Dissolution of Marriage in India

Dissolution of marriage is one of the processes which helps to end a marriage. When even after best efforts a couple is not able to comprehend their differences, it is best to end it. This article will discuss about dissolution of marriage in detail by discussing the legal process, the grounds and also why is it important to seek a legal advice while going through this.

How is dissolution different from divorce

The two concepts are very closely related and both imply ending of a marriage, divorce is a broader term and dissolution of marriage is basically one of the ways to achieve it hence can be called part of each other. Divorce can be granted only when one spouse accuses the other with some offence while dissolution is a process where the petitioner does not have to prove any fault of the other spouse rather just provide a reason that is sufficient in the eyes of law. Both the procedures bring an end to the marriage and hence there are a few states which do not differentiate in them, the procedures differ from state to state in India dissolution is called & lsquo no-fault' divorce.

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Dissolution of marriage

Dissolution of marriage is the legal process through which a marriage is brought to an end. Section 13(1) lists the ground on which divorce can be filed which includes adultery, desertion for continuous two years, mental disorder, acute illness, cruelty, and conversion of religion it may also be called Fault Based Dissolution. Section 13 (1A) talks about the consented divorce which is when the divorce is happening due to “ irretrievable breakdown of marriage” and “ irreconcilable differences” . In this is it is necessary for the couples to mutually agree for the divorce, it may also be called No-Fault Based Dissolution . Section 13B states that if a couple seeks for mutual divorce they both must file a joint petition.

Legal Process of Dissolution of Marriage in India

The dissolution of marriage is the legal termination of a marital union by a court. In India the process involves issues like property division , child custody, and financial support . The complexity of these proceedings necessitates a clear understanding of the legal process involved. In India the only way is through mutual consent and all the terms discussed regarding the alimony, custody and property division has to be mentioned in the petition. It has to be filed under- Section 13B of the Hindu Marriage Act, 1955- for Hindu, Parsi, Buddhist, Sikh, Jain or any person on whom other customary laws does not apply Section 28 of the Special Marriage Act, 1954 - Usually for inter-faith marriage Section 10A of the Indian Divorce Act 1869- Christian religion.

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Procedure for dissolution of marriage by mutual consent

1. A joint petition is filed by both the parties along with supporting affidavits which express their consent to divorce.

2. It is present before the court of Civil Judge senior division.

3. The second motion petition is filed after 6 months but before 18 months, if it is not presented the court cannot dissolve the marriage.

4. The court hears both the parties during second petition and if satisfied grants the divorce.

5. The court cannot dissolve marriage if one party withdraws the consent during the inquiry.

The period is given so that the parties get a time to reconcile as marriage is considered to be one of the most sacred bonds and will be granted only if there is no other way out.
 

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Grounds for Dissolution

In the case of Sureshta Devi, the court has outlined the grounds of dissolution by mutual consent - 

1. Living Separately & ndash it does not imply that the parties should be living at different locations, it only implies that they should not be living as husband and wife and both of them shall have no desire to fulfil marital obligations for a year at least before the divorce petition is filed

2. Mutually agreed- both the parties have to give their consent that they do not want to continue the marriage

3. Have not been able to live together- this implied that the marriage has broken to the point that there is no possibility of reconciliation and the parties must consent that they cannot live as a married couple.
    

Documents required

The documents that are necessary to file for a petition of dissolution of marriage are:

1. Residence proof of the spouses

2. Marriage Certificate

3. Affidavit implying the consent

4. Documents proving the grounds of divorce

5. Documents related to the financial status of spouses

6. Income Certificate and tax returns

7. Documents related to property of the spouses
    

When is a marriage dissolved

A marriage is dissolved only when the court issues the final judgement. The judgement includes all the terms of settlement and a certificate for the same is also issued implying the end of the marriage .
 

Division of Assets and Debts

The guidelines provided for the division of assets and debts are-

1. Equitable distribution- In India the court aims for a fair and just division of the properties which may not always be equal distribution.

2. Identification and Valuation- the assets which the acquired during the marriage are identified and valued these may include- joint accounts, investments and other shared possessions.

3. Division- the court determines the division of assets based on various factors like the financial needs of each spouse.

4. Debts- the division of debt is also included and is also considered a factor for equitable distribution.

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Child Custody and Support

The paramount consideration for the court while taking a decision related to child custody is the welfare and best interest of child. The child custody is usually divided into two parts i.e., physical custody and legal custody, they imply where the child lives and the decision-making power respectively. The courts advice a plan which outlines the schedules, holidays and the other important decisions related to the child. Child support is also provided, the non-custodial parent may be ordered to provide the child support considering factors like- financial ability, standard of living. The spouse is also given financial support called Alimony, it may be temporary support or permanent. This may be modified if the spouse marries someone else or the circumstances changes.
 

Mediation and Alternative Method

These methods are cost effective way to dissolve a marriage, mediation provides a chance for open communication and resolving the divorce matter outside the court. Alternative methods include- Collaborative divorce, arbitration, negotiation. They are better option because they provide a mutual agreement to the couple, they are less costly and are faster than the court process.
 

Why is legal advice crucial- why is a lawyer required

It is important to take legal advice because

1. To understand your rights and obligations as expressed under the different legislations.

2. To protect your interest and decide whether you need Mediation, Negotiation or any other Alternative Method.

3. A counsel helps you to save money and time and ensures compliance with legislation.

4. Legal Counsel also ensures fair settlement and handle all the issues related to division of property, child custody and alimony.

Dissolution of marriage in India is the process which happens through mutual consent, even if one of the parties reconsider their decision the court is not empowered to end the marriage. Dissolution of marriage can only happen when the parties are no longer able to stay together as a couple and the difference between them are irreconcilable. It is important to seek legal advice to get the best solution possible and not to get stuck in the complexities of legal world.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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