Getting a divorce in India involves following a structured legal process that varies depending on the nature of the marriage, the applicable religious laws, and whether the divorce is by mutual consent or contested. Here is a comprehensive breakdown of the steps and considerations involved in obtaining a divorce in India.
Types of Divorce in India
Divorce in India can be primarily classified into two categories: Mutual Consent Divorce and Contested Divorce. Each type has different procedures and legal requirements.
- Mutual Consent Divorce:
This type of divorce is typically more straightforward as both spouses agree to end the marriage amicably. According to Section 13B of the Hindu Marriage Act, 1955, Section 28 of the Special Marriage Act, 1954, and Section 32B of the Parsi Marriage and Divorce Act, 1936, couples can apply for a divorce by mutual consent. Requirements include:- The spouses must have been living separately for at least one year.
- They must be unable to live together and have mutually decided to dissolve the marriage.
- Key issues like child custody, alimony, and property division must be agreed upon and mentioned in the joint petition.
- Filing the Petition: A joint petition is filed by both spouses in the Family Court, stating that they have mutually agreed to dissolve their marriage.
- Cooling-Off Period: After the initial filing, the court typically provides a six-month “cooling-off” period to allow for potential reconciliation. However, recent Supreme Court judgments have allowed waivers for this period in cases where the marriage is irreparably broken.
- Second Motion and Final Hearing: After the cooling-off period, if both spouses still wish to proceed, they appear in court for the second motion, confirming their decision to divorce. If the court finds the terms reasonable and fair, it grants the final decree of divorce.
- Contested Divorce:
A contested divorce is when one spouse files for divorce against the other’s wishes. The petitioner must prove specific grounds as prescribed by their respective personal laws. Common grounds include:- Cruelty: Physical or mental abuse that makes it unbearable to continue the marriage.
- Adultery: Extramarital relations by either spouse.
- Desertion: When one spouse has abandoned the other for a continuous period, typically two years.
- Mental Disorder: Mental illness that makes cohabitation unsafe or impossible.
- Communicable Disease: Diseases such as leprosy that are incurable.
- Conversion: If one spouse converts to another religion.
- Renunciation: If one spouse renounces worldly life, such as joining a religious order.
- Filing the Petition: The spouse seeking divorce files a petition in the Family Court, detailing the grounds for divorce along with supporting evidence.
- Service of Summons: The court sends a summons to the respondent (the other spouse), who must appear and respond to the allegations.
- Response from Respondent: The respondent can agree, deny, or file a counter-claim with additional facts.
- Trial and Evidence Presentation: The court hears both sides, including examination and cross-examination of witnesses.
- Final Decision: Based on evidence, witness testimony, and legal arguments, the court will grant or deny the divorce decree.
Divorce Laws Based on Religion
India has distinct laws governing divorce based on religious affiliations:
- Hindus, Sikhs, Jains, and Buddhists: Governed by the Hindu Marriage Act, 1955.
- Muslims: Divorce is based on personal law and the Dissolution of Muslim Marriage Act, 1939.
- Christians: Divorce among Christians is governed by the Indian Divorce Act, 1869.
- Parsis: The Parsi Marriage and Divorce Act, 1936, applies to Parsis.
- Interfaith Marriages: The Special Marriage Act, 1954, applies to civil and inter-religion marriages.
Each law has specific grounds for divorce; for instance, Christian divorce laws include adultery and desertion as grounds, while Muslim personal law offers different methods of divorce for men and women, including “talaq” for men and grounds like desertion for women under the Dissolution of Muslim Marriage Act.
Steps for Filing a Divorce Petition
The general process for filing a divorce petition involves these key steps:
- Drafting and Filing the Petition: The petitioner or the couple (in mutual consent) files the petition in the Family Court. The jurisdiction is usually determined by the place where the couple last lived together or where the respondent currently resides.
- Court Hearings and Mediation: In contested divorces, the court may suggest mediation to reconcile. If unsuccessful, the divorce process continues.
- Settlement Agreement (in Mutual Consent): In mutual divorces, a written settlement agreement is prepared, covering financial settlements, child custody, and other mutually agreed terms.
- Final Hearing and Divorce Decree: After both spouses complete their statements, the court passes a final divorce decree if it finds that all requirements are met and any settlement terms are fair and in line with the law.
Documentation Required for Divorce
To file for divorce, the following documents are generally required:
- Marriage certificate
- Address proofs of both spouses
- Passport-sized photographs of both spouses
- Evidence supporting the grounds of divorce (in contested cases)
- Proof of income and financial statements for alimony or child support cases
- Details of assets and property (if relevant)
Legal Assistance and Counseling
Legal assistance is crucial in contested divorces as it ensures that the petition and evidence are presented effectively in court. Lawyers can also draft settlement agreements in mutual consent cases and represent the client’s best interests in contested cases. Additionally, some Family Courts require couples to attend counseling sessions before proceeding with divorce to attempt reconciliation, especially when children are involved.
Duration and Cost of Divorce in India
The time required for a divorce case depends on whether it is mutual or contested. Mutual consent divorce typically takes about 6 to 12 months, though the court may waive the six-month waiting period under certain circumstances. Contested divorces, however, can take anywhere from one to several years, depending on the complexity of the case and the court’s caseload.
The cost varies widely and depends on factors such as the complexity of the case, lawyer fees, and the court fees. In major cities, legal fees for contested divorces can be higher due to the level of litigation involved.
Appeals and Revisions
If either party is dissatisfied with the court’s decision, they may file an appeal in a higher court. Generally, appeals must be filed within 90 days from the date of the judgment. An appellate court will review the lower court’s decision, examine the grounds for appeal, and may either uphold or modify the decree.
Divorce under Special Marriage Act
For interfaith couples married under the Special Marriage Act, the divorce process is similar to mutual or contested divorces but follows specific grounds under this act. The Special Marriage Act permits divorce on grounds like desertion, cruelty, adultery, and mental illness.
Conclusion
The divorce process in India is designed to accommodate different personal laws while also ensuring that the rights and welfare of both spouses are safeguarded. Mutual consent divorce remains the preferred option for couples seeking a swift and less contentious process. However, contested divorces require careful navigation through legal grounds and evidence to support the claim. With proper legal guidance, individuals can pursue a divorce that adheres to their rights and offers a just resolution to end the marriage legally.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304