In a situation where the spouse who filed for divorce dies, the divorce proceeding would be discontinued and therefore you would be a widow, not a divorcee. A divorcee is a divorced person.
In a situation where you have filed for divorce and your husband dies, the divorce proceedings may not necessarily be discontinued because certain legal obligations continue after his death. Therefore, your case for divorce can continue and you may claim maintenance from the legal heirs of your husband. Depending on the decision of the court, you will not only be a widow but also a divorcee.
Yes, the Court can order you to pay her temporary maintenance. It does not matter if she has earning capacity or not or whether she is qualified or not. If she does not have any source of income during the course of the proceedings, she can make an application for temporary maintenance and the Court can grant her the same.
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The law on marriage recognizes emotional and marital needs; this includes many legal obligations such as owning property, taking care of your children, etc. When you end your marriage, the marital relationship comes to an end. Some legal obligations may continue to exist.
Marital Relationship
The law understands a marital relationship to include:
- Emotional Support
- Sexual Relationship
- Children and Domestic Responsibilities
- Financial Support
Legal Obligations
You and your spouse have certain legal obligations throughout your marriage. Some of these obligations may continue even after a divorce takes place.
Examples of these legal obligations are:
Alimony or Maintenance
- The Court may sometimes ask you to pay money to your spouse and this is a legal obligation you will have to incur after divorce. This is known as maintenance.
Parental Responsibility
- The Court may decide who will have custody of your children and how to take care of them financially.
Divorce is a final and irrevocable act of separating from your spouse. There are other forms of separation that are not as final.
If there has been a valid marriage you can file for a divorce. However, if the validity of your marriage is in question then you still have to approach the Court to separate legally through separation by annulment.
Approach a Court
You have to go to Court to file a divorce case. While the divorce case is going on, you will continue to have certain duties towards your spouse and children such as giving financial support to them.
Sometimes in a marriage, you may want a divorce (while your spouse doesn’t) due to certain circumstances. If these circumstances are recognized by the law (cruelty, mental illness) you can apply to the Court to hear you.
Your spouse can deny these reasons and tell the Court why he or she does not want the divorce.
Under the law, you can file for divorce only after one year of marriage.
One Year Period
If you want to file a divorce against your spouse, then under the law you have to wait for a period of one year from the date of the marriage to file for a divorce.
For example, if Jitendra and Vahida got married on the 9th of January, 2018, Jitendra has to wait till at least 9th of January, 2019 if he wants to file a divorce against Vahida.
Exceptions to the One Year Period
Although the law gives a waiting period of one year, there are certain reasons by which the parties can go to Court before this time limit, such as:
- Exceptional hardship to one of the spouses. For example, if your husband or wife is physically abusing you every day, then you can go to Court to file for a divorce.
- Exceptional depravity to one of the spouses. For example, if your husband or your wife is asking you to do humiliating sexual acts.
If neither you nor your spouse want to continue the marriage, you have the option to apply for a divorce by mutual consent.
You and your spouse can go to Court if:
- Both of you have been living separately for more than one year.
- Both of you have not been able to live together.
- Both of you have consented to end your marriage.
Under the law, you can file for this kind of divorce only after one year of marriage. After filing, the Courts will give you a minimum period of 6 months up to 18 months to reconcile with your spouse and withdraw your petition if you wish to do so – to reflect on whether or not both you and your spouse truly want to pursue the divorce.
For example, if Jitendra and Vahida got married on the 9th of January, 2018 and they want to divorce each other, they have to wait till the 9th of January, 2019. After filing the case on 9th of January 2019, the Courts will give them 6-18 months time to decide whether they want to pursue the divorce.
This minimum period of 6 months time limit is not a strict rule as Courts in India have waived the time limit in cases where:
- There is no chance of you and your spouse reuniting.
- All efforts of mediation and conciliation between you and your spouse have failed.
- You and your spouse have settled all issues that normally arise in divorce proceedings, such as maintenance, custody of children etc.
- If the waiting period after filing the case of 6 to 18 months, prolongs your agony and suffering.
- When you have filed a case against your spouse for divorce, and then later both you and your spouse decide to mutually divorce each other.
Both you and your spouse can file a case to the Family Court. There are separate courts known as family courts which deal with divorce cases. You can approach a family court in the following areas:
Your Place of Marriage
Either you and your spouse can file for divorce in the Court of the area where your marriage ceremony took place, i.e, where your marriage was solemnized.
For example, if you and your spouse got married in Mumbai, then you can file a case at the Family Court in Mumbai.
Your Spouse’s Residence
You can file a case in the Court of the area where your spouse resides. For example, if you are filing a case against your wife who lives in New Delhi, then you can file a case in the Family Court in Delhi.
Your Last Place of Residence Together
Either you and your spouse can file for divorce in the Court of the area where you both last lived together. For example, if you and your spouse last lived together in Delhi, then either of you have the option of approaching the Family Court in New Delhi.
Your Place of Residence
Wife
If you are filing a divorce case against your husband, then you can go to the Court in the area where you are residing.
For example, if you are living in Bengaluru, you can file a case against your husband in the Family Court of Bengaluru even if your husband is not living there.
Both
If your spouse has gone abroad you can file it in your place of residence.
However, please consult your lawyer while filing the case in Court.
Cruel Behavior is a ground of divorce under Hindu Marriage Law. Cruelty is behavior or conduct which causes harassment to you. Cruelty may be in two forms:
Physical
- If your spouse physically hurts you by causing any bodily harm, then you can go to the Court to ask for a divorce. This kind of behavior amounts to physical cruelty. It is easier to prove this in Court.
Mental
- If your spouse is causing you mental distress, because of his or her conduct or words, then this kind of behavior amounts to mental cruelty. For example, if your spouse abuses you verbally or your spouse harms your reputation in front of your friends and colleagues etc. Mental cruelty is more difficult to prove in Court as compared to physical cruelty.
The act of cruelty is gender-neutral, meaning, a husband can file the case against the wife for cruelty and vice-versa.
You can file for a divorce if your spouse has cheated on you, i.e. when they have had voluntary sexual intercourse with another person. This is also referred to as adultery.
To get a divorce, you will have to prove that voluntary sexual intercourse took place between your spouse and another person.
Till recently, cheating was a crime. It is no longer a crime. However, you can still file for divorce on the grounds that your spouse has cheated on you.
If your spouse has left you then you can file for a divorce. This is known as desertion.
Immediate Effect of Desertion
Desertion can happen if your spouse has left you with immediate effect with an intention to never come back to stay with you as your spouse, without you agreeing to this arrangement.
This will only be understood by the Courts on a case by case basis. It is important to note that if your spouse has temporarily or in the heat of the moment left you, without actually intending to abandon you, this will not amount to desertion.
For example, if you had a fight with your husband and he leaves the house in anger then it does not mean that he has deserted you.
Causing Desertion
However, it is important that you have not created such a circumstance that any reasonable person would find so difficult to bear with that would have had to desert you. If you have created such a circumstance then the courts may not consider your case for desertion.
Other Ways of Desertion
Apart from a single act of leaving you, desertion can happen over a period of time through a course of conduct or through repeated behavioural patterns.
If your spouse has slowly withdrawn from you and your social circles (for example: stopped all interaction with you and your family though he/she may live with you) and has stopped behaving as any spouse does in a marriage (for example: refusing to financially contribute to a household since and contribute in any other way to the household) it can be understood as desertion. In such a case the spouse doesn’t have to physically leave you. Depending on the circumstances of each case, the Court can consider the desertion to begin when such behaviour started.
The Court will look at all the facts and circumstances to understand each specific case to decide on granting a divorce.
Time Period for Desertion
In order to claim desertion as a reason for divorce:
- Your spouse should have deserted or abandoned you for two years.
- This two year period must be continuous.
For example, Karan left his wife, Vijji, in January 2016, but changed his mind and came back to be with his wife in July 2017. Vijji cannot go to Court to file for a divorce for this reason as the two year period was not continuous.
If you are in a Hindu marriage, the mental illness of your spouse can be a ground for divorce.
You can file for divorce if:
- Your spouse is suffering from any mental disorder that is not curable; or
- Your spouse has a mental disorder that occurs intermittently or continuously and this illness affects your capacity to live with them.
It is important to note that a few strong instances indicating a short temper and somewhat erratic behaviour on the part of your spouse may not amount to or be indicative of a mental disorder.
Divorce can only happen if your spouse’s mental disorder would lead to the behaviour of such a kind that you cannot reasonably be expected to live with him or her.
You can even ask the Court to direct your spouse to undergo a medical examination to ascertain that he or she is suffering from an unsound mind to prove your case.
Conversion
You can file for divorce if your spouse has undergone conversion to another religion and has ceased to be a Hindu.
File a Case
It is very important to note that since your spouse has converted to another religion it does not automatically end your marriage to them. You must still file for divorce.
Even if your spouse has converted to another religion the divorce proceedings will happen under the Hindu law and not the religion your spouse converted to. This is because your marriage to your spouse happened under Hindu law.
Marrying before Filing for a Divorce
Till the divorce has been finalized by the Court your marriage will continue to exist with your spouse. Your spouse cannot marry before this and such marriage will not be a valid marriage in law.
Punishment
If your spouse marries again without getting a divorce from you then you can charge them with the offence of bigamy which is punishable with up to 7 years jail time and a fine.
The proof that your divorce has happened is the Court’s final order known as ‘decree of divorce’. This is in the form of an order, which is a document that enforces your divorce.
A decree of divorce is final when either of the two happens:
- The spouse who is unhappy with the decision of the Court has already appealed the decree of divorce within 90 days, and the Court has dismissed that appeal.
- There is no right to appeal.
Please consult a lawyer for more information on this.
In all family law cases, Courts encourage an attempt for reconciliation between the spouses.
Consequence of Reconciliation
After reconciliation happens, either:
- You and your spouse can get back together and continue your marital relationship, or
- You and your spouse can decide to end the marriage peacefully and divorce each other.
There are three kinds of reconciliation methods in India:
Mediation
- Mediation is a process of resolving conflicts by identifying their causes and then making a strategy to address them. This is done by a mediator who is a person either appointed by the Court during the divorce proceedings or is assigned from a Mediation Centre which is located near the Court.
Conciliation
- In Conciliation, a person known as the conciliator is appointed. His role is to persuade the parties to arrive at a solution suggested by him during the course of the discussions.
Counsellor in Family Courts
- A counsellor is a person whose job is to provide advice, help, or encouragement to solve problems during divorce and other family matters. A counsellor is a person appointed by a Family Court to find out:
- The reason why or if you and your spouse are incompatible for each other.
- Whether the incompatibility can be fixed by any psychological or psychiatric assistance from doctors.
- Whether you and your spouse are under the influence of anybody else to divorce each other.
- Whether you and your spouse are taking free and independent decisions regarding the divorce.
If you want to remarry, you have to wait for 90 days from the date of the Court’s final order, so that your spouse has time to ‘appeal’ against the Court’s decision.
Under the law, you can remarry right after getting the decree of divorce when:
- The spouse who is unhappy with the decision of the Court has already appealed the decree of divorce, and the Court has dismissed that appeal.
- There is no right of appeal against the decree of divorce.
- Where you and your spouse have settled all issues regarding the divorce such as children, property etc. and both of you have decided not to file any more cases.
Please consult a lawyer for this.
You can get a specific amount of money based on a Court order from your spouse. This can happen only if you do not have any sufficient means of income to sustain yourself or your children. This amount is called maintenance or alimony.
The Hindu divorce law on maintenance is gender-neutral. This means that an application for temporary or permanent maintenance can be filed either by the husband or wife.
Temporary Maintenance
During the course of the divorce proceedings, if you do not have independent income to support yourself and/or your children or to pay the necessary legal costs of the case, you can apply to the Court to direct your spouse to pay you a sum of money as maintenance. The Court will set a reasonable amount, which has to be paid monthly, as temporary maintenance after considering the income and paying capacity of the other spouse.
Permanent Maintenance or Alimony
Along with your divorce case, you can make an application to the Court for permanent maintenance to be paid by your spouse either monthly, periodically or in lump sum.
The Court can order such amount to be paid as maintenance keeping in mind the lifestyle that you enjoyed in your matrimonial home and considering the income and paying capacity of your spouse.
This amount can even be modified at a later date if either of your circumstances have changed. For instance, an increase in educational expenses for children, an increase in salary or standard of living of the paying spouse, etc. could result in an increase in the maintenance amount.
If you are getting maintenance monthly or periodically, then you will get it only till you remarry. It can even be revoked if you do not remain chaste (in case of a wife) or have sexual relations with another woman (in case of a husband).
It is important to note that permanent alimony cannot be granted to you if the main petition requesting a divorce, judicial separation, etc. under Hindu law has been dismissed or withdrawn.
Apart from divorce, which has a certain finality to it, you and your spouse can even opt for a decree of judicial separation to better understand if you want a divorce.
Through this measure, the Court orders that you have been officially separated temporarily.
Judicial Separation does not have the same legal effect as divorce. This is because your marriage continues to exist. You cannot remarry legally during judicial separation.
You can apply for a decree of judicial separation for the same reasons as that of divorce. But it will not have the same effect as it does for a divorce. You will continue to be a married couple that lives separately.
After the order for judicial separation has been passed, you and your spouse can exercise one of the two following options:
Option I: Cancelling the Order of Judicial Separation You can approach the Court to cancel this order. You are able to reconcile with your spouse and get back together and live as a married couple after cancelling this order.
Option II: Get a Divorce After one year of receiving the order for judicial separation, if you and your spouse believe that there is no possibility of reconciliation you can file for divorce.
During this period you are entitled to alimony from your spouse. Please read this for more information. Further, the Courts will decide on the question of custody of children.
You can only file a divorce case if you have a reason recognized by Hindu law. These reasons can vary from ill-treatment by your spouse to your spouse suffering from a mental disorder.
In India, the law provides for specific reasons under which you can file for a divorce.
Ill-Treatment
- When your spouse has been cruel towards you.
- When your spouse has had sexual intercourse with another person.
- When your spouse has left you.
Illness
- When your spouse is suffering from a venereal disease that can be spread to you.
- When your spouse has a mental disorder.
Absence of Spouse
- When your spouse has withdrawn from you.
- When your spouse has been presumed to be dead for 7 years or more.
- When your spouse has renounced the world by entering any religious order.
- When you and your spouse have not gotten back together for more than a year, even after a decree for judicial separation was passed by the Court.
- Even after the Court has passed an order asking you or your spouse to resume your marital obligations, it hasn’t been done for over one year.
Conversion
- When your spouse has converted to another religion.
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