‘khul’ on the ground of consideration not having been paid.Under the ‘mubarat’ form of mutual divorce, both the parties must desire divorce, and thus the proposal for it can emanate from either wife or husband. Both these parties should be willing to separate. Once the offer is made, the other party must accept it, and once it is accepted, the divorce becomes irrevocable. Under the Sunnis, once the husband and wife enter into a ‘mubarat’, all the rights and obligations of the parties come to an end. In Shias, a proper form is imposed, i.e. the word ‘mubarat’ should be followed by the word ‘talaq’ for the divorce to take place. These words should be uttered in Arabic, and the intention to end the marriage should be expressed clearly.In both ‘Khula’ and ‘Mubarat’, the wife shall go through the ‘iddat’ period and in both, the divorce is an act of the parties and no intervention by the court is required. Mutual Divorce under Christian Law : Divorce for Christians in India is provided for under the Divorce Act, 1869. Section 10 A of the Act gives the provision for dissolution of marriage by mutual consent. A petition for mutual divorce can be presented by both the parties to the appropriate district court. The petition should be presented upon the grounds that the parties have been living separately for more than a year and that it is not possible for them to cohabit together and that the decision to dissolve the marriage has been mutually agreed upon.This petition can be withdrawn after the expiry of 6 months from the date of the presentation of the petition, but before a lapse of 18 months from this date. Mutual Divorce under Parsi Law :Provisions for marriage and divorce for Parsis in India are given in the Parsi Marriage and Divorce Act, 1936. Divorce by Mutual Consent is given under Section 32B. It states that both the husband and wife can together file for mutual divorce upon the ground that they have been living separately for a period of one year or more, and that they have not been able to live together. They have to mention that they mutually agree that the marriage should be dissolved. However, a suit under this section cannot be filed, unless one year has elapsed since the date of the marriage.
Custody of Children in India
Parenting is not merely the bragging rights of a desperate parent but is an endeavor that determines the future well-being and morale of the child. The need for determining the legal guardianship of children aged below 18 occurs in the event of a divorce or annulment of marriage. In India, the rights of adjudication of this most delicate of provisions are vested with the family law courts. This article covers the legal framework pertaining to the custody of children in India.
Types of Custody
The law concerning custodianship facilitates custodianship of any of the following manner, as directed by the courts:
Joint physical custody
Third party custody
Here’s an overview of the above-mentioned types of custodianship.
Physical custody awards the custody of a child to a single parent if the other parent is abusive and is considered unfit for parenting. The parent with the custodial rights will be designated as the primary caretaker and will be in charge of the child’s emotional, medical and educational needs. For this purpose, the legal guardianship is bestowed on the person who may potentially serve the child better in terms of these needs.
The earning capacity of the parent isn’t prioritized here, as the parents are assessed based on their potential to provide a safe and secure environment to the child. If a non-earning parent is bestowed with the custody of a child, the earning member is accountable to cater to the financial needs of the children.
Note: According to a ruling of the Supreme Court, the custody of a child is bestowed to the mother if the age of the child is five or below, subject to conditions.
Joint Physical Custody
The affection of a child is oftentimes impossible to comprehend. Most children, except in certain extreme scenarios, prefer to side with both their parents. Such a scenario would entitle both the parents to cherish the legal custody of the child, though physical guardianship would be entrusted to a single parent. Here again, the aspect of income isn’t prioritized over the potential of the parent to provide a safe and secure environment to the child.
The option of legal custody bestows the parents with the entitlement of making vital decisions with respect to the upbringing of a child. The rights so bestowed on them includes the right to cater to the child’s educational, moral, financial, and medical requirements. These aspects are given prominence as it has a direct bearing on the welfare of the child.
Third Party Custody
The discretion to bestow the guardianship rights on the hands of a third party are taken when the concerned adjudicators are of the opinion that neither of the biological parents is considered fit to be assigned with the custodianship. In this case, the rights are granted to a third person.
The Central Regulation
The laws concerning the custody of a child are provided in the Guardians and Wards Act of 1890. The law is enforced on all the religions of the country and is considered in conjunction with the relevant religious laws. On a precise note, the following aspects are considered while determining the guardianship of a child:
The personal law wherein the minor is the subject.
The age, gender, and religion of the minor.
The character and capacity of the proposed guardian.
The relationship of the kin with the minor.
The wishes of a deceased parent.
Any existing or prior relations of the proposed guardian with the minor.
The minor’s capacity to make an intelligent preference.
The desire of the child.
The number of siblings in a family – The courts would generally like to keep the children together if the concerned family has multiple children, and hence would ordain the custodial rights accordingly.
The comfort, health, material, intellectual, moral and spiritual welfare of the child.
The Hindu Law
The Hindu laws pertaining to guardianship are covered in the Hindu Minority and Guardianship Act, 1956, which is almost synonymous with the Guardians and Wards Act, 1890. The similarities found in both these laws are as follows:
The mother will be bestowed with the custodianship of the child if the particular child is aged five or below, except in circumstances where the mother is proven to neglect or ill-treat the child.
The general regulatory standards of both the laws favor the father to gain custody of older boys and the mothers with that of older girls, though it is by no means a compulsory dictum.
A child’s desire is considered if he/she has surpassed the age of nine.
Apart from the above provisions, the Hindu Law ordains the following:
The custody of boys and unmarried daughters is bestowed on to the father.
Mothers are provided with the upper hand of attaining the custodianship of an illegitimate child, though the father isn’t deprived of these rights.
The guardianship of a married girl is attached to her husband.
The Muslim Law
According to the laws of ‘hizanat’ (the Muslim law for child custodianship), the rights of custodianship are entirely vested with a mother except if she is considered unfit to be a guardian. However, it may be noted that the rights of a mother aren’t absolute as the desire of the children holds more significance.
The Christian Law
The laws of Christianity are silent on the issue of child custody rights and are hence governed by the Indian Divorce Act of 1869. Section 41 of this Act entitles the courts to pass orders with respect to the custody, education, and maintenance of Christian children. The Act generally adheres to the rule of joint physical custody.
The Parsi Law
The Parsis, like the Christians, haven’t come up with any laws pertaining to this provision. As a consequence, the associated issues are addressed by the Guardians and Wards Act, 1890, and the Parsi and Marriage Divorce Act, 1936. The latter Act provides ample support to a wife claiming maintenance to support his/her minor children. Also, the Act mandates the courts to pass an order of Parsi custodianship within 60 days.
Recent Court Rulings
The following regulations have been enforced by the various courts over the last few years:
The Supreme Court has determined that the mother of a child will be bestowed with its custodianship if the particular child is aged five or below, except in circumstances where the mother is proven to neglect or ill-treat the child.
A Supreme Court Bench presided by Justice Vikramjit Singh Sen had issued a directive stating that an unmarried mother need not seek the consent of the biological father of the child to enjoy its custodianship.
The Delhi High Court has stated that the name of a mother would be considered sufficient for a child’s passport application if the child is being brought up by a single mother.