Divorce law: How it works

Do you need to get a divorce, custody of your child, maintenance, relief from domestic violence, or all of those things? Depending on your gender and financial standing, you could be spending anywhere between Rs 30,000 to Rs 30 lakh, and between six months and six years before you get a remedy.

Family battles do not involve complicated legal intricacies. They mostly operate at the level of common sense. But the primary strategy of each side is to drain the other’s resources to fight the battle by weaving a tangled web of interconnected legal claims. Marriage statutes such as the Hindu Marriage Act include a number of claims such as child custody, maintenance, etc. which can be attached to a divorce case, for instance.

There’d potentially be criminal charges of various kinds pressed against you if you’re the boy in the dispute.

Also, family battles are fought less through documentary evidence and more through circumstantial evidence. A good family lawyer will draft a long-winding petition that will weave a story of blood tears, and use many third-party witnesses to corroborate it.

There are some other key points you can keep in mind in each sub category of the family dispute.

Divorce: The basics

You’d be either mutually agreeing for a divorce or will be fighting for it in the courts.

The law prescribes a waiting period of 6 months after filing for mutual divorce, before you can be legally divorced. There is no complicated paperwork - a joint petition is required with two separate “Vakalatnamas”, two affidavits , two copies of your passport photo and a copy of your marriage ceremony's photo if any (In case you do not have a court registered marriage certificate). Personal presence of both spouses in court is mandatory on the date fixed for grant of divorce.

Husbands take note: whatever the terms of alimony and maintenance you and your divorced wife agreed upon, she cannot be denied her legal right to maintenance if she claims it later – even if she waived it at the time of the mutual divorce.

Uncivil divorce

If there is a dispute as to the divorce itself or as to its terms on maintenance and child custody, you’ll be contesting it in the courts.

The most-used trick in the book for any half-decent family lawyer, when women clients approach, is to advise them to intimidate the other side with threat of prosecution, for a quick and effective relief. This is the reason why the non-bailable Section 498A (cruelty to woman by husband and his family) is an overused provision in India.

However women beware that in states which have the Crimes Against Women (CAW) cell (For e.g., Delhi, Andhra Pradesh), it is not easy to bluff cruelty, and it is certainly not quick. The law requires that the police cannot be approached before approaching the CAW if it exists in your jurisdiction. And the CAW takes its own time (five to seven months) to assess the situation and attempt conciliation between both spouses.

Also, when divorce is contested in court, the court tends to repeatedly send the parties back for mediation and conciliation before a final ruling on divorce, if it sees the slightest possibility for this. So keep your stance tough.

If at any stage the spouses feel they want to drop the proceedings and go for divorce by mutual consent, they cannot simply convert their existing petition. They will have to file a fresh petition for mutual divorce and wait out the six months.

Child custody

The balance tilts away from the father in these cases, mostly.

Child visitation and custody battles involve immense distrust between the spouses, and spouses don’t normally remain on cordial terms once the custody of child is contested.

The courts will not allow the child to become a “shuttle” between both parents’ places of residence - visitation and custody will occur at the child’s place of residence.

Maintenance

This depends on earnings. Usually the court grants a little more than one-third of the husband’s monthly earnings to the estranged wife as monthly maintenance.

The court does not look into total assets of the husband for determining maintenance but liquidity is the vital factor in this determination. Therefore try to get as much documentary information on your spouse’s daily lifestyle, income and expenditure as can - and more! This strategy however proves weak when contesting a businessman-husband, because of hidden income and expenditure.

Maintenance cannot be a one-time settlement, therefore however much the alimony, the wife has a life-long right to maintenance unless she gets remarried.

Boys in live-in relationships beware: With increasing jurisprudence in favour of providing wife-rights to girlfriends in live-in relationships, a new extortive strategy – pressing rape charges – is frequently being used by girls these days to force a desired maintenance settlement under the threat of prosecution.

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