New Divorce Rules in India – Divorce marks the legal end of a marriage. Attitudes and beliefs about the institution of marriage evolve over time, and consequently, divorce laws in India are adapted to meet contemporary needs. Therefore, it is essential to grasp the updated rules for divorce in India in 2022-2023. In earlier times, divorce was a rare occurrence in India. However, as time has passed, it has become evident that people’s mindsets have changed.

Now, couples no longer hesitate to pursue divorce if they believe they cannot sustain their marriage. Courts establish guidelines to resolve divorce cases and ensure justice for both parties. This article will help you understand the recent changes in divorce rules.

TOPIC	INFORMATION
Grounds of Divorce	Divorce can be granted on several grounds, including adultery, cruelty, desertion, conversion, mental disorder, venereal disease, and the irretrievable breakdown of a marriage.
Jurisdiction in Divorce case	The district court where the couple last resided together has jurisdiction over divorce cases.
Residency Requirements for Divorce Case	At least one spouse must have resided in India for a minimum of six months before filing for divorce.
Period to Wait	There is a mandatory waiting period of six months after filing for divorce, during which the court may attempt to reconcile the couple (This period can be also waived off after showing some urgency)
Separation Agreement between parties	The couple may attempt to reach a separation agreement, which will then be reviewed and approved by the court.
Mediation Between parties in divorce case	The court may suggest mediation as a means to resolve disputes and reach a settlement.
Contested vs. Uncontested Divorce and Process	Divorce can be either contested or uncontested. In a contested divorce, the court will hold a trial and make a decision on the terms of the divorce. In an uncontested divorce, the couple agrees on all terms, and the court simply approves the agreement.
Alimony in Divorce Case	The court may order one spouse to pay alimony to the other, depending on various factors such as the duration of the marriage, the earning capacity of each spouse, and the standard of living during the marriage
Custody of Child and support	The court will make decisions regarding child custody and support based on the best interests of the child. Both parents have a legal obligation to provide financial support for their children.
Appeal	Either spouse can appeal the decision of the district court to a higher court if they are not satisfied with the ruling.

Table of Contents

New Grounds of Divorce in India

GROUNDS FOR DIVORCE	IN PREVIOUS LAW	IN NEW LAW
Adultery as Ground of Divorce in India	Only the spouse who was cheated on could file for divorce	Both spouses can now file for divorce
Mental/Physical Cruelty as Ground of Divorce	Included physical violence, harassment, and mental torture, but lacked a clear definition	Now includes physical violence, harassment, and mental torture, and also encompasses withholding financial support or denying access to a child
Desertion	Required a continuous period of 2 years	Reduced to a continuous period of 1 year
Conversion	Not recognized as grounds for divorce	Now recognized as grounds for divorce
Irretrievable Breakdown of Marriage	Was not recognized as grounds for divorce	Now recognized as grounds for divorce, but requires a one-year separation period”

1. Waiving the Mandatory 6-Month Period for Rehabilitation

According to section 13B(2), when couples approach the court for divorce with mutual consent, the court grants them a mandatory six-month period to consider the possibility of reconciling their differences.

This period is granted by the court with the intent of saving the marriage. After the end of six months, the couple may decide to reunite or proceed with a divorce.

The rehabilitation period of six months was previously mandatory. However, under the new rules, it is no longer mandatory and is justify to the discretion of the court.

The court may decide based on the facts and circumstances of the specific case whether there is a need to order a six-month rehabilitation period or whether the couple should be immediately allowed to divorce.

This was observed in the Supreme Court ruling in the Akanksha vs. Anupam Mathur case. The court was satisfied that the couple had made a conscious decision to divorce, and there was no point in requiring the parties to wait for another six months for a divorce.

The court decided to waive the six-month period and ordered the dissolution of the marriage.

2. Irretrievable Breakdown of Marriage, a Valid Ground for Divorce

When a couple decides that they cannot continue living as married partners, this situation is referred to as the separation or breakdown of the marriage. The partners may or may not live under the same roof, but they do not function as husband and wife.

There are no separate rules for this issue in divorce law.

It is a matter of the court’s discretion whether the separation can be considered grounds for divorce.

If the court believes that there is no possibility of the couple reuniting or if both or any of the spouses are unwilling to live with each other, it can allow them to proceed with the divorce.

In the Sangamitra Ghose vs. Kajal Kumar Ghosh case, the Supreme Court observed that the marriage between the parties had irretrievably broken down, and there was no possibility of repairing the marital bond. Therefore, the apex court ordered that the couple could divorce on the grounds of the irretrievable breakdown of the marriage.

3. Law of Maintenance Extended for Live-in Relationships Partners

Under the Hindu Marriage Act, 1955, the court may order the payment of maintenance to help women maintain the same standard of living after divorce. If the marriage is not under Hindu law, a woman is eligible to claim maintenance under Section 125 of the Criminal Procedure Code.

The status of a live-in relationship is treated as a marriage in the eyes of the law. Therefore, a woman who was in a live-in relationship can also claim maintenance from her live-in partner under the Code of Criminal Procedure. Additionally, if the partners have been in a live-in relationship for a long time, there is no need to provide strict proof of marriage.

Under the new divorce rules in India in 2022, the victim, i.e., the wife or the live-in partner, can claim relief under the Protection of Women from Domestic Violence Act, 2005, even if she is not eligible for a claim under the Criminal Procedure Code. The victim can claim even greater relief under the Protection of Women from Domestic Violence Act than what is contemplated under the Code of Criminal Procedure.

4. Adultery Is Not Punishable Offence

(In Indian penal Code)

According to the new rules, adultery can be considered grounds for divorce in India, but it is not punishable. The court has observed that punishing the spouse and his or her lover with whom he or she engaged in adultery cannot be a remedy to save the marriage.

Partners can claim divorce based on the grounds of adultery, but there is no punishment for adultery.

5. Triple Talaq Cannot Be Grounds for Divorce

Under Muslim law, merely saying ‘Talaq’ three times could be the basis for divorce in India. This practice was unfair to Muslim women as it gave Muslim men the unilateral right to dissolve the marriage. The arbitrary practice of triple talaq is against women’s rights. Triple talaq has now been declared unconstitutional (As its banned by Hon’ble Supreme Court in The Shayara Bano case and holds no significance in the eyes of the law according to the new divorce rules in India for 2023.

6. Divorce Under Personal Law Cannot Override the Power of the Civil Court

Divorce can only be ordered by the Civil Court. If the Christian Church or any other personal law grants a divorce, such divorce shall be invalid. The Apex Court in the Molly Joseph vs. George Sebastian case held that the competent court could only dissolve the marriage. The order or decree of the Civil Court shall prevail and override any order passed by personal law or Ecclesiastical Tribunal.

New Divorce Rules in India: Marriage Laws (Amendment) 2013

THE MARRIAGE LAWS (AMENDMENT) BILL, 2013

Be it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows:

CHAPTER I – PRELIMINARY

(1) This Act may be called the Marriage Laws (Amendment) Act, 2013. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

CHAPTER II – AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955

In the Hindu Marriage Act, 1955 (hereafter in this Chapter referred to as the Hindu Marriage Act), in section 13B, in sub-section (2), the following provisos shall be inserted, namely:— “Provided that on an application being made by both the parties, the court may reduce the period specified under this sub-section to a lesser period and the court may waive off the requirement for moving the motion by both the parties, if it is satisfied that the parties to the marriage are not in a position to reconcile their differences: Provided further that where one of the parties fails to appear before the court within a period of three years from the date of presentation of the petition under sub-section (1), the court may, on an application made by the other party, waive the requirement of moving the motion by both the parties.”
After section 13B of the Hindu Marriage Act, the following sections shall be inserted, namely:— “13C (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2013], on the ground that the marriage has broken down irretrievably. (2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition. (3) If the court is satisfied, on the evidence as to the fact mentioned in sub-section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce. (4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart. (5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

13D. (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 13C, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances, be wrong to dissolve the marriage. (2) Where the grant of a decree is opposed by virtue of this section, then,— (a) if the court finds that the petitioner is entitled to rely on the ground set out in section 13C; and (b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would, in all the circumstances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.

13E. The court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage. Explanation.— In this section, the expression “children” means— (a) minor children including adopted children; (b) unmarried or widowed daughters who have not the financial resources to support themselves; and (c) children who, because of the special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.

13F (1) Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 13C on a petition made by the wife, order that the husband shall give for her and children as defined in section 13E, such compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such an amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband. (2) Any order of settlement made by the court under sub-section (1) shall be secured, if necessary, by a charge on the immovable property of the husband.

In section 21A of the Hindu Marriage Act, in sub-section (1), after the word and figures “section 13”, at both the places where they occur, the words, figures, and letter “or section 13C” shall be inserted.
In section 23 of the Hindu Marriage Act, in sub-section (1), in clause (a), after the word and figure “section 5”, the words, figures, and letter “or in cases where the petition is presented under section 13C” shall be inserted.

CHAPTER III – AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954

In the Special Marriage Act, 1954 (hereafter in this Chapter referred to as the Special Marriage Act), in section 28, in sub-section (2), the following provisos shall be inserted, namely:— “Provided that on an application being made by both the parties, the court may reduce the period specified under this sub-section to a lesser period and the court may waive off the requirement for moving the motion by both the parties, if it is satisfied that the parties to the marriage are not in a position to reconcile their differences: Provided further that where one of the parties fails to appear before the court within a period of three years from the date of presentation of the petition under sub-section (1), the court may, on an application made by the other party, waive the requirement of moving the motion by both the parties.”
After section 28 of the Special Marriage Act, the following sections shall be inserted, namely:— “28A (1) A petition for the dissolution of marriage by a decree of divorce may be presented to the district court by either party to a marriage [whether solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 2013] on the ground that the marriage has broken down irretrievably. (2) The court hearing a petition referred to in sub-section (1) shall not hold the marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years immediately preceding the presentation of the petition. (3) If the court is satisfied, on the evidence as to the fact mentioned in sub-section (2), then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to the provisions of this Act, grant a decree of divorce. (4) In considering, for the purpose of sub-section (2), whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding three months in all) during which the parties resumed living with each other, but no other period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart. (5) For the purposes of sub-sections (2) and (4), a husband and wife shall be treated as living apart unless they are living with each other in the same household, and reference in this section to the parties to a marriage living with each other shall be construed as reference to their living with each other in the same household.

28B (1) Where the wife is the respondent to a petition for the dissolution of marriage by a decree of divorce under section 28A, she may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would, in all the circumstances, be wrong to dissolve the marriage. (2) Where the grant of a decree is opposed by virtue of this section, then,— (a) if the court finds that the petitioner is entitled to rely on the ground set out in section 28A; and (b) if, apart from this section, the court would grant a decree on the petition, the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if, the court is of the opinion that the dissolution of the marriage shall result in grave financial hardship to the respondent and that it would, in all the circumstances, be wrong to dissolve the marriage, it shall dismiss the petition, or in an appropriate case stay the proceedings until arrangements have been made to its satisfaction to eliminate the hardship.

28C. The court shall not pass a decree of divorce under section 28A unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage. Explanation.— In this section, the expression “children” means— (a) minor children including adopted children; (b) unmarried or widowed daughters who have not the financial resources to support themselves; and (c) children who, because of the special condition of their physical or mental health, need looking after and do not have the financial resources to support themselves.

28D (1) Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 28A on a petition made by the wife, order that the husband shall give for her and children as defined in section 28C, such compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such an amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband. (2) Any order of settlement made by the court under sub-section (1) shall be secured, if necessary, by a charge on the immovable property of the husband.

In section 40A of the Special Marriage Act, in sub-section (1), after the word and figures “section 27”, at both the places where they occur, the words, figures, and letter “or section 28A

AS PASSED BY THE RAJYA SABHA ON 26TH AUGUST, 2013

The New Divorce Rules in India amendment bill was passed by the Indian Parliament in 2013, ushering in significant changes to the existing marriage laws in the country.

Key Provisions of the Marriage Laws (Amendment) Act, 2013

Introduction of Irretrievable Breakdown of Marriage:
The amendment introduced the concept of the “irretrievable breakdown of marriage” as a new ground for divorce under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. This allows couples to apply for divorce if they can establish that their marriage has irretrievably broken down.
Mandatory Waiting Period for Mutual Consent Divorce:
The amendment made it mandatory for couples seeking mutual consent divorce to wait for a period of 6 months from the date of filing the divorce petition before the court could grant the decree of divorce. This waiting period was introduced to provide couples with an opportunity to reconsider their decision and attempt reconciliation if possible.
Granting Equal Rights to Women:
The amendment aimed to grant equal rights to women in matters of guardianship and custody of children. It sought to address gender inequalities and ensure that mothers had equal rights as fathers in matters of guardianship and custody.
Prioritizing the Welfare of Children:
The amendment prioritized the welfare of children during divorce proceedings and considered their best interests when deciding custody matters.
Reinforcing the Principle of Monogamy:
The amendment clarified and reinforced the principle of monogamy in Hindu marriages. It stated that a Hindu marriage would be null and void if either party had a living spouse at the time of the marriage.

Why Legal Advice on Divorce is Essential

New Divorce Rules in India 2023:

Seeking legal advice on divorce is crucial for several reasons, as divorce can be a complex and emotionally challenging process. Here are some reasons why obtaining legal counsel for divorce is necessary:

Understanding Your Rights and Obligations:

A divorce involves various legal rights and obligations, such as property division, child custody, alimony, and child support. An experienced divorce lawyer can help you comprehend your rights and what you are entitled to under the law.

Navigating the Legal Process:

The legal process of divorce can be intricate, involving specific paperwork, deadlines, and court procedures. A divorce attorney can guide you through the process, ensuring that all necessary legal documents are filed correctly and submitted on time.

Objective Advice:

Emotions can run high during a divorce, making it challenging to make rational decisions. A divorce lawyer provides objective advice and helps you focus on the best long-term outcomes for your situation.

Negotiating Settlements:

In many cases, divorces are settled outside of court through negotiations. An experienced divorce attorney can advocate for your interests during settlement discussions and ensure that your rights are protected.

Child Custody and Support:

If there are children involved, issues related to child custody and support can be emotionally charged. A divorce lawyer can help you understand the factors considered in custody decisions and work towards a fair arrangement in the best interest of the children.

Asset and Debt Division:

Dividing marital assets and debts can be complex. A lawyer can assist in identifying and valuing assets, ensuring an equitable division according to the law.

Spousal Support (Alimony):

In some cases, one spouse may be entitled to spousal support (alimony) after divorce. A lawyer can help determine if alimony is appropriate and negotiate fair support terms.

Legal Protection:

Engaging a divorce attorney ensures that your legal rights are protected throughout the process. They can safeguard your interests and advocate on your behalf if any disputes arise.

Mediation and Alternative Dispute Resolution:

If you and your spouse wish to resolve the divorce amicably, a lawyer can assist with mediation or alternative dispute resolution methods, promoting a less adversarial process.

Avoiding Costly Mistakes:

The decisions made during divorce can have long-term consequences. A divorce lawyer can help you avoid costly mistakes that could affect your financial and emotional well-being in the future.

Conclusion

It is essential to adapt and modify the existing divorce rules and laws in India according to the changing needs of society. Consideration must be given to various aspects of cases from the perspectives of both men and women. Divorce and marriage are both life-changing events, and the discretionary powers of the Courts play a vital role in deciding divorce cases. Marriages cannot be abruptly dissolved, so the rules and grounds for divorce need to be amended in accordance with societal changes.

Frequently asked questions (FAQs) about the “New Grounds of Divorce in India.”

1. What are the new grounds for divorce in India?

The new grounds for divorce in India include adultery, cruelty, desertion, conversion, mental disorder, venereal disease, and irretrievable breakdown of marriage.

2. Is adultery a valid ground for divorce in India now?

Yes, adultery is now recognized as a valid ground for divorce in India.

3. What does the term “cruelty” encompass as a ground for divorce?

Cruelty includes physical violence, harassment, mental torture, withholding financial support, or denying access to a child.

4. How long must a desertion period be to be considered a ground for divorce?

Desertion now requires a continuous period of one year to be considered a ground for divorce.

5. Was conversion recognized as a ground for divorce before the amendments?

No, conversion was not previously recognized as a ground for divorce in India.

6. What is the significance of the “irretrievable breakdown of marriage” as a ground for divorce?

It means that if a couple can establish that their marriage has broken down irretrievably, they can apply for divorce.

7. Is there a waiting period after filing for divorce under mutual consent?

Yes, there is a mandatory waiting period of six months from the date of filing for divorce under mutual consent.

8. How does the court determine child custody in divorce cases?

The court decides child custody based on the best interests of the child, considering factors like the child’s well-being and needs.

9. Can either spouse appeal a district court’s decision in a divorce case?

Yes, either spouse can appeal the decision of the district court to a higher court if they are not satisfied with the ruling.

10. Are there any specific grounds for divorce for live-in relationships?

Live-in relationships are not governed by specific divorce grounds, but legal provisions can be applied based on individual circumstances.

11. Is adultery punishable under the new divorce rules?

No, adultery is considered a ground for divorce, but it is not punishable.

12. Has “Triple Talaq” been recognized as a valid ground for divorce?

No, “Triple Talaq” has been declared unconstitutional and is not recognized as a valid ground for divorce.

13. Can a divorce granted under personal law override the Civil Court’s authority?

No, a divorce can only be ordered by the Civil Court, and any divorce granted under personal law is considered invalid.

14. How can couples with a child reach an agreement on child custody and support during divorce?

Couples can reach a mutual agreement on child custody and support, and the court will generally approve it if it’s in the child’s best interest.

15. Are there any changes in the grounds for divorce based on gender?

The grounds for divorce apply equally to both spouses, and there are no gender-based distinctions.

16. Can a divorce be granted immediately if both spouses agree to it?

Yes, in cases of mutual consent, the court can grant a divorce without a waiting period.

17. Can live-in partners claim maintenance under the new rules?

Yes, partners in live-in relationships can claim maintenance under certain circumstances, as per the Code of Criminal Procedure and Protection of Women from Domestic Violence Act.

18. How does the court determine alimony payments in divorce cases?

The court considers factors such as the duration of the marriage, the earning capacity of each spouse, and the standard of living during the marriage when deciding alimony.

19. Can a spouse be forced to wait for six months if they are certain about divorce?

The court has the discretion to waive the six-month waiting period based on the specific circumstances of the case.

20. What is the role of mediation in divorce cases?

Mediation is suggested by the court as a way to resolve disputes and reach a settlement amicably without going to trial.

21. Can couples with a prenuptial agreement follow it during divorce proceedings?

A prenuptial agreement can be considered during divorce proceedings, but the court will ensure it is fair and legal.

22. Are there specific rules for interfaith marriages in divorce cases?

Interfaith marriages follow the same divorce rules as other marriages under the applicable marriage laws.

23. Can a divorce case be filed immediately after marriage if there are grounds for it?

Yes, a divorce case can be filed if there are valid grounds, but the process may take time to complete.

24. How does the court determine property division in a divorce?

Property division is determined based on various factors, including ownership, contributions, and the needs of both parties.

25. Can a spouse deny access to a child during divorce proceedings?

Denying access to a child during divorce proceedings can lead to legal consequences. The court considers the best interests of the child in custody matters.

26. What happens to joint assets and debts in a divorce?

Joint assets and debts are typically divided equitably between the spouses during divorce proceedings.

27. Are there age restrictions for child custody decisions?

Child custody decisions are made based on the child’s best interests rather than age restrictions.

28. Can a divorce case be filed if one spouse is residing abroad?

Yes, a divorce case can be filed even if one spouse is residing abroad, as long as the jurisdictional requirements are met.

29. Can a divorce be granted if one spouse is missing or unresponsive?

Yes, a divorce can be granted if one spouse is missing or unresponsive, but specific legal procedures must be followed.

30. How can I find the right lawyer to help with my divorce case?

You can find a suitable divorce lawyer by seeking referrals, conducting interviews, and considering their expertise in family law matters. It’s essential to choose a lawyer who understands your needs and can provide the necessary legal guidance during divorce proceedings.

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