10 Myths on Divorce

Myth # 1 Divorce can be done on a Stamp Paper

The stamp paper procedure is entirely fraudulent. The concerned couple must file a petition in court to obtain a divorce decree. If a divorce is obtained using notarized stamp paper, the stamp paper becomes void, and the marriage that existed previously remains valid. A proper procedure laid down by the divorce laws must be followed to obtain the decree of divorce.

Myth #2 You can’t get divorced if the spouse doesn’t agree

Even in such a situation where one spouse does not agree to a mutual divorce the other spouse still has the option to file for a contested divorce if you have sufficient grounds for divorce. A petition for a contested divorce can be filed in the court having the proper jurisdiction. Hence, the consent of the other spouse is not needed in a case of a contested divorce. The majority of marriage and divorce laws, including the Hindu Marriage Act of 1955, the Dissolution of Muslim Marriage Act of 1939, the Indian Divorce Act of 1869, the Parsi Marriage and Divorce Act of 1936, and the Special Marriage Act of 1954, share the same grounds for a contested divorce. The court may take three to five years to reach a final verdict in a contested divorce. A contested divorce requires an extremely time-consuming and difficult appeals process. At every step, aid and direction are required.

Myth #3 Adultery is a crime in India

Previously adultery was a crime in India but per a recent Judgment by the Supreme Court, adultery cannot be a criminal offence, but it can be a reason for civil problems such as divorce. The previous law criminalizing adultery was challenged by the petitioner stating that it was arbitrary and discriminatory. In the previous law, the idea of adultery focused on sexual activity between a married woman and a man who is not her husband, in which case the husband would be culpable but the wife would not be punished. When a married man engaged in sexual activity with an unmarried woman, neither party was subject to punishment; however, if the married man did so with a married woman who was not his wife, his crime was committed against the husband of that married woman rather than his wife, to whom he had been unfaithful. Only after the unhappy husband filed a complaint could adultery be prosecuted (or in exceptional circumstances by a party whom the husband had entrusted with the care of his wife).
On 27 September 2018, the case of Joseph Shine vs Union of India Adultery Law was squashed by the Supreme Court of India as unconstitutional. Joseph Stine filed the petition to invalidate the sexist law on adultery. Although the law criminalized only men, it is nonetheless anti-women because it further insulted a woman’s dignity by denying her the ability to exercise her freedom and make her own decisions. As a result, it transgressed the essential liberties of privacy, autonomy, dignity, and equality enshrined in Articles 14, 15, and 21 of the Constitution.

Myth #4 Visitation can be denied if my ex doesn’t pay child support

There is a procedure for enforcing child support obligations, but it does not include depriving a parent of visits. Parenting time and child access are unrelated to the payment of child support. The inability to sustain the kid cannot be used as a justification for refusing to pay child support. If a non-custodial parent is unable to support the child financially because of challenging circumstances, the custodial parent cannot deny the right to see the child. There will be “frustration of visitation” if the custodial parent restricts the non-custodial parent’s ability to see the child. When a parent’s request for visitation is denied, they must go before the family court to get their request approved. 
What is the frustration of visitation?
Not all parents fully abide by the visitation plan that a divorced couple makes. Instances like this might lead to frustration of visitation, which arises when the custodial parent prevents the non-custodial parent from seeing the child.
The Criminal Procedure Code (CrPC), 1973’s Section 125 mandates that a man pay maintenance to both his wife and kid after a divorce. If he has the means to support the child but chooses not to or is unable to, a first-class magistrate may order him to pay a maintenance payment each month that is adequate to care for the child. The magistrate can issue a warrant for levying the debt and even sentence him to up to one month in jail following the execution of the warrant if he refuses to comply and the lady files a petition within a year of him refusing to do so. Whether the child is legitimate or not, a Hindu male is compelled to pay child support under Section 20 of the Hindu Adoption and Maintenance Act, 1956. Therefore, whether she is divorced or separated, a woman can file a petition under these two laws in the family court with jurisdiction over the area where she and her child reside. Additionally, only Hindu women may petition under Section 20 of the Hindu Adoption and Maintenance Act, although any woman, regardless of her faith or caste, may do so under Section 125 of the Criminal Procedure Code.

Myth #5 You must get divorced in the state where you married.

Apart from where you got married, you can also file for divorce:
  • Where you live or
  • Where you last resided together
You can file the divorce petition where you now reside. The woman may file for divorce in any of the following jurisdictions following an amendment to the Act in 2002:
1. The place where the marriage took place; 
2. The place where the husband and wife first cohabited after the marriage and before their separation; 
3. The address of the respondent; 
4. The woman’s place of residence following her departure from the matrimonial house.

Myth #6 Children get to pick who they live with.

A judge may consider a child’s preference, but he/she is not compelled to do so. Instead, the judge will base their custody decisions on what is in the child’s best interests. It is more crucial to consider the child’s comfort and fundamental necessities. In India, the parent who is better equipped to take care of the child’s social, medical, educational, and emotional requirements will be awarded preference and custody of the child. When a child reaches the age at which they may make decisions for themselves, they may wish for their primary caregiver or the parent they want to live with. But only after reaching a specific age, which is 9 years old following the Guardians and Wards Act of 1890. In India, a child’s preference for custody is taken into account once he or she turns 9 years old.
A child has the right to voice their preference for which parent they should live with during custody negotiations. The judge does not, however, have to abide by the child’s expressed wishes. 

Myth #7 Women always get maintenance and men never do

Although the law permits the husband to receive permanent alimony and maintenance, in practice there are extremely few examples where such a judgment has been made in the husband’s favor. According to the Hindu Marriage Act of 1955, husbands have the legal right to demand maintenance from their wives. According to Section 24 of the Hindu Marriage Act, the husband would be reimbursed for both his legal fees and maintenance of pendente lite. The husband has the right to receive alimony and maintenance in perpetuity under Section 25. The phrase “maintenance” in this context refers to a variety of items, including food, shelter, clothing, and other basics needed to maintain one’s life:
  • According to Section 24, a “deserving male” who lacks an independent source of income adequate to sustain himself and does not have the funds to cover the costs of the case may, if his wife can afford it, make a maintenance claim against her.
  • Permanent alimony and maintenance might be paid to the husband under Section 25. In consideration of the wife’s income and assets, it requires the wife to pay such a gross amount, monthly payment, or periodic payment for the duration of the husband’s life. If the court determines that the situation has changed, the order may be modified. For instance, in a mutual consent divorce, the court may award maintenance if the parties agree not to make a maintenance claim and the circumstances and facts of the case warrant it.

Myth #8 Women always get a 50% share of their husband’s income and property

There isn’t a set recipe. It is determined based on variables including the combined income of the husband and wife, husband deductions such as an EMI, and husband liabilities like parent obligations. According to the law, the wife is entitled to maintenance, which is based on the spouse’s income, liability, and standing before the disagreement. 
When a divorce is amicably settled and the property is owned by the husband, the wife has no claim to it once the divorce is finalized. The person whose name the property has been registered is considered to be its owner in legal terms. The husband is therefore regarded as the owner of the property if it is registered in his name, and the wife cannot claim it. The court will determine the amount of maintenance based on several factors, including the husband’s monthly income, the wife’s income, and his financial situation.

Myth #9 Child Custody Always Goes To The Mother

The court will award custody to a father if he is seen to be more responsible, loving, and caring toward the child after a specific age or following the “best interest” theory. The welfare and interests of the child and not the parents’ rights are the “first and primary consideration,” according to the Supreme Court. Frequently fathers can also ask for custody after their children reach a certain age. So mothers do not always have an upper hand concerning child custody. The best interests of the child and the “right of the kid” have been given much more weight by the courts than the “right of a parent” when deciding which parent will get custody following a divorce, as is clear from several major decisions. However, there might be exceptions or unique situations that the courts take into account on a case-by-case basis. 
For instance, a) when a child is younger than five years old, custody is typically granted to the mother; b) older boys and girls are typically awarded to the father; and c) when a child is older than nine years old, the court will also consider that child’s preference.

Myth #10 Divorce Proceedings are lengthy and expensive

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