Procedure To File a Divorce in India

Do you want to know the Procedure To File a Divorce in India? then, read this article to know the Procedure To File a Divorce in India

WHAT DO YOU MEAN BY DIVORCE?

The dissolution or termination of a marriage is referred to as a divorce. Similar to marriage laws, divorce laws in India differ according to the partners’ respective religions and the laws that apply at the time of the marriage. This site offers information about filing for divorce, the legal process in India, the paperwork needed for a divorce, and other related topics. Continue reading.

The filing of a divorce petition is the first step in the divorce procedure in the Indian legal system. This can be started unilaterally by one spouse or, if both partners agree, jointly by both of them. This legal reference outlines the processes and procedures for both amicable and disputed divorces.

DIVORCE TYPES UNDER HINDU LAW:

Hindu law distinguishes between two types of divorce:

Mutual divorce:This type of divorce is governed by the Hindu Marriage Act. As the name suggests, a mutual divorce is one in which the husband and wife mutually agree to a peaceful separation and consent to it. The husband and wife are required to consult with a lawyer for legal matters and to make any necessary decisions regarding child custody and alimony. To initiate a mutual divorce, two things must happen: both parties must give their permission and the couple must live apart for a minimum of one year.

Contested Divorce: Either spouse can start the divorce process, which is known as a contested divorce. A contentious divorce may be filed on the grounds of cruelty, religious conversion, insanity, contagious disease, or the absence of one spouse for more than seven years, according to the Hindu Marriage Act of 1955.

PROCEDURE TO FILE FOR DIVORCE BY MUTUAL CONSENT:

Section 13B of the Hindu Marriage Act, 1955 addresses the mutual consent divorce provision. There is a special procedure to file for it, as mentioned in this section. An overview of the steps, conditions, and procedures involved in submitting a petition for an amicable divorce is provided below:

The first step in initiating a divorce is to hire a lawyer and file a petition. A qualified attorney may assist in creating a joint petition for marriage dissolution, which both spouses can submit to the family court. In addition to a mutually signed agreement to dissolve the marriage, the petition must state that the parties have been separated for a year or are unable to live together.

1. Court appearance and review of the petition:

After the petition is filed, all parties are required to appear in family court. Their legal counsel is going to accompany them. All supporting documentation and the petition will be examined by the court. The court may try to mediate a settlement between the parties by providing counselling. If a reconciliation is not achievable, the divorce process will go on.

2. Issuing orders for the recording of statements made under oath:

After the Court has reviewed the petition and found it to be satisfactory, it may order that the statements made by the parties be recorded under oath.

3. Order on First Motion and Approval of 6-Month Period Before Second Motion:

The second motion may be submitted six months to eighteen months from the date the divorce petition was presented to the Family Court. If the second motion is not filed in the allotted time, the court will not grant a divorce.

4. The Matter’s Final Hearing and Second Motion:

The parties are free to move on with the final hearings and present for the second motion when they have made up their minds to do so. Parties must appear in front of the Family Court in this phase and record statements. But the Supreme Court recently ruled that the court may choose to waive the six months that the parties were given. Therefore, in situations where the parties have genuinely resolved their differences regarding alimony, child custody, or any other outstanding issues, the six-month cooling-off period may be waived by the court if it determines that the waiting period will only make their suffering worse. The court will not issue a divorce order if the second motion is not filed within the allotted 18 months. Furthermore, it is a well-established legal principle that any party may revoke their assent at any point before the decree is passed.

5. Divorce Decree:

When a divorce is mutually agreed upon, both parties must have given their permission, and there cannot be any disagreements over property, maintenance, alimony, or child custody. Following a hearing with both parties, if the court is convinced that the claims made in the petition are valid and that there is no chance of reconciliation or cohabitation, it may issue a divorce decree, therefore completing the divorce. Related Post: Indian Divorce by Mutual Consent.

WHAT ARE THE DOCUMENTS OR INFORMATION REQUIRED FOR DIVORCE BY MUTUAL CONSENT?

If you’re wondering how to seek a divorce from your wife in India, you’ll need to know that there are a few paperwork that both parties must file for a divorce by mutual consent.

Provide evidence of your spouse and wife.
Financial and professional information about the husband and wife for any necessary asset division
Details on the husband and wife’s assets and properties as they would be needed for asset and property settlement
Certificate of Marriage
Details on the family history that would be needed to determine child custody, etc.
Pictures of the husband and wife from their wedding
Evidence that might demonstrate the husband and wife haven’t shared a home for longer than a year.
Evidence that demonstrates unsuccessful attempts at reconciliation, if necessary.

WHAT ARE THE LEGAL PROVISIONS FOR DIVORCE BY MUTUAL CONSENT?

Divorce laws in India permit couples to decide to separate amicably. For different societies, different marriage acts apply:

Hindu Marriage Act: According to Section 13B of the Hindu Marriage Act, 1955, a minimum of one year must pass between partners who are Hindu.
Special Marriage Act: In accordance with Section 28 of the 1954 Special Marriage Act, divorces with mutual consent are allowed.
Christians are subject to the two-year minimum separation requirement outlined in Section 10A of the Divorce Act 1869.
Parsi couples adhere to the 1936 Parsi Marriage Act.
Muslims follow their own set of rules based on both religion and personal law.

People in separated and married situations alike strive to uphold the sacredness and significance of marriage, regardless of their faith. In certain situations, before filing for divorce, parties may try a reconciliation process through third-party intervention, such as counselling or mediation. If both parties agree, the petitioner may move on with a divorce filing if these attempts fail.

HOW LONG DOES IT TAKE TO HAVE A MUTUAL CONSENT DIVORCEMENT?

When it comes to saving time, a mutual consent divorce is preferable to a disputed divorce. Additionally, there must be a six-month waiting time between the original and final divorce proceedings, however, the court may ignore this requirement in specific situations. Divorces with mutual consent usually take 18 to 24 months to complete.

IN INDIA, HOW DOES ONE GO ABOUT FILING FOR A ONE-SIDED OR CONTESTED DIVORCE?

With the majority of Indian divorce laws, a disputed divorce (one party filing for divorce while the other refuses to cooperate) may be filed for several reasons specified in the Act. Contacting a knowledgeable divorce attorney is the first step in the process of obtaining a disputed divorce. For your attorney to provide the greatest advice and represent your client in the best interests of the client, you will need to fully disclose your complete marital status to them.

1. Drafting the Divorce Petition:

As was previously said, only one party needs to get in touch with an attorney in a contested divorce. To draft the petition, the lawyer would need to hear the husband and wife’s explanation of the facts as well as an explanation of the circumstances must be filed with pertinent documents that support the assertions made in the petition. The party contesting would sign the petition, affidavits, and vakalatnama once it has been decided.

2. Petition Filing:

Upon completion of all necessary criteria and after the petition has been written, it will be filed before the appropriate family court, depending on the jurisdiction.

3. The Court Examines the Petition:

On the first hearing date, the petition is examined by the court, and the attorney for the party submitting the petition will also deliver opening arguments addressing the petition’s grounds and claims. The opposing side will appear in court and the court will issue a notice to be served to the other party if it is satisfied that the matter should move forward and be determined. The other party would then be sent a copy of the petition and the notice, and on the next hearing date, they would have to appear in person in court accompanied by legal counsel. Along with filing a reply to the divorce petition, the opposing party would also have to do the same.

5. Direction for Mediation:

In an effort to reach a mutually acceptable conclusion, the court will first try mediating the disagreement between the parties and may even require them to show up for mediation. If the mediation procedure proves unsuccessful, the court proceeds with the divorce proceedings once the mediation process is concluded.

6. Issue framing and evidence recording by the Court:

After that, the court would continue with the case, posing questions and taking evidence. To refute the accusations and justifications, both sides would have to provide evidence, face cross-examination, and call witnesses in favour of their positions. Given that it dictates how the matter will be settled, this is the most crucial step in the entire procedure.

7. sides ‘attorneys’ closing speeches:

Following the protracted process of gathering and presenting evidence and conducting cross-examinations, attorneys for both sides must make their closing statements in front of the judge. The announcement of the choice would then be scheduled for a certain day.

8. Court’s ultimate ruling:

In its final ruling, the judge would award a divorce order if it thought it appropriate. When issuing a verdict, consideration is given to the particular facts and circumstances of every case. Should the decision be rejected by one of the parties, they may, with the assistance of their divorce attorney, submit an appeal against the relevant decree. The appeal must be filed no later than three months from the date of the order.

WHAT ARE THE DOCUMENTS OR INFORMATION REQUIRED FOR ONE-SIDED OR CONTESTED DIVORCE IN INDIA?

In the event of a contentious divorce, many papers can be needed. A few more could be needed to support the cause or grounds for the divorce request. A list of some of the important documents is as follows:

Present evidence of your husband
Talk about your wife’s proof.
Images of the husband and wife together in marriage
Marriage license issued
Proof for the ground(s) (cruelty, adultery, desertion, insanity, leprosy, likelihood of death, conversion to another faith, etc.) upon which a divorce is sought
Evidence from professionals and finances about the division of assets and the need for maintenance and alimony, if applicable
Information on the kids, if custody is at stake.

WHERE DO YOU FILE THE DIVORCE PETITION DIVORCE PETITION?

The family court that has jurisdiction over your marital home—that is, the residence you last occupied as a married couple following your wedding—or the family court that is under the jurisdiction of the venue of the marriage ceremony is where your divorce petition is filed.

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