Indian Law Uncovers Misunderstandings About Divorce Legally difficult as well as emotionally draining, the divorce process can be. Often, the nuances of Indian family law vary from one another depending on religion, state jurisdiction, and case law evolution. Many individuals do not find the legal procedure itself to be one of the most important challenges; rather, it is the common misunderstandings surrounding the divorce process.
These fallacies about divorce can lead unrealistic expectations, bad choices, and legal risks that could eventually harm your case. Particularly with relation to Indian law, we shall debunk some of the most damaging myths about divorce throughout this article.
Myth 1 “The mother always gets custody of the child”
Though Indian courts often prefer to place small children with their mothers, it is crucial to emphasise that the mother’s custody is not guaranteed by custody of the child. The courts consider the child’s best interests when they decide, which include the child’s mental, physical, educational, and moral well-being all around. Particularly for those who are financially stable and emotionally supportive with their children, fathers have every right to seek custody or shared parenting.
When deciding custody under laws including the Guardians and Wards Act of 1890 and the Hindu Minority and Guardianship Act of 1956, the child’s welfare—not the parents’ gender—is what matters most.
Myth 2 “Adultery guarantees divorce and favours the innocent spouse.”
Though certain Indian personal laws, including Section 13(1)(i) of the Hindu Marriage Act, 1955, acknowledge adultery as a legitimate cause for divorce, proving the adultery took place in court is not always simple. The proof has to be really powerful and convincing. Merely suspecting adultery or using circumstantial proof might not be enough.
Moreover, the non-offending spouse does not automatically get total custody of the kid, property rights, or alimony payments even should the adultery be verified. The court conducts independent assessments on every single aspect.
Myth 3 “You must be legally separated for a year before filing for divorce.”
It is only true for divorces that both parties consent to Section 13 B of the Hindu Marriage Act states that a couple must have lived apart for at least one year in order to seek for divorce. That said, for divorces disputed on grounds like cruelty, desertion, or adultery by either party, this criterion is not required.
Moreover, your sort of divorce would determine whether or not this waiting time applied to you.
Myth 4 “Women are always entitled to alimony.”
Many people believe divorce is like this. Women do not automatically have the right to get maintenance payments or alimony. The court considers several factors—including income, property ownership, age, health, and capacity to earn—before deciding on maintenance.
Actually, the Hindu Marriage Act lets guys seek maintenance should they rely financially on their wife or if they are handicapped.
Legally speaking, the Hindu Marriage Act—specifically, Sections 24 and 25—lets either spouse ask for either temporary or permanent maintenance.
Myth 5 “You can’t remarry unless divorce is mutual”
Usually lasting for ninety days, the appeal procedure will prevent you from remarrying until the court has granted a final divorce decree. Whether your divorce was amicable or contentious affects not this. Your spouse’s permission is no more relevant once the decree has been finalised and is not under dispute.
According to Section 82 (2) of the Bhartiya Nyaya Sanhita (BNS) previously Section 494 of the Indian Penal Code (IPC) , if you remarry before the legal procedure is complete, you could be prosecuted for bigamy, a criminal offence.
Myth 6 “Dowry allegations automatically lead to divorce”
Though dowry harassment is a major criminal violation under Section 85 of the Bhartiya Nyaya Sanhita (BNS) previously Section 498 A of the Indian Penal Code (IPC), this is a different legal issue from the divorce process. A dowry issue could help a claim of cruelty in the framework of divorce; nonetheless, it does not ensure divorce by itself.
Moreover, courts are now giving particular focus to false dowry allegations, which could harm the accuser’s divorce case and make it less interesting.
Myth 7 “Property will be equally divide after divorce.”
Some Western nations have communal property laws; India does not follow them. The property cannot be split in half automatically. Two of the most crucial elements in the process of dividing up property are ownership documentation and cash contributions.
But in certain situations, the court may direct the spouse without property to receive either a house or monetary compensation. This is especially probable in cases involving children or when the spouse in issue depended financially on the other.
Myth 8 “Hiring a lawyer guarantees a win.”
Though there is no guarantee you will win, a good lawyer will increase your chances. Conversely, the Indian court system is bound by procedure, facts, and law rather than by how well-known your lawyer is. Your case could suffer if you are overconfident or if you depend just on your lawyer without knowing the procedure.
You should keep actively engaged in your case, carefully examine the papers, and always keep notes of the discussion that occurs.
Myth 9 “Mutual consent divorce is always faster and cheaper.”
The procedure is deemed simple only if both sides are in total agreement on every aspect, including custody, maintenance, alimony, and property distribution. Usually, mutual consent is quicker. Disagreements on any of these elements could prolong the lawsuit, hence increasing the total cost and duration.
Myth 10 “Once divorced you lose all inheritance rights.”
Divorcing spouses forfeit their rights to inherit property; the children, however, retain rights to inherit paternal and ancestral property. Even adopted kids are treated equally under Indian inheritance law.
One significant legal issue is that the 1956 Hindu Succession Act makes a child’s inheritance independent of the parents’ marital status.
Conclusion
Divorce is more than just the end of a marriage; it also includes changes, not only legally but also emotionally and financially. Depending on divorce misconceptions that harm your situation could lead to avoidable delays. The first step is to inform yourself on the facts and keep a degree of legal knowledge so you may protect your rights and build a better future for yourself.
