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.
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
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.
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.
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
- 2 years + consent of respondent OR
- 5 years living apart continuously
Procedure for Obtaining Divorce
Again it is very similar in both countries.
- 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
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.