Far From Court? No Problem. You can still get Divorce

A lot of people are of the opinion that in order to get a divorce, a divorce decree issued by a court of law is a pre-requisite. Although, they are right to a great extent, there still exist some rare exceptions. This blog is aimed at analyzing those and helping our readers exploit the same.

Marriage in India is considered a sacrosanct relation and not a contract to be repudiated by a future contract, barring marriages under the Islam religion, but even under those laws, divorce is considered an exception as compared to the natural status of remaining married. Therefore, it is true that a mere agreement between two parties is not considered a valid divorce under Indian family laws. However, it is also true that there is no one legislation that is the be all and end all of family matters in India. Different legislations exist for governing people of different religions and within the same religion, different sets of laws exist for different family issues from solemnizing a marriage, divorce, custody, maintenance to domestic violence. But, an in-depth commentary on each of these is beyond the scope of this blog. However, this blog aims to provide a general overview of the entire issue at hand.

There can be many reasons, for preferring to not resort to court procedures in a divorce. Logistical reasons involve parties residing too far away from the court in a remote area, or one of them staying outside the country. There could also be other emotional reasons like not wanting personal, family matters to be discussed in the public domain, not having enough amount of money to hire a lawyer etc. Whereas in normal cases if you are living in a city like Lucknow then you can consult Divorce Lawyer in Lucknow.

If a couple stays far from court and only wants to reduce the number of times he has/she has to go to court, the best option is to go for a mutual consent divorce under Section 13 B of the Hindu Marriage Act, 1955. It allows a couple in which both the parties want a divorce to file a petition for a divorce together. After a cooling off period of 6 months; (which can be waived by the court in extra-ordinary circumstances under Article 142 of the Constitution of India, 1950 to do complete justice[i]) the court grants a divorce decree, if after certain inquiries, it is satisfied that the situation is irreconcilable.

Under the Muslim Personal Laws (Shariat) Application Act, 1937, a Muslim husband can validly divorce his wife without involvement of the court in any manner, whatsoever.

Also, as per Section 89 of the Civil Procedure Code, 1908, read with Section 9 of the Family Courts Act, 1984, it is the duty of every family court (secular) to endeavor to persuade the parties to arrive at an amicable settlement by referring them to mediation. Even though the primary aim of a mediation process is to enable the parties to arrive at a settlement in favour of preserving their ties, nonetheless, they can also choose to set out the terms for separation if they wish to, in the same process. Once both of them consent to the terms of the settlement, they just have to request the court to pass a decree declaring them to be divorced as per the terms and conditions arrived at by them.

Unfortunately, as of now, not all forms of alternate dispute resolution mechanisms are available to parties wanting divorce. Arbitration is the prime example. Disputes relating to certain subject matters like Intellectual Property Rights, criminal matters etc are non-arbitrable[ii]. Family matters relating to divorce, maintenance and custody are also part of the list enumerated by the Apex Court in Ayyasamy v. Paramasivam[iii] and are therefore currently non-arbitrable.

Also, in many countries including the United States and European countries, there exists a concept of Collaborative Law, which allows the couple to divorce by way of an agreement and the same is recognised by law. Even though the concept is unknown to Indian jurisprudence in that there is not a single divorce judgment which speaks of it, however, many scholars are of the opinion that divorce by mutual consent and mediation are in essence, the same thing as divorce obtained by Collaborative Law.

[i] Soni Kumari v. Deepak Kumar, (2016) 16 SCC 346.

[ii]http://www.mondaq.com/india/x/572050/Arbitration+Dispute+Resolution/CERTAIN+CATEGORIES+OF+DISPUTES+TO+BE+NONARBITRABLE.

[iii] Ayyasamy v. Paramasivam, (2016) 10 SCC 386.

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