Theme: Divorce for Hindus

Re-marriage after Divorce under Hindu Marriage Law

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.

Maintenance or Alimony in Hindu Marriages

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.

Temporary Separation in Hindu Marriages

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.

When can you file for a Hindu Divorce?

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.