The law system in
India is based on the common law and is therefore ultimately derived
from the system in England and Wales. So ultimately it shares many
common principles as well. Below there will be a comparison as to
divorce laws and procedures in
India and England and Wales. It shall be seen that there are many
similarities between both jurisdictions with the fundamental
difference in India the divorce law is based on different faiths and
communities.Main Legislation
India
In India the way one achieves divorce is
essentially based on what religious community one is part of and if
the marriage is an interfaith one than there is special regulation
that governs that, these laws are detailed below:
- Hindu Marriage Act 1955 –
pertains to Hindus, Sikhs, and Jains
- Indian Divorce Act 1869- pertains
to Christians
- Parsi Marriage and Divorce Act
1936- pertains to Parsis
- Dissolution of Muslim Marriages
Act 1939- in this it is explained on what basis women can attain
divorce
- Special Marriage Act 1956- this
pertains to divorces from civil marriages and those between
different communities
- Native Converts Marriage
Dissolution Act 1886- A Hindu can ask for divorce if the spouse
becomes Christian
UK
In the United Kingdom, divorce
legislation is not differentiated on the basis of religion but is
mainly secular
- Matrimonial Causes Act 1973
- Family Law Act 1996
Grounds for Divorce
In both countries the grounds for
divorce are roughly very similar with a few differences.
India
In India there are five grounds for
divorce which are listed below
- Adultery- only infidelity needs to be
proven by either man or woman
- Desertion- This occurs when there is a
mixture of interruption of cohabitation and justifiable and
reasonable absence for 3 years with an intention from the
respondent to permanently separate themselves from the
petitioner who has been left behind. The same also applies to 7
year absences.
- Cruelty - includes abuse which is
physical as well as mental. However despite presumed gender
equality, it is applied differently to men and women
- Impotency- Can include not being able to
consummate marriage, one spouse not wanting to do so and could
also be due to sterility.
- Chronic Disease- Could includes STDs,
mental and physical illness. Although Christians and Parsees
cannot divorce due to STDS or leprosy.
UK
Five facts for Irretrievable
Breakdown of marriage according to Matrimonial Causes Act 1973S 1(2)
- Adultery- adultery + cruelty of defendant
- Unreasonable behaviour- Petitioner cannot
be expected to live with respondent
- Desertion
- 2 years + consent of respondent OR
- 5 years living apart continuously
Procedure for Obtaining Divorce
Again it is very similar in both
countries.
India
- Mutual Consent Divorce- The consent of
husband and wife needed on alimony, maintenance and child
custody.
- Contested Divorce- If eligible on
grounds mentioned above, papers must be submitted to be examined
by the judge, if approved then divorce
decree granted
UK
Special
Procedure - There is no court appearance as the judge just
examines the documents and what is mentioned within it and if he/she
finds it acceptable grants decree of divorce and it is
very rare for these to be defended.
