Divorce, also known as dissolution of marriage, is the process of ending a marriage or marital partnership. Divorce implies the reorganization or cancellation of legal responsibilities and obligations of marriage, therefore severing the bonds of matrimony between a married couple under the country’s or state’s unique rule of law.
This article provides a step-by-step procedure of how to file a Divorce in India!
A divorce is a traumatic experience to go through – be it any stage of life. It can be a long-winded and costly affair with respect to the divorce process in India.
The rules of divorce in India are connected to religion, and in this article, how to file a divorce in India is spoken about.
1. Hindus, Sikhs, Buddhists, and Jains are governed by the Hindu Marriage Act, 1955.
2. Muslims are governed by the Dissolution of Muslim Marriages Act, 1939.
3. Parsis are governed by the Parsi Marriage and Divorce Act, 1936.
4. Christians by the Indian Divorce Act, 1869
5. Marriages between two religions are governed by the Special Marriage Act, 1956.
The divorce in India started with the Hindu Marriage Act, 1955. Under this act, both the husband and wife have been given a right to get their marriage dissolved on more than one ground, specifically with regards to Section 13.
Table of Contents
How to file a divorce in India?
Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provide for divorce of Mutual Consent. Please note for worst-case scenarios, if the concept of consented divorce is not able to pan out – ‘Contested Divorce’ is the last resort, this is where the other party is not willing to get a divorce.
There are conditions that have to be followed and the procedure for Divorce in India falls under Section 13B of the Hindu Marriage Act, and they are as follows:
- The partners have been living separately for a minimum period of a year
- They are unable to reconcile their differences and live together
- The partners have mutually agreed that the marriage has come to an end, and must be dissolved. A mutually consented divorce can be filed.
The divorce process in India begins with the filing of a divorce petition.
Now, if your questions are:
1. How to file a divorce petition?
2. How to file a divorce in India without a lawyer?
Not to worry. Here is the process.
The entire process of filing a divorce starts with the divorce petition by the parties associated with the matter. The divorce process and notice of the same are served to each stakeholder.
According to the Hindu Marriage Act, 1955, a petition filed under ‘mutual divorce’ can be carried forward if the two parties have decided to bid adieu and part their ways, legally.
If not, and one member wishes to part their ways with another (who isn’t willing to give consent) – it falls under ‘Contested Divorce’.
Produce a divorce notice to your spouse, this is towards clarifying the emotions, a legal and binding platform to initiate your thoughts on discontinuing your marriage.
Legal notice for divorce will bring clarity to the future of the relationship. The legal notice is towards the communication of current feelings and is a formal one to break the marriage.
How much time does it take to get a Divorce in India?
Within six months, divorce by mutual consent can be achieved, although no petition in such a case can be submitted within the first year of marriage. Between the first and second motions, there must be a six-month break. In rare situations, the court may waive the cooling-off period. So, in the event of mutual agreement divorce, it normally takes 18-24 months.
Because of the complexity and likelihood that either spouse might remarry, the duration of a contentious divorce is longer, ranging from three to five years.
The procedure for mutual divorce in India is as below:
Step 1: Petition to file for a divorce
If you are wondering ‘How to get a divorce in India from wife’ or ‘How to get a divorce from husband’ – it starts with a joint petition for disbanding the marriage. It will be presented to the family court by the parties concerned, stating that they are unable to follow the conditions and they have come to terms to part their ways.
The parties sign the petition.
Step 2: The parties must appear before the court
After the procedure has been initiated, the parties appear before the court and the entity shall do its due diligence. The court may try to reconcile the spouses, if in vain, the divorce process proceeds.
Step 3: Record statements under oath
After the petition is scrutinized and satisfied by the court, the statements of all concerned parties will be recorded under oath.
Step 4: The first motion will be passed
The statements are recorded, an order is passed, and six months of time is provided for the second motion to be passed.
Step 5: Final hearing of the petition
After the parties appear for the second motion, and if everything is a smooth sail, they can proceed with the final hearings of the case.
Step 6: Verdict on the Divorce
When it comes to a mutual divorce, both parties have given consent, and there will not be any differences regarding alimony, custody of children, maintenance, property, etc
A harmonious agreement where the spouses are on the same page is important to dissolve the marriage. If the court is satisfied after hearing the allegations – and if there is no means of reconciliation and cohabitation, the verdict shall pass on as ‘marriage dissolved’.
If you are concerned about ‘how to file a divorce online’ – it is feasible. Lawyers, presenting your arguments in Family Court, and recurring meetings to stick to the process is crucial. Please visit this link to know more.
The procedure for Contested Divorce in India is as below:
Step 1: The petition is filed by the husband or wife:
As previously indicated, in a contentious divorce, only one side is necessary to contact a lawyer. The husband or wife seeking divorce would be expected to clarify the facts, and the lawyer would be obliged to create the petition based on the facts and circumstances as stated and narrated by the husband or wife requesting divorce.
Step 2: The court issues a summons and asks the other spouse to respond:
Once the petition has been prepared and all formalities have been fulfilled, it would be filed before the appropriate family court, depending upon the jurisdiction.
Step 3: The court may advise that the parties reconcile:
On the first day of the hearing, the court would examine the petition and hear the lawyer making the petition’s opening arguments (concerning the claims and reasons).
Step 4: Witnesses and evidence are examined and cross-examined:
Once the court is satisfied that the case should go to adjudication, it will issue a notice to be served on the opposing party. After then, the other party would receive a copy of the petition and the notice, and he or she would be required to attend in court with their counsel on the next hearing date. The opposing party would be required to respond to the divorce petition as well as any further applications that may be filed.
Step 5: Both sides’ attorneys make their last arguments:
To begin, the Court will attempt to mediate the dispute between the parties and may order them to attend Mediation in order to achieve an acceptable agreement. After appearing in front of a mediator for mediation, if the mediation is unsuccessful or fruitless, the court will proceed with the divorce procedures.
Step 6: The court issues a divorce decree:
The court would next proceed to formulate issues and record evidence in the case. Both parties would have to present evidence, be cross-examined, and provide supporting witnesses. This is the most important component of the entire process since it determines the case’s outcome.
During the discussions between both parties, there are three aspects one must consider to reach a consensus.
i) Alimony and maintenance issues. As per law, there is no minimum or maximum amount. It could be no money or any money.
ii) Custody of their young ones is a crucial aspect the spouses must consider. This must be spoken to amongst the stakeholders and they must come to a consensus on shared or exclusive custody of the children.
iii) Property is the next issue. Husbands and wives should integrate their assets and distribute them accordingly. This includes movable and immovable property. It must be agreed by both parties – even to the minute of the decisions – which includes bank account(s).
Documents that are required to successfully continue the divorce process:
- Address proof of the spouse
- Certificate of marriage
- Passport size photograph (4) of husband and wife
- Evidence to support the claim that husband and wife have been living apart for more than one year.
- Evidence to support the failed attempts to pacify each other and reconcile the marriage.
- Income tax statements for 3 years
- Professional details
- Family background details
- Details of properties that are owned by both parties
Marriage is considered to be a sacred bond in any religion. The concept of ‘divorce’ was taboo, still is, but the degree of it has certainly reduced. Presently, our justice system and laws provide various ways to step out of an unhappy marriage. Lawmakers must deal with situations like these in a cautious manner and do a thorough check.