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How to file a divorce in India?

July 17, 2021

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 mutual 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 mutual divorce in India starts 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. 

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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: 

  1. The partners have been living separately for a minimum period of a year 
  2. They are unable to reconcile their differences and live together 
  3. 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.

Process of How to file a Divorce in India

How to file a Divorce in India

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. 

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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. 

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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). 

With respect to a ‘Contested Divorce’, there are specific grounds to which it can be filed. 

The concerned party cannot seek a divorce just because they ‘feel like it’. The reasons to seek a Contested Divorce are as follows: 

1. Cruelty

Cruelty can be considered mental or physical torture. If a spouse is under the apprehension that their significant other behavior is injurious – that is sufficient ground for obtaining a divorce.

2. Adultery

If a man commits adulty, he can be charged with a criminal offense, but not vice-versa. Nevertheless, this is the ground for seeking a divorce. 

3. Desertion

If one party seems to be deserting another without reasonable cause – it is ground for seeking a divorce. Abandonment is not tolerated, but there must be proof of this act. The isolation or abandonment must have lasted for a minimum of two years before seeking a petition to file for divorce. 

4. Conversion

If there is the behavior of one spouse forcing another to convert to a different community, it is cause for seeking a divorce. There is no ‘minimum’ amount of time required to file for a petition, but there must be proof. 

5. Mental Disorder

If the significant other is incapable of performing normal duties, due to being mentally affected, divorce is an option that can be considered and sought. The mental illness should be much to a larger extent that says the spouse is incapable of being ‘normal’. 

6. Communicable Diseases

If one of the partners suffers from some sort of communicable disease, like, gonorrhea, syphilis, HIV, or a virus/ bacterial infection that is incurable – the party can obtain a divorce. 

7. Renunciation of the world: If one of the parties wishes to abstain from the usual way of living life and, for example, wants to become a ‘sannyasa, this is ground to seek for a divorce. 

8. Presumption of death

If the spouse has not been found or heard of being alive for a minimum period of seven years, the aggrieved party can seek counsel and file for a divorce. 

Documents that are required to successfully continue the divorce process:

  1. Address proof of the spouse
  2. Certificate of marriage
  3. Passport size photograph (4) of husband and wife
  4. Evidence to support the claim that husband and wife have been living apart for more than one year.
  5. Evidence to support the failed attempts to pacify each other and reconcile the marriage.
  6. Income tax statements for 3 years
  7. Professional details
  8. Family background details
  9. 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. 

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