Oral Divorce Under Scrutiny

Jun 9, 2013 by Megala

With muslim men now resorting to Facebook, SMS, phone and email to unilaterally end their marriages, Indian women are starting to demand a ban on the practice.

Various women’s rights advocacy groups have fought this, in their eyes, unethical divorce method, but complain that so far the state has failed to even acknowledge that a problem exists.

According to Bharatiya Muslim Mahila Andolan (BMMA) spokeswoman Noorjehan Safia Niaz a codification of Muslim family law is required with the goal of stopping Muslim men abusing “unIslamic practices such as oral divorce’.

The press release issued by BMMA states that issues resulting from ‘talaq’ are exacerbated by the fact that the husbands in most cases fail to provide maintenance. As most women remain uneducated, their means are limited and whole families get caught up in a downward spiral.

The press release issued by BMMA states that decisions are based on the ‘whims and fancies’ of figures such as Mulla and Tyabji. Moreover, the qazi (stories of qazis who are paid by the husband to send divorce notices are rife) and ulemas can pass judgement and fatwas which are at odds with the Quranic and constitutional values. As a result, Muslim women suffer.

In fact, Noorjehan Safia claims to have hundreds of cases documented in which Muslim men abuse their power to divorce.  This has prompted them to demand the Ministry of Law & Justice and the Government of India to ban oral/unilateral divorce with immediate effect.

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Reasons to end a marriage – The frivolous, silly and downright bizarre

May 16, 2013 by Megala

Marriages are made in heaven; divorces curse the individual who made up that quote.

One could easily attribute the breakdown of marriages to the fact that a divorce is the culmination of low tolerance and misplaced egos. Fewer and fewer individuals are willing to make compromises at the cost of putting aside their personal desires.

Estranged couples now mock the old analogy that “a marriage means putting your partner’s needs before yours” when it comes to their role in the marriage justifying the importance of personal empowerment and freedom; however, consider it all-important when it comes to the romantic bravado of their partners. It’s like walking into a shoe store, picking up the most expensive pair of shoes, prancing right out of the store without paying and crying “thief!” in the middle of the mall when the salesman chases you down to get them back.

Pin-pointing to one absolute cause for a failed marriage is almost impossible, as it can be the outcome of a cluster of reasons – including grand romantic expectations induced from watching too many charming Tom Hanks and Hugh Grant movies. However, some of the causes for failed marriages can lie somewhere in the middle of the absolute absurd and bizarre spectrum.

Let us take a look at some of the most frivolous, comical, brow-raising and downright ridiculous cases of estranged Indian couples seeking divorce.

Status Disliked!

After only being married for two months, an Indian woman filed for a marriage annulment when she found out that her husband did not update the relationship status to ‘Married’ from ‘Single’ on his Facebook profile.

Questionable Purity

An Indian wife filed for divorce from her husband after a year of marriage, citing that her husband refused to have a bath for the entire time they were married because he believed it was a part of his penance after his parents forced him into marriage and give up his dreams of becoming a priest.

The Unintentional Nightmare

A Muslim husband in India uttered the term talaq (divorce) thrice while talking in his sleep. As his wife was in his presence sleeping beside him, it was enough to constitute as legal divorce as per the Islamic Law, despite the couple unwilling to separate. Perhaps sleep walking would’ve been a better problem than sleep talking.

Are You Not Entertained?

An Indian wife filed a divorce petition stating that she was tired of her professional stage performer husband’s embarrassing antics for public entertainment, such as cross-dressing and cracking crude jokes.

Nagging Knows No Bounds

10 years back, an Indian husband filed for divorce on the grounds that his wife had an irrepressible habit of nagging constantly which he had endured for 12 years of their marriage. Remember, nagging spouses are only comical in fiction.

Honeymoon Horror

The fear of not getting along well with your in-laws is one of the common fears of Indian wives. However, an Indian wife filed for divorce when her husband insisted on taking his mother along for their honeymoon trip. Perhaps living up to your “momma’s boy” reputation isn’t the best idea on a romantic trip with your wife.

It’s a dog-eat-dog world!

An Indian woman filed for divorce citing that her husband, an avid dog-lover, would spend more time grooming and taking care of their pet dog than spending time with her.

The worst reconciliation is better than the best divorce. Couples with high expectations should sort out and set straight their priorities before diving into the uncharted waters of marriage when dangerous creatures of insecurities are swimming beneath them.

Dividing the assets. Quite possibly a more terrible affair than the actual marriage.

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Divorce in India for dummies

Feb 26, 2013 by Megala

Divorce from A to Z – Read this article in its entirety and you will know how to tackle a divorce case from start to finish!

Life doesn’t always pan out the way one envisioned it and our choices do not always yield the result one was expecting. Unfortunately, unhappy marriages are all too common in India and a growing number of individuals and couples resort to getting a divorce. A divorce is one of the hardest and life-transforming decisions one can make in a lifetime and it pays dividends to be up to speed with the procedures before they commence.

The judicial system has a vested interest in protecting the institution that is marriage so it is only to be expected that certain legal barriers are erected to prevent marriages from being annulled on a whim. For this exact reason, Indian family courts demand a reason be given for a divorce. An example could be adultery, cruelty, desertion or even impotence (the inability to ‘consummate’ the marriage). These reasons, or grounds for divorce can also be considered ‘crimes against marriage’ or ‘matrimonial offences’.

For clarity it should also be stated that a variety of  marriage laws exist to cater for India’s diverse population. When dealing with a divorce based on matrimonial offences  one should refer to the legislation applicable to one’s faith, religion or race. For example, Hindus adhere to the  Hindu Marriage Act whereas Muslims abide by the Muslim Marriage Act. In fact, there a few more laws in effect that pertain to a particular Indian demographic. In short, different rules apply to different races and religions.

A common misconception in India is that it takes years for a divorce to be granted. This is not necessarily true as a ‘divorce by mutual consent’ can be wrapped up in a matter of 6 months. A ‘divorce by mutual consent’ or ‘no-fault divorce’ is basically when both spouses decide to mutually end the divorce despite no clear violation of marriage laws. This is better known as divorce due to ‘irreconcilable differences’ in other countries.

A divorce by mutual consent is a straight-forward affair that consists of both parties coming to a mutual agreement on the terms on which they agree to part ways. This is then reviewed by the Family Courts and finalised in 6 months.
If the decision to part is not a mutual one, the divorce procedure will change to a ‘contested’ divorce. This has some major legal implications and will complicate the process and increase the duration of the court proceedings.

Before we delve deeper into contested divorces it is worth noting that only the resident state of both spouses or the state where the marriage was legally registered possesses jurisdiction over their divorce matters. This is the only location where divorce papers or petition should be filed, regardless of it being a mutual consent case or a contested case.

Contested Divorce Proceedings

Step 1. Collect data and start building your case. Hire a solicitor.

You need to determine on what grounds you are seeking divorce and you need to start collecting evidence that will underpin your case. Start collecting information regarding your marital problems along with copies of your important personal documents such as tax statements, property and asset details. In this day and age of new media, also consider that photographs and videos are admissible in evidence and don’t forget that your spouse’s emails/chat logs/Facebook updates/tweets can be presented in court too! These might become the deciding factor when trying to prove adultery or cruelty.

Step 2. File a petition.

The divorce procedure officially starts when a spouse files a petition for divorce via a lawyer and a divorce notice is sent out to the other party. The purpose of a divorce notice is to clearly specify the reasons for seeking divorce and the violation of any grounds and proof of the committed violations. It must be acknowledged personally by the spouse who receives the notice with his/her signature.

Step 3. The court case and possible counselling.

The court case will commence with both parties in attendance (bi-parte) or with one spouse missing from the proceedings (ex-parte). In case of a bi-parte case the courts typically would send the couple to counselling or a mediation service and impose a waiting period. Remember, the Indian courts really don’t want you to divorce! This might lead to re-unification or an amicable split/divorce and negate the need for elaborate court proceedings.

Step 4. The hearings and examinations.

Once this waiting period expires and the spouses have not resolved their dispute, they are granted a hearing in court and the divorce proceedings resume. Examinations will take place followed by cross-examinations. The ultimate goal of these proceedings and interrogation techniques is to uncover the truth.

Note: In reality this step is a bit more complicated than explained here. It is important that one is informed by their solicitor on the correct procedures before the hearings take place.

Step 5. Try to settle out of court.

Complex issues such as child custody, child support, alimony, division of assets etc., are usually recommended to be mutually settled out of court; as they may further elongate the already tedious process of divorce if opted to be settled legally by the court itself.

Step 6.  The verdict.

After extensive evaluation of the case and after listening to final arguments of both parties, the court issues a divorce verdict and both spouses are given a copy of the court judgement for record-keeping purposes. The civil court verdict for divorce is final and cannot be contested in higher courts.

Step 7. Contest the decree.

The Court’s final verdict is drawn up in a ‘decree’. The contents of this decree may be contested by appealing to the High Court and subsequent Supreme Court.

Conclusion

The duration of a contested divorce ranges between 2 to 4 years, possibly longer if contested aggressively The divorce process in India is extremely challenging and can prove to be very draining – both emotionally and financially. However, adequate preparation and foresight while planning your divorce can help relieve the tedious legal divorce process in India; and help you transition to a post-divorce future more easily.

 

 

Disclaimer: this article is for general information purposes only. Always consult a solicitor before you proceed with a divorce. Your situation might need a different approach.

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Divorce laws in India – What you need to know

Feb 25, 2013 by Megala

Before making a legitimate case, it is important to familiarize yourself with the legal grounds for divorce and the essential follow-through you will have to undertake once your decision is absolute.

Despite Indian statistics still hinting a tremendously high marital success rate in comparison to other countries across the world; the truth of the matter is that with speeding urbanization and educational awareness, more estranged partners are opting to go for a divorce rather than have a lifetime of misery. With female empowerment on the rise in the traditionally male-dominated society of India,more women have started seeking independence from unsatisfying marriages; causing the divorce rate to rise sharply.

However, it is quintessential for estranged couples to recognize the seriousness of divorce and its
implications before going ahead with the process. Before making a legitimate case, it is important to
familiarize yourself with the legal grounds for divorce and the essential follow-through you will have to
undertake once your decision is absolute. Due to the vast diversity in the religious beliefs of the Indian
population and the secular outlook of the Indian constitution, the Indian judicial system has recognizes
the validity of a variety of divorce laws based on individual religious beliefs. The Hindu Marriage Act,
1955 encompasses the divorce laws followed by all Hindus, Buddhists, Parsis and Jains; whereas
Christians and Muslims can initiate divorce proceedings as per their own respective marriage acts –
Indian Divorce Act, 2001 and the Muslim Marriage Act, 1939.

The following are the common grounds for divorce as stated in the Indian Divorce Act, 2001 and the
Hindu Marriage Act, 1955.

• Adultery – Voluntarily engaging in any sexual relations with a partner without marital consent qualifies as adultery.
• Desertion – Deliberate abandonment of a spouse for a time of two years or more is known as desertion according to marital laws.
• Impotence - A medical condition – physical or psychological – that renders a partner
• Incapable of performing sexual intercourse is termed as impotence; which can be used as a ground for divorce by a partner in court.
• Cruelty – Inflicting any kind of intentional mental or physical damage that endangers the health of your spouse can be termed as cruelty, and used as grounds for divorce.
• Mental Insanity – An irreversible mental health condition of permanent nature acquired before or after marriage can be used as grounds for divorce.
• Venereal Disease – Any dangerous and life-threatening transmittable diseases acquired by a spouse can be used as a ground for divorce by a partner seeking security for their own health.
• Leprosy – An incurable and highly contagious diagnosis of leprosy which puts the health of a spouse at risk can be used by a spouse to file a petition in court seeking divorce.
• Religious Conversion Without Consent – The religious conversion of a spouse without the consent of his/her partner can be used as a ground for divorce by their partner.
• Permanently Missing – A spouse who has been reported missing without any evidence supporting his/her survival for a continuous period of no less than 7 years, is “presumed dead” by the court; and a partner who wants to marry again can lawfully file for divorce.

According to Islamic Law, a Muslim male has the authority to divorce his wife with a simple verbal
declaration (talaq) in a sober mental state, with or without the consent of his wife, in order to end the
marriage.

A Muslim woman however, can seek divorce under certain specific grounds as provided in the 1939 Dissolution of Muslim Marriage act.

• Husband is missing for at least 4 years.
• Husband has deliberately deserted his wife or faces imprisonment for at least 7 years.
• Husband is incapable of committing to important marital duties.
• Impotency.
• Marriage before legal age of consent.
• Physical or mental acts of cruelty.

 

Note from author: this article has been superseded by Divorce Laws India – What you need to know. Please refer to this article for a more in-depth look at divorce procedures in India.

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After the big break: pure bliss or a life of shame and hardship?

Feb 7, 2013 by Megala

Life after a divorce is tough. There are a number of social and economic issues that have to be contended with once a marriage is over.

Many have to deal with financial woes following a split, especially the homemakers who have never been in a situation before where they had to fend for themselves financially. Very often there are children involved. Raising infants is a difficult task for single parents. Divorce takes its toll and the scars that are left after a difficult breakup are forever there. Unfortunately, often there is simply no time to give in to the feelings of bitterness, pain and insecurity. The result is that issues are not dealt with accordingly, subsequently leading to psychological and economical hardship.

A divorcee will inevitably go through a plethora of emotions following a split and typically they will try their best to hide it. A person’s confidence takes a hit and feelings of remorse, humiliation, depression and insecurity take over.

This is exacerbated by India’s ‘custom’ to place blame on divorcees for the failed marriage. If the bond is broken someone needs to be held responsible. In some cases this naming and shaming can lead to family members becoming outcasts.

Women suffer from a unique set of issues following divorce, most notably: depression. Depression can surface when one indulges in binge eating and the excessive intake of alcohol. The other tell-tale signs of depression are when one suffers from sleeplessness and chronic fatigue. When the signs are there one needs to be professionally treated sooner rather than later.

It is important to immediately commence a new life after divorce and not wallow in the past. Once the papers have been signed the relationship should be truly considered a thing of the past. Temporary reunification for the sake of guidance, support or perhaps sex is not recommended. One should be careful not to cling to the other half and one should resist reaching out to the other half in times of crisis.

A divorce has a distinct effect on one’s self-esteem and confidence, it will take a hit. People are simply unsure about themselves and other and it might hamper their ability to start a new relationship. This confidence will soon trickle back but it can help to seek psychological help if the issues persist.

A divorce is often seen as one of the most dramatic events in a person’s life. Although it sounds like a cliché, it pays dividends to get back into the swing of things as soon as possible. Re-acquaint yourself with friend and family and become socially active. Being sociable is typically the last thing on a divorcees mind, but it sometimes it needs to be forced. Don’t wallow in guilt and don’t hide from your feelings. Accept that issues exist in your life and deal with them, don’t push them away. This should see you back in business and perhaps back into a worthwhile relationship too!

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