Child custody laws related to divorce in India:
One terrible consequence of a divorce is the long drawn legal battle for child custody. Child custody is best defined as legal guardianship of a minor child. Most of the times, the decision of the child’s custody is based on the welfare and whenever possible, the happiness of the child. Child custody is the subject of legal battles, and it is the responsibility of the court to rule in a just and fair manner, keeping in mind the welfare of the child(s).
In most cases, the parties are able to agree upon joint custody, wherein the child stays with one parent. The parent with physical custody of the child is responsible for the child’s basic needs: food, clothing, shelter, in addition to other requirements such as education, medical needs, etc. The other parent has visitation rights, too. Both parents continue to share legal custody of the child, though. Legal custody means that either parent can make decisions about the welfare of the child, emergency and non-emergency medical treatment, etc. Based on special cases, one- sided custody is granted.
Laws relating to child custody in India:
In the eyes of the law, the welfare of the child is of paramount importance. Most of the times, the welfare of the child is the basis of the custody ruling. All personal laws in India have provisions to deal with child custody-
The Hindu Minority and Guardianship Act of 1956, and The Guardians and Wards Act 1890 deal with child custody under Hindu personal law. The GWA is a secular law that is applicable to all child custody proceedings regardless of caste, religion, etc.
- A child of “tender age” should stay with the mother.
- A grown up male child should live with the father.
- A grown up female child should ideally live with the mother.
These are not hard and fast rules, and there are some exceptions according to circumstances.
The Hindu Minority and Guardianship Act of 1956 state that a child younger than five years of age should ideally be in the mother’s custody. However, no such provision is mentioned in Hindu personal law.
Under Muslim laws, the mother always has the first right to child custody. This right can be invoked against the father in the custody proceedings too. However, the mother has to be of the perfectly sound mind and not be guilty of any misconduct.
In the case of a son, the mother has the first right of child custody. There are different customs for different sects of Islam, with respect to age of the child. Some sects believe that the mother’s rights are valid only until the time the son is 7 years old, while other sects go on till the age of puberty.
In the case of a daughter too, there are different figures in various sects. Some state that a mother’s right to her daughter’s custody is till she attains puberty, other sects state that the right continues till the girl is married.
The father is given custody after the mother’s right of child custody expires. The father is also given custody if there are no female members to take care of the children.
There are no provisions in Christian Law relating as such to child custody. However, the provisions of Indian Divorce Act, 1869 apply to child custody. The law states that the court has the right to determine the custody rights, keeping the child’s welfare in view. The court can also place the child under its own protection.
Custody is decided upon under the provisions of the Guardians and Wards Act, 1890. The child is not automatically placed in the custody of a particular parent. Custody depends on various factors. By extension, the welfare of the child is of paramount importance.
Marriages and Divorce in India
Marriage is an institution wherein two individuals agree to co-habit and possibly also procreate. Marriage is a civil contract that governs the cohabitation of a male and a female. Over the course of centuries, marriages in India have had lots of customs and traditions. A few among them being “Swayamwara” where the girl chooses her own husband, and the system of dowry. Traditionally, marriages couldn’t be dissolved no matter what the circumstances. Marriage was a “bond that was not broken even by the husband’s death”. India has had its fair share of inhuman customs related to marriage, such as Sati, or self-immolation.
Hindu Marriage Act, 1955
In modern times, the Hindu Marriage Act of 1955 governs all Hindu marriages and divorces in India. The Act lays down certain conditions for two people to get married-
- Neither of the two must have a living spouse at the time of marriage.
- Both parties involved are legally sane and by extension, not lunatic.
- Originally, the Act specified the minimum age of marriage as 18 years for the groom and 15 years for the bride. However, now the legal age for marriage is 21 years for the groom and 18 years for the bride.
- The parties involved cannot be within degrees of prohibited kinship. This includes blood relations and relations through marital alliance. However, there are exceptions, according to customs.
- The parties are not “sapindas” of each other, except in cases where it is allowed by customs and traditions.
Divorce Procedures & options in India
Marriages are made in heaven. But, not all marriages last forever. Due to some personal differences or other reasons, the couple might drift apart from each other. Divorce can be defined as the legal dissolution of marriage. However, traditionally a marriage was considered to be “an inseparable bond” and dissolution of marriage was practically impossible. The Hindu Marriage Act of 1955 also deals with divorce.
Section 13 of the Hindu Marriage Act regulates divorces among Hindus in India. The Act grants couples the right to separate if any of the following conditions are satisfied-
- The other party partakes in adultery.
- The other party in marriage is no longer a Hindu, due to conversion to another religion.
- The other party has been declared insane and it is not reasonable for both parties to co-habit.
- The other party has been suffering from incurable leprosy for at least three years.
- The other party has venereal and communicable disease.
- The other party has not been heard of as being alive, for at least seven years.
- The couple has not resumed living together after two or more years, after decree of judicial separation has been passed.
- The other party has renounced worldly affairs for religious purposes.
Apart from the above-mentioned provisions which can be used by both men and women, there are a few provisions that are reserved for women exclusively-
- The wife can also file for divorce if the husband has remarried or already has a living spouse.
- The husband is guilty of rape, sodomy, etc.
The Bottom Line:
Separation and divorce stem from feelings that cohabitation is difficult on an emotional and/or physical level. There is still a lot of social stigma in India about divorce and separation. The first step that a couple needs to take, is to accept that the marriage is over. If a marriage doesn’t yield happiness, it is the right of both parties to file for a divorce.
What To Expect When Hiring A Divorce Lawyer
Hiring a divorce lawyer can be a long and arduous process. You need one fast, yet you still have to qualify which ones you think are right to handle your case. More often than not, people also have no idea what to expect when hiring a divorce lawyer. The phone calls, consultations, legal bills, and overall pressures of the situation can leave people beside themselves with no one else in the World to turn to but their divorce attorney. This is why hiring the right one is so crucial, and you need to know what to expect when hiring a divorce lawyer.
Staying in Contact
One of the best traits that a lawyer can have is constantly keeping you in the loop. There are not many worse feelings than going through divorce proceedings and you barely hear from your attorney during the process. The best lawyers keep you updated with the progress of your case and even just take the time to give you a phone call or email to see how you are going.
Advising on Expenses
Almost everything you do with a lawyer is going to add to your bill. While many lawyers are happy to provide some aspects of their job pro bono to you, sometimes even just calling your lawyer for a few minutes can cost you. All good attorneys will advise you straight away on the first point of contact what is going to cost you and what is in the provision.
Attempting to Settle
A lot of divorce cases end up settling out of court. This is a far more quicker and painless process to go through and is often what lawyers aim to do in order to avoid a lengthy and strenuous court battle. Your lawyer should be diligently striving to work out a settlement with the other side that can meet the needs of everyone.
The best lawyers set out to dig up as much dirt as they can on your soon to be ex-partner. While there are rules and laws that they must follow when doing this, some of the information that they discover can completely turn a case in your favour and even result in a faster positive outcome for you. This method can also substantially reduce your costs because a settlement or judgment can be reached faster by employing tactics such as subpoenaing other parties for depositions.
Preparing For Trial
This is the worst case scenario that could happen. Sometimes the other side doesn’t want to co-operate and can be very stubborn no matter what good offers or solutions you put to them. Your lawyer won’t be afraid if the other side wants to take the fight to the courtroom and won’t hold back if the other side is behaving unreasonably. If in the event that it does go to trial, both parties can sometimes work together to lessen the issues, so a judge doesn’t have to make a decision on everything involved in your case.
GROUNDS FOR DIVORCE IN INDIA
Grounds For Divorce in India
There are grounds for divorce in India that one can act on if they have been experiencing them. While the process of divorce can be long and hard, sometimes there just isn’t any other option for the parties involved. If you are considering getting a divorce in India, then you should take a look at some of the most common grounds for divorce that occur and consider your options.
1 - Adultery
The demonstration of participating in any form of sexual relationship or activity including intercourse outside of marriage is known as adultery. Adultery, also known as infidelity, is considered a criminal offense and substantial proof is needed to confirm its existence. An amendment to the law in 1976 states that one sole demonstration of infidelity is sufficient for the other spouse to get a separation or divorce.
2 - Cruelty
A life partner or spouse can motion to file a divorce when they are subjected to any form of mental and physical harm that causes a threat to their life, health, or body. The acts and demonstrations of abuse through mental torment are not judged upon one single act but rather a series of occurrences. Certain occasions like sustenance being denied, on-going abuse, poor treatment to acquire dowry, and perverse sexual acts are included and defined under cruelty.
3 – Desertion
If one of the spouses in a relationship decides to voluntarily abandon their partner for the period of at least two years, the person who was abandoned has the right to file for divorce.
4 - Conversion
If in the event that a spouse converts to another religion, the other spouse can file for divorce based on this.
5 - Mental Disorder
A mental disorder can be taken into account when filing for a divorce in India. If one of the spouses in a marriage has an incurable mental disorder, then the other spouse is permitted to seek a separation.
6 - Leprosy
If there should arise an occurrence of leprosy in a spouse, a request can be made by the other party to disband a marriage.
7 - Venereal Disease
If one of the partners is experiencing a genuine illness that is effectively transmittable, a separation can be recorded by the other life partner. Sexually transmitted infections like AIDS are considered to be venereal diseases.
8 - Renunciation
A companion is qualified to file a separation providing if their partner embraces another religious order and renounces all worldly affairs under the grounds of renunciation.
9 - Not Heard Alive
If a person has not been seen or heard alive by the individuals who are considered to be 'naturally heard' of the individual for an on-going time of seven years, the individual can, therefore, be presumed to be dead. The other party can file a divorce if they are interested in getting remarried based on the other party not being heard alive.
10 - No Resumption of Co-residence
If a couple fails to resume co-habitation after a court has passed a decree of separation, then this can be considered as grounds for divorce.
Fees For Divorce Lawyers in Mumbai:
Getting fee’s for divorce lawyers in Mumbai can vary depending on what practice you decide to go through. Some firms can charge what is considered to be reasonably affordable rates and others can charge on the more expensive side. The pricier firms can justify their rates because it often coincides with their experience and success. Hiring lawyers can be a case of you get what you pay for and taking the budget provider can yield less favourable results. If you want to know the best fee’s for divorce lawyers in Mumbai, you should contact us.
What Are The Fee’s for Divorce Lawyers in Mumbai?
The fees for divorce lawyers in Mumbai will differ based on many factors including who you hire, their experience and success rate, where you live, and how many issues you need to resolve. It’s normal to be concerned about the fees for divorce lawyers in Mumbai, but you should know that being willing to pay extra for a professional team who knows what they are doing can actually save you money.
You Get What You Pay For
Paying for a lawyer in Mumbai is not a decision you should take lightly. You don’t want to be put into a situation where a cheap lawyer ends up costing you more because they don’t know what they are doing. An attorney’s rate is often comparable to their level of skill and ability to get results, so don’t be afraid to pay more than you originally planned.
What Will Influence Fees for Divorce Lawyers in Mumbai?
There are many factors and influences to consider when looking into the fees for divorce lawyers in Mumbai and they depend on what issues need to be sorted within your case. Elements such as child custody, child support, spousal support or alimony, division of property, division of debts, and other claims can all account for your attorney’s fees.
Should I Hire an Attorney?
If there is no other option to settle the differences in your marriage then hiring an attorney may be the only alternative you have. Divorces can take an incredible toll on a family and other parties involved and almost never end amicably. You will mostly get situations where both sides can be petty and just want to fight rather than work something out or one party will want to settle and the other in being stubborn. This is why we have divorce lawyers and what they have been trained for.
Hiring an attorney can be the best option available, and they can come to solutions that you and the other party can’t. You shouldn’t let the fees bother you too much, and you should be more concerned about hiring a professional firm who can deliver results. While the cost may put a temporary strain on you financially, the long-term benefits that you will receive from hiring a lawyer who wins your case will be more than worth it in the long run. You should consider all of these factors mentioned when thinking about the fees for divorce lawyers in Mumbai.