What are the types of Divorce petition in India?

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Different types of Divorce Petition

A. Divorce by mutual consent

If both couples agree to dissolve their marriage, the married couple may take help of a divorce lawyer apply for a divorce from the courts. But, the court cannot immediately dissolve the marriage. In order to ensure that the divorce petition is granted, it is essential to prove that the couple has lived in a separate home for more than one year or two.

Sometimes a petition for divorce could be filed not because of a disagreement between the couple but because of financial difficulties and the couple isn’t capable of sustaining their livelihood. In such instances, the couple may seek legal advice for divorce through the consent of both parties.

There are three aspects between the husband and wife when they are seeking a divorce:

  1. The first is the minimum and maximum amount of time the couple needs from each other.
  2. The other aspect concerns the issue of custody of the child. In the case of mutual consent divorce, it is the responsibility of the couple to determine which person will be given custody of their child. The custody may be shared or exclusive, depending on the agreement of the parties.
  3. The third element has to do with property, as to what percentage of the property the husband will receive and what will be the share of the wife’s in the property.

Different laws require different time frames to complete the divorce procedures. In accordance with section 13B of the Hindu Marriage Act of 1955, to begin the divorce process, it is required that both spouses must be living in different houses for at least one year. For Christians, the duration is different. As per section 10A of the Divorce Act 1869, couples must live apart for a minimum of 2 years. Living in separate households is not a requirement that the pair must reside in two different places. It is possible that they can be living together, and it’s enough to prove that they did not live as husband and wife.

B. Divorce without mutual agreement

A divorce that is not mutually agreed upon can be possible in the following cases:

1. Cruelty

The act of cruelty can be physical or mental, and if one of the parties believes that the other side’s behavior towards them can cause physical or psychological injury, then it is a valid reason to file for divorce.

2. Desertion

When one or both partners abandon the other without giving a reasonable reason, it’s a valid reason to seek divorce from the other partner. The person who decides to leave the other spouse must have the intention of leaving and provide proof for the same. In Hindu law, the dissertation must have lasted more than two years; however, there is no time limit under Christian law, and a divorce petition may be filed just by declaring that the spouse is guilty of desertion.

3. Conversion

Converting to another religion by one spouse is another cause for claiming divorce from the other. There is no time limit to be completed prior to filing for a divorce.

4. Mental Disorder

In the event that the partner is not able to fulfill the duties they are expected to carry out due to disorders or illness, it is possible that divorce may be sought. But, if the illness doesn’t hinder the individual from carrying out his or her duties, then divorce cannot be sought.

5. Renunciation of the World

If the spouse chooses to rescind the world and receives a holy order, then the aggrieved spouse may file for divorce. The renunciation, however, must be absolute and undisputed.

The Legal Rights of Man After Divorce

In India, in the majority of cases, men are blamed for divorce, and the whole burden is on the husbands to take care of their wives following divorce. Yet, Indian law also grants males protection even after divorce. There are a variety of provisions concerning the protection of the rights of males during and after divorce. Some of the rules that protect the rights of the husbands following divorce are listed below.

There is a belief that only women can apply to the courts to seek a divorce. However, males are also able to go to court for divorce under the following circumstances :

  1. Cruelty: In this case, if the wife exhibits rude behavior and insults her husband regularly, commits character assassination on the husband, or shows cruelty towards their husband, then in such cases, husbands are entitled to seek a divorce.
  2. Adultery: Adultery is usually linked to men; however, few people are aware that adultery can also be the basis for seeking a divorce from the wife. If a legally married woman commits adultery, then the husband has the right to take a divorce action against her.
  3. Mental disorder: If the wife is suffering from any form of mental illness or condition that is incurable, or if she is unable to perform the usual duties women are expected to fulfill, in this case, the husband can seek the assistance of the court to dissolve the marriage.
  4. If the wife suffers from any type of venereal disease or any communicable disease, like HIV or AIDS, which is incurable, then, in this case, the husband could request a divorce.
  5. False accusations: If the spouse has made false claims against her husband’s character or defamed him, then, in this case, the husband may also submit a divorce petition.

Refusal to provide maintenance

In addition to the rules mentioned above, a husband may also refuse to grant the maintenance to his spouse on the grounds mentioned below:

  1. The first reason a husband can refuse to provide maintenance is when his wife has abandoned him.
  2. The other reason the husband may refuse to pay for maintenance is when the wife has herself committed adultery.
  3. If the wife gets married after the divorce, then the former husband isn’t obligated to pay the maintenance amount to the wife.

The Husband’s right to take custody of the child

The most significant right that the husband enjoys is that of an equal right to claim custody of his child. There is a misconception that when courts hear issues regarding the child’s custody, they tend to favor mothers, but this isn’t the case. In the beginning times of the child’s life, the role of the mother is more significant than that of the father. However, that doesn’t mean that fathers can be completely disqualified from taking care of their children. After the first few years of the child’s life, when they are no longer dependent on their mother for all their needs, the father may submit a new petition to the court to request custody of the child. In this case, the court will look into the financial situation of both parents and will also consider with whom the child will be most comfortable with. Also, the court will need to determine by looking at the evidence to decide which parent will provide better care to the child. If the father can prove it, the court will grant him custody of his child.