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Story: Divorce tougher than getting married


By Swati Deshpande,Times New Network
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She is 27 years old, he 29. They lead separate lives, have separate sets of friends and interests that donít match. So, whatís the catch? Itís only their third month of marriage and, although both want out, the law is coming in their way. A trip to their lawyer revealed they could not even approach the court with a joint petition till they had a year of separation to show. And then they would have to wait six more months before the divorce decree would be passed to make them legally free to move on.

Kranti Sathe, family court lawyer in Mumbai, says young married couples are increasingly questioning the need for a yearís separation before they can file a mutual-consent divorce petition. "Why do I have to wait that long?í is a constant query I face," she says. The Hindu Marriage Act, which governs marriages between Hindus, and the Special Marriage Act - a secular piece of legislation to solemnise both inter- and same-faith marriages - allow divorce by mutual consent.

But the fine print says there should be at least a year of separation before the divorce process can be kicked off in courts. The Indian Divorce Act, dealing with marriages of Christians, requires two years of separation. With changing times, and a fast-evolving society, is the yearís separation necessary? Legal experts, social and marriage counsellors say itís time to take a fresh look at divorce laws, especially as six more months are required for the court to pass the final order.

So 18 months have to pass, at the very least, before a decision to end the marriage mutually can have legal sanction.

Sathe, who handles multiple divorce cases, notes: "There is a distinct rise in the number of mutual-consent petitions and the bulk comprises young newly married couples. Most first-time urban marriages take place when both parties are post-25 and, hence, if they decide mutually that their marriage is not working out, we must respect their decision to walk out of it."

Her views are echoed by other legal experts. Counsel Mahesh Jethmalani is categorical: "Once two adults go to court and say their marriage has broken down irretrievably, they should be granted a divorce immediately and be spared their misery. The law is no longer practical and, by implementing it, the process is being too technical. We are not talking about child marriages any more." "When a couple are married for more than a couple of years before they decide on a divorce, they easily state they have been living separately for a year even though they may have been sharing the same house and bed," a family court lawyer says. The law abroad permits the couple to live in the same household but they have to show they ate and slept separately.

In India, though the law is not very specific, the Supreme Court has laid down that the couple could be considered to be residing separately even if they are staying in the same household.

The other hitch is that the law requires both spouses to be present at the time of filing the joint petition and then meet the marriage counsellor in the court; they also have to be present when the decree is passed. Some judges of the family court in Bandra also come to the aid at times, waiving away the six-month wait.But this is done more when a contested petition or a petition for child custody, pending for years, has been converted midway into a consensual decision to split. The long wait in a contested plea is well-known.

NRI Divorceģ 2006-2010