If you were married in India, or in the UK and are seeking a divorce – what is the relevant law on getting a divorce? The legal system in India is based on English common law – which means it shares many principles as the UK legal system.
We compare the divorce laws and procedures in India, and England and Wales. There are many similarities between both jurisdictions – with the fundamental difference that Indian divorce law is typically based on different faiths and community/caste values.
In India, the procedure for divorce essentially depends on what religious community the party/ies belong to. If the marriage is interfaith or based on a faith, there are specific laws:
- Hindu Marriage Act 1955 which allows citizens to be governed under personal laws in the context of Hindu law – including in relation to marriage and divorce. It applies mainly to Hindus.
- AnandKarj Marriage Act offers Sikhs their own personal law on marriage.
- Indian Divorce Act 1869 deals with divorce among Christians.
- Parsi Marriage and Divorce Act 1936 sets out the law on marriage and divorce for Parsis.
- Dissolution of Muslim Marriages Act 1939 sets out the provisions of Muslim law for the dissolution of marriage by women married under Muslim law.
- Special Marriage Act 1956 deals with civil divorces, and divorces following inter caste and inter-religion marriages.
- Native Converts Marriage Dissolution Act 1886 under which a Hindu can ask for a divorce if their spouse becomes Christian.
In the UK, divorce (and financial remedies) legislation is secular and is set out in the Matrimonial Causes Act 1973 and the Family Law Act 1996.
Grounds for Divorce
In both India and the UK, the ‘grounds’ for divorce are very similar:
In India, there are a number of grounds for divorce, including:
- Adultery: only infidelity needs to be proved by either party.
- Desertion: when there is a combination 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: this includes physical and mental abuse (though note that this may be applied differently to men and women).
- Impotency: including inability to consummate marriage, and could include sterility.
- Chronic disease: including mental and physical illness.
- Unsoundness of mind: the condition must be incurable and such that it would be unreasonable for the other party to continue living with them.
- Presumption of death.
There is one ground on which a spouse can petition for divorce: this is, that the marriage has broken down irretrievably. One of five facts must be proved to show this under the Matrimonial Causes Act 1973:
- Unreasonable behaviour such that the petitioner cannot be reasonably expected to live with respondent.
- Two years’separation with the consent of the other party.
- Five years living apart (without consent).
Procedure for Obtaining Divorce
Again, there are parallels in both countries.
- Mutual Consent Divorce: the consent of both parties is needed for peaceful separation, and in respect of alimony, maintenance and child custody.
- Contested Divorce: if a party can apply for a divorce on one of the above grounds, papers must be submitted to be examined by the judge. If, after hearing the evidence and/or mediation is unfruitful, the application could be approved, and a divorce decree is granted. In reality, the process can be complex and expert advice should be sought.
Special Procedure: usually, divorce petitions are uncontested and there is no need for court appearances. The Special Procedure is used: the judge examines the petition and supporting documents and evidence, and if satisfied that the marriage has irretrievably broken down, a decree nisi will be granted. A divorce absolute can be sought to finalise the divorce after 6 weeks have passed. A contested divorce, on the other hand, may mean a court hearing and the matter could take months to reach a conclusion.
Where there are children involved, and financial matters to be resolved, it could be a long time before a divorce is finalised.