"Divorce Procedure & Laws for Hindus in India"

-- by Prem Prakash Gupta

Introduction

Divorce is a legal procedure whereby the married couple decides to separate and break all the vows that were taken during the sacred ceremony of a marriage. In India, divorce is still a taboo and is looked upon as a social stigma especially for women who take the step for divorce. Many a times, Hindu women in India resort to suicide or compromise in their marital life rather than opting divorce.

The procedure for divorce in India for Hindus is a long process, and somewhat tedious, given the numerous loop holes in the legal enactments. Mainly, the Hindu Marriage Act is framed to address the divorce related issues relating to the Hindu community in India.

First and foremost, the couple is usually advised to keep the marriage and if things don't work out, then they go for divorce. Many a times, divorce in Hindu communities is looked upon as an empowerment to women to come out of the domestic abuse. In a recent article on yahoo.com, the writer mentions that the increasing rate of Indian divorces is the only measuring scale for women empowerment in India. Though this statement was widely contested and criticized, Hindu divorce is definitely a way out for women who are unable to cope with the pressures of domestic problems that may or may be restricted to the evils of dowry. By and large, divorce is looked upon as a tool in the hands of women, but even men do resort to divorce for various reasons.

Procedure

The Hindu Marriage Act lays down the following procedure for Divorce where there is an option for the Hindu married couple to approach the courts of law for separation procedure.

• The pre condition for divorce for Hindus is that the couple should be living separately for at least one year.
• The first step in applying for a divorce is to hire a competent lawyer. The competency of the lawyer makes or breaks the case. The lawyer should be understanding and experienced in handling similar cases. He should be able to devote time and energy to the case.
• There are two types of approaches to file an application for divorce. One is "by mutual consent" and the other is "by contest".
• The divorce application "by mutual consent" is easier as it takes lesser time as both husband and wife agrees for the grounds on which separation is sought. If the application is made "by content" it leaves room for the counter party to contest the application and drag the case for years together without a valid reason.
• The papers to be submitted includes the Income Tax returns for three years, details of present income, the purpose for applying the divorce, birth and family details and the details of the assets possessed
• A Vakalatnama has to be issued in favor of the lawyer to present the case.
• The applicant(s) should be open in discussions with the lawyer as to the marriage date, situations that compelled the divorce and the like. The more detailed the information is, the more easy it will be for the lawyer to file and fight the case in the applicant's favor
• The procedure for divorce is time consuming in India and may last for at least a year or more in certain cases. Therefore, during this period, it will be very tough for the estranged couple to handle the emotional part.
• The grounds for Hindu divorce can be anything from adultery, desertion, mental disorder, renunciation, life threatening disease, no-resumption of co-habitation.
• Also the children, if any, will be mentally affected if a divorce happens. As tender brains, the separation will leave untold trauma in their minds against family values and love relations. Their future appears blank as the separation of their parents will leave them indecisive with whom to choose as their caretakers. There may be cases when the law declares one parent to take care of the child whereas the child himself prefers to live with the other.
• Once the application is made, the case comes up for hearing after six month during which period, the couple is asked to reconsider. If the couple does not appear in the court after this "cooling period" the application stands void automatically. Also, the couple can withdraw the application during these six months.
• During the divorce process, the couple should come to a conclusion related to custody of child, return of marriage gifts, post divorce maintenance and litigation expenses.
• The alimony is a relatively new concept in India, whereby the separating partner agrees to support the other financially. In mutual consent cases of divorce, the alimony amount is decided mutually, but in contested cases, the courts of law steps in to decide the alimony amounts, when the parties fail to come out with an alimony amount.

Conclusion

The payment of alimony in Hindu Divorce cases has time and again been criticized on the grounds of inherent flaws in the making if rules related to alimony by the law drafters. Recently, the case of Shah Bano has reestablished the consequences of improper legal procedure to claim alimony/ financial support and post divorce maintenance. In spite of all the problems in marriage, compromise is advised by many consultants. Divorce, according to them, should be resorted to, when it becomes ultimately necessary.