Divorce

Guide

Divorce – Guide

Divorce is the legal dissolution of marriage. Since, India is a land of varied religions divorce, like most other personal matters, are connected to religion. The Hindu marriage act of 1955 governs divorce among Hindus, Buddhists, Sikhs and Jains. The divorce in the Muslim community is governed by the dissolution of Muslim marriage act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act of 1956.

TYPES OF DIVORCE PETITIONS IN INDIA

1. DIVORCE BY MUTUAL CONSENT:

As the name suggests this type of divorce requires the agreement of both the parties. Apart from the separation, this agreement also extends to matters related to maintenance and child custody. This type of divorce is usually considered to be an easier and a faster way out and is filed jointly by the husband and the wife with the help of a single, common lawyer.

Section under which it is filed: Section 13B of Hindu Marriage Act, 1955, Section 28 of the Special Marriage Act, 1954.

This act lays down certain conditions required to file a divorce with mutual consent:

(i) Husband and wife have been living separately for a period of 1 year or more.
(ii) They are unable to live together.

Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at least two years.

Time Taken: 18-24 months

A gap of minimum of 6 months and a maximum of 18 months is required between the first and second motions.

The Supreme Court in January 2020 has waived off the statutory cooling period of 6 months, before granting a divorce. From now on, a trial court can dispense with this period if there is no possibility of cohabitation between the estranged couple.

Cost Involved: A nominal court fee of Rs. 15 and additional lawyer’s fee which depends on the lawyer.

Steps involved:
(i) Joint petition to be presented before a family court.
(ii) Appearing before court and inspection of the petition.
(iii) The court may order the party’s statements to be recorded on oath.
(iv) The first motion is passed and a period of 6 months is given before the second motion. (This period of 6 months can be waived off as per a recent order of SC)
(v) Second motion and the final hearing of the petition.
(vi) Decree of divorce.

2. CONTESTED DIVORCE:

A contested divorce is filed by either of the parties on specific grounds which include;

Cruelty: Includes physical or mental cruelty. A reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful is sufficient ground for obtaining a divorce due to cruelty.
Adultery: A man is said to commit adultery when he has sexual intercourse outside marriage with another woman. However, Adultery is a ground for divorce for both men and women; which means, if a woman commits adultery the husband also has the right to file for divorce.
Desertion: Desertion means abandonment in simple terms. The Hindu law demands the period of desertion to last for 2 years. Whereas the Christian law does not consider it to be a ground for divorce.
Conversion: Converting to a different religion can be a ground for divorce. This ground does not require a prior time period before filing the petition.
Mental Disorder: In case the spouse is unable to perform the normal duties required in marriage due to his/her mental illness divorce can be sought.
Communicable Disease: In case the spouse is suffering from a communicable disease such as HIV/AIDS, Incurable form of Leprosy, syphilis or gonorrhoea the Hindu laws allows the other party to obtain a divorce.
Renunciation of the world: If the spouse decides to renounce his marriage life and obtain sannyasa, the aggrieved party can seek divorce.
Presumption of death: If the spouse is not heard of being alive for a period of 7 years by such individuals who would have heard about the spouse, then the other spouse can obtain a divorce.

This type of divorce can be filed under Section 13 of the Hindu Marriage Act, 1955 by either of the parties who seek to obtain a divorce. It is usually a lengthy process and take around 3-5 years for the divorce decree to be obtained.

Steps involved:

(i) Filing of a petition by the husband or wife.
(ii) Court issues summons and seeks a reply from the other spouse.
(iii) The court may suggest reconciliation
(iv) Examination and cross-examination of witnesses and evidence.
(v) Counsels for both parties present final arguments.
(vi) Decree of divorce passed by the court.

DOCUMENTS REQUIRED

1. Address proof of the wife and the husband
2. Marriage Certificate
3. Evidence proving that spouses are living separately for more than a year
4. Evidence related to failed attempts of reconciliation
5. Income tax statements for 2-3 years
6. Information relating to family background
7. Details of property and assets of both the parties
8. Photographs of marriage
9. Details of present and professional remuneration of husband and wife

ANNULMENT OF MARRIAGE

A marriage can also be dissolved by annulment; the grounds for which are fraud, pregnancy of wife by another person and impotence before the marriage which is subsisting at the time of filing the case. If an annulment is granted the status of the husband and the wife is restored as was before the marriage.

VOID MARRIAGE

Section 11 of the Hindu Marriage Act, 1955 lists down certain conditions in which a marriage is null and void.
(i) Bigamy ( this is not a condition under Muslim law)
(ii) Inter Family marriage
(iii) Marriage between close relatives

VOIDABLE MARRIAGE

A marriage becomes voidable if during the time of marriage either of the parties did not have the intention to marry and was forced into it either due to mental illness, intoxication, duress or fraud.

For more information refer to the following laws:

Step by step guide to file a Divorce Petition

STEP BY STEP GUIDE TO FILE A DIVORCE PETITION

There are two types of divorce petition which can be filed in order to obtain a decree of divorce.

Mutual consent divorce

When both the parties agree on obtaining a divorce, maintenance issues and child custody then a joint petition can be filed.

This type of divorce usually takes lesser time and is less complicated.

The following are the steps involved to obtain a divorce decree:

Joint petition to be presented before a family court.
Appearing before court and inspection of the petition.
The court may order the party’s statements to be recorded on oath.
First motion is passed and a period of 6 months is given before the second motion. (This period of 6 months can be waived off as per a recent order of SC)
Second motion and the final hearing of petition.
Decree of divorce.

Contested divorce

When either party wants to obtain divorce and both the parties do not have agreement on getting a divorce then the party who wants to file a divorce petition can go ahead and file it on grounds of cruelty, adultery, desertion, mental disorder, conversion, renunciation of the world, presumption of death, communicable disease. It is usually a lengthy process and takes around 3-5 years for the divorce decree to be obtained.

Steps involved:

Filing of petition by the husband or wife.
Court issues summons and seek reply from the other spouse.
Court may suggest reconciliation
Examination and cross-examination of witnesses and evidence.
Counsels for both parties present final arguments.
Decree of divorce passed by the court.

DOCUMENTS REQUIRED

Following documents are required in case of filing a mutual as well as contested divorce petition:

Address proof of the wife and the husband
Marriage Certificate
Evidence proving that spouses are living separately for more than a year
Evidence related to failed attempts of reconciliation
Income tax statements for 2-3 years
Information relating to family background
Details of property and assets of both the parties
Photographs of marriage
Details of present and professional remuneration of husband and wife

REFER TO THE LINK FOR ONLINE APPLICATION FORM FOR MUTUAL CONSENT DIVORCE:

https://mutualdivorceonline.com/mutual-divorce-form.aspx

FAQs

CAN BOTH PARTIES HIRE THE SAME LAWYER IN A JOINT PETITION FOR DIVORCE?

A joint petition for divorce is filed by the parties in the case of a mutual consent divorce, where both parties agree to the terms of the agreement.

The parties opting for a mutual divorce process in India can hire a common advocate who can help them jointly file an affidavit to get the divorce.

CAN SECTION 498A (CRUELTY) BE FILED AFTER DIVORCE?

Yes, it can be filed however, there must not be an undue delay in filing an FIR under Section 498a of IPC as held by the SC in the case of Mohammad Miyan vs state of UP. In this case, the women’s contention was not held substantial as she contended cruelty after 4 years of her divorce.

HOW TO APPLY FOR MUTUAL DIVORCE?

You can apply for a mutual divorce under section 13B of Hindu Marriage Act, 1955, Section 28 of Special Marriage Act, 1956, Section 10A of Indian Divorce Act, 1869 and Section 32B of Parsi Marriage and Divorce Act, 1936.

Steps involved:

Filing of petition by the husband or wife.
Court issues summons and seek reply from the other spouse.
Court may suggest reconciliation.
Examination and cross-examination of witnesses and evidence.
Counsels for both the parties present final arguments.
Decree of divorce passed by the court.

HOW TO APPLY FOR ONLINE DIVORCE APPLICATION IN INDIA?

Because of the increasing divorce rate and the long time taken to apply for divorce in India, the process of online divorce application is now allowed in the case of mutual consent divorce.

You can apply for an online divorce yourself or through a divorce lawyer. However, it is advisable to apply for divorce in India through a lawyer even in case of an uncontested Divorce.

For a contested divorce in India, you must file a divorce petition in court with the help of a lawyer.

Online application form for mutual consent divorce: