In Kolkata, a couple can obtain a divorce in one of two ways:
- By Mutual Agreement or Mutual Consent
- Without the presence of Mutual Consent
Divorce that is mutually agreed upon
When both the husband and woman voluntarily agree to end their marriage, both the married couple can file for divorce in the courts. The marriage will not, however, be immediately dissolved by the court. It is important to establish that both the married pair have been living separately for at least a year or two for the divorce petition to be accepted.
Sometimes a divorce petition is filed not because of a disagreement between the husband and wife, but because the pair is unable to support themselves financially. In these instances, a couple might seek divorce by mutual consent.
There are three aspects between husband and wife when they are seeking divorce:
- The first consideration is the minimum and maximum amount of time that the couple requires assistance from the other pair.
- The second point to consider is child custody. When a couple divorces by mutual consent, it is up to the couple to decide who will have custody of the child. Custody can be joint or exclusive, depending on the spouses’ agreement.
- The third consideration is property, specifically how many shares of the property the husband will receive and what the wife’s part will be.
Varying laws provide different time limits for the law of dissolution of marriage to take effect. To commence divorce procedures, both the husband and wife must have lived separately for a minimum of one year, according to Section 13B of the Hindu Marriage Act, 1955. However, for Christians, the timing is different since, according to Section 10A of the Divorce Act of 1869, a spouse must live separately for a minimum of two years before filing for divorce. Living apart does not imply that the couple must reside in separate areas. It is sufficient to show that they were not living as husband and wife even though they were living together.
Divorce without mutual consent
If one of the spouses want to divorce without the permission of the other, he or she must provide a valid reason for the dissolution of marriage. The following are some of the reasons for this:
Cruelty can be physical or mental, and if one of the spouses believes that the other couple’s behavior toward him or her is likely to cause some type of injury, whether mental or bodily, then this is a valid reason to seek dissolution of marriage.
Adultery was previously a criminal offence in India, but it was decriminalized in a recent supreme court decision, while it is still a good enough reason to divorce the adulterous spouse. The majority of the time, it is husbands who commit it rather than spouses.
If one of the spouses deserts the other one without giving any reasonable reasons then it is a good reason to obtain a divorce from the other. However, the person who abandons the other spouse must have the intention to desert and have the proof for it as well. Under Hindu law, the dissertation must have lasted for at least two years, but under Christian law, there is no such time limit and a petition of dissolution of marriage can be filed just by claiming that the other spouse has committed desertion.
A spouse’s conversion to a different religion is another basis to seek divorce from the other. There is no requirement that a certain amount of time has passed before filing for dissolution of marriage.
If a spouse is unable to fulfil the usual tasks of his or her job owing to a mental disease or problem, divorce may be filed. However, if the mental condition does not prevent the person from carrying out his or her responsibilities, the divorce cannot be sought.
Renunciation of the World
If one of the couples decides to give up the world and become a sanyasi, the aggrieved spouse might file for dissolution of marriage based on the spouse’s renunciation.
Death as a Presumption
Adultery was once a criminal offence in India, but it was decriminalized in a recent supreme court decision, although it remains a valid cause for divorcing the adulterous spouse. Husbands, not wives, are the majority of the time the ones who do it.