Do you want to know about the Procedure for Filing a Divorce Petition? then, read this article to know about it
According to Indian law, a divorce proceeding begins with the submission of a divorce petition. One of the involved parties files a divorce petition, and the other party receives notification of divorce. Nevertheless, according to the Indian divorce procedure, divorce rules can be specific based on the spouses’ religions, similar to the laws regarding marriage. If the spouses’ conditions are not perfect they can not carry on the relationship as planned, and they choose to part ways officially, they can petition for mutual divorce as per the Marriage Act of 1955. However, if one of the involved parties refuses to have a divorce, it is still easy to apply for divorce under the conditions mentioned above. In this situation, the disputed divorce process will be conducted.
What is divorce?
Before we go through the approved divorce process in India, it is necessary to understand what divorce is. Divorce is the act of ending a marriage. It is the procedure that leads to the separation of a married couple, which then leads to a cancellation or change of the couple’s responsibilities and duties. This results in the end of a marriage or married partnership.
The two kinds of divorce:
The two types of divorce in India are described here, each with its own set of conditions and divorce process. The two types are as follows:-
Mutual Divorce:This occurs when both individuals agree to move forward with the divorce process. They will submit a petition to the respected court of law together, as agreed beforehand.
Contested Divorce:This is when one or both parties disagree on a particular component of their divorce. In this type of procedure, they struggle with a few elements of their divorce. This is done in the absence of mutual agreement. A contested divorce can be based on the circumstances given below.
- Violence
- Abuse
- Abandonment
- Insanity
- Illness
- Infectious medical conditions
- Religion conversion
- Rejecting moral laws
- Presumption of passing away
Divorce process to file for mutual divorce:
1. Filing a petition:
In the event of a mutual divorce, the initial phase is for both the husband and wife to submit a joint application for the dissolution of marriage with a family court on the basis that both of them have been living apart for a minimum of twelve months and that they were unable to live with each other and jointly chose to end their marriage. This petition must be signed and submitted by both individuals to initiate the lawsuit.
2. Examination of the filed petition by the court:
Both individuals must be present in the family court after filing their divorce petition. Both sides must present each of their lawyers or counsels. The court will carefully examine the petition and additional paperwork submitted in court. The court might additionally work towards uniting the couple back together. But, if this turns out to be impossible, the case moves ahead for further proceedings.
3. The issuing of instructions for recording confessions under oath:
After reviewing the materials and the filed petition, and if the judge agrees, both individuals may be directed to swear their oaths. This is the third phase in the legal separation process.
4. Decision on the first motion and the implementation of the six-month timeframe before the second motion:
After recording the statements of both individuals, the court issues a ruling on the initial motion. Following this, both individuals are given six months before submitting their second motion. The longest filing timeframe for the second motion is 18 months. This starts on the day the petition application is presented in court unless it is dismissed.
5. Second motion and the final judgment on the legal proceeding:
If the individuals choose to continue with the divorce proceedings and attend the magistrate’s court for a second motion within the term specified, they can do so and move on to the final hearing. However, the Supreme Court has concluded that the six-month limit may be extended at the request of the court. As a result, in circumstances where the court believes that extending the proceedings will only increase the hardships they might be experiencing, the six months may be lifted. However, it is an established rule that any party can cancel their permission to divorce at any point until the decision is issued. Furthermore, if the second motion fails to be approved within the next 18 months, the court won’t give a divorce judgment.
6. Judgment of divorce:
According to the divorce legislation, in the event of a mutual divorce, both individuals agree to officially get separated from one another. There is no disparity between the individuals such as differences in child support, maintenance, assets, custody of kids, and other such matters. To dissolve a marriage, both parties must agree. Following this, if the ruling presents a satisfactory status, every argument has been given, and the claims are proven accurate, there is no option of getting back together. The court may issue a divorce judgment, therefore dissolving the marriage. The court’s judgment establishes the conclusion of the separation. This terminates the divorce process in the event of a mutual agreement to dissolve the marriage.
Documentation required for mutual divorce:
According to the divorce process, the documents that are given below are important and need to be provided at the same time with the petition:
- Address Documents of individuals
- Professional information of individuals
- Financial reports of individuals
- Certificate of Marriage
- Wedding images of the couple
- Evidence of separation of more than a year
- Family Background information
- Evidence of unsuccessful attempts at getting back together
- Income tax statements of both individuals
- Details about assets and properties owned by both individuals
Divorce process to file for contested divorce:
1. Development of appeal:
The initial step of a contested divorce in India is when an individual consults a lawyer. The offended partner who wants to dissolve the marriage must explain and be clear about the factors that led to their choice. The lawyer would put together the request based on the facts provided by the party requesting a divorce. The request would demand all necessary papers confirming the individual’s accusations. Following completion, both the petition and the affidavits will be certified by the opposite individual in the presence of a judge.
2. Submitting the Petition:
Once the request is completed and all regulations have been met, it must be submitted to the family court, which is according to the relevant responsibility. This is the following stage of the contested divorce process.
3. Court’s examination of the petition:
The court will examine the request based on the accusations and justifications given by the contending individual on the initial hearing day.
4. Opposition’s participation in court:
The next phase in the contested divorce proceeding is based on the court’s approval of the issue being resolved or not. A notice will be sent to the opposing individual. Following this, a duplicate of the request and announcement would be delivered to the opposing individual. On the following date, the opposing individual must show up in court with their attorney to answer the claims charged against them. They must respond to the divorce application as well as any other applications that might be submitted.
5. Trying to get the couple back together:
Initially, the judicial system would attempt to reach an agreement and settle the situation. However, it might additionally send both individuals to counselling in an attempt to find an acceptable solution. If the counselling procedure fails, the court will move forward with the divorce procedure.
6. The court’s presentation and gathering of proof:
The court will describe the problems and gather information as it processes the case. Both individuals will be expected to submit proof, be prepared for questioning, and provide suitable supporting witnesses.
7. Conclusions made by the individuals:
Following the conclusion of the proof submission and interrogation phase, the attorneys for each individual would need to wrap up their legal arguments. The date of the declaration will then be announced.
8. Divorce judgment:
The decision will be made by the judge using his or her discretion. After completion and if appropriate, a divorce order would be issued. Depending on the situation, consideration will be given to the judgment. Both individuals may submit a motion for reconsideration if they do not agree with the ruling. However, a three-month period of limitations from the judgment’s date applies. This brings an end to the contested divorce process.
Documentation required for a contested divorce:
According to the divorce process, the documents that are given below are important and need to be provided at the same time with the petition:
- Address proof of both individuals
- Pictures of the couple’s wedding
- Marriage certificate
- Proof in support of the divorce proceedings
- Financial statements of both individuals
- Professional information of both individuals
Conclusion:
It is the responsibility of both the man and the woman who choose to unite through marriage to uphold the sacredness of this holy relationship, even in situations where it is not possible to continue this partnership. Marriage is a divine union of two individuals.
The process of ending a marriage is called a divorce. It is the procedure that leads to a married couple’s separation. There are legal ways to end an unhappy marriage. To protect a marriage’s purity, lawmakers must constantly work to keep marriages intact and use caution in cases of divorce. Contact a divorce attorney for more information about the procedure and guidance on filing for divorce.
FAQs About Procedure for Filing a Divorce Petition:
1. What are the justifications for divorce in India?
In India, the justifications for divorce are determined by the private traditions of several religions. Violence, abandonment, sexual misconduct, conversion to a different religion, unstable mental state, terminal illness, and mutual agreement are among the justifications for divorce listed in the Hindu Marriage Act. However, Talaq (separation by the husband), Khula (separation by the woman), and Mubarak (divorce by mutual agreement) are among the reasons for divorce under Muslim Law.
2. I want to file for divorce. Do I need an attorney?
Hiring legal counsel is strongly advised when filing for divorce.
A lawyer can guide you throughout the legal procedure, explain the legal consequences of the separation, and, if necessary, defend you in court.
3. How can I initiate a divorce?
You must submit a petition to the relevant court to initiate divorce proceedings. The last residence you and your partner shared will determine which court has authority over this matter. Every relevant detail, including the addresses and names of both individuals, the reason for divorce, and any additional relevant information, should be included in the application.
4. Can I get a divorce in India online?
In India, divorce petitions cannot be currently submitted online. A written petition has to be submitted to the relevant court.
5. What is the duration required to obtain a divorce in India?
The length of the divorce procedure in India may differ based on several circumstances, including the case’s level of complexity, if the divorce has been disputed or mutually agreed upon, and the court’s workload. While a battled divorce might take years, a mutually agreeable divorce typically takes six to eighteen months.
6. Can I file for a divorce without my partner’s approval?
It is possible to obtain a divorce without your partner’s approval, but the reasons for the divorce have to be recognized by your religion’s particular regulations. In these situations, the individuals will each make an argument during a hearing that the court will arrange. The evidence and the arguments will be considered by the court before a ruling is issued.
7. What happens to assets and property following a divorce?
The distribution of wealth and possessions following a divorce depends upon several requirements, including the length of the marriage, the financial investment made by each spouse towards the purchase of the possessions, and the private regulations of your religion. To be sure that all of these problems are taken care of, consulting with an attorney is strongly recommended.
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