This blog will definitely help you in understanding the meaning and procedure of filing a divorce petition under the Hindu Marriage Act, 1955 in India.
Before getting deeper into How to file a Divorce Petition let’s understand what is Divorce Petition?
The notion of the concept of divorce is quite ancient and its origin cannot be discovered. The term ‘divorce’ is derived from the Latin term ‘divortium’ which means ‘to turn aside/or to separate from/ or diversion’. It is adverted to as diversion because a husband is diverted from his wife. Hence, the divorce can be considered:
- Absolute- when the marriage stands dissolved,
- Limited- when the marital relation is suspended though the matrimonial bonds endure in full force which is now referred to as ‘Judicial Separation’.
Oxford English Dictionary defines ‘Divorce’ as ‘legal dissolution of marriage’ i.e., it is the permanent dissolution of marriage, the abandoning and/or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a cohabitant under the rule of law. Since there are no rights and obligations to maintain after this permanent separation, thus, parties after such dissolution are free to remarry to another person.
Table of Contents
What is a divorce petition?
A divorce begins with a divorce petition. When a marriage ceases, a divorce petition is a legal solution for the issue(s) that the parties to the marriage are not able to resolve. In a divorce petition, a petition is drafted by one spouse (the petitioner) and served on the other spouse (the respondent). This petition is then filed in a state court of the country where one of the spouses resides. It does not matter where the marriage was solemnized. The petition includes important information related to the marriage like the name of spouses, any children, any common property, child custody or spousal support, etc.
What are the types of divorce under Hindu Law?
Divorce under Hindu law is classified into two types:
- Mutual divorce: Section 13-B of the Hindu Marriage Act, 1955 provides for mutual divorce. As the name implies, in mutual divorce, both the parties i.e. husband and wife mutually agree and express their consent for well-disposed separation. The husband and wife have to predetermine the matters relating to alimony and child custody if any. The two requirements for filing a mutual divorce are: mutual consent and the spouse are living separately for at least one year.
- Contested Divorce: When divorce is initiated by either spouse or without the consent of either spouse it is termed as a Contested Divorce. Section 13 of the Hindu Marriage Act, 1955 provides the grounds for presenting a contested divorce, some of which are, adultery, cruelty, religious conversion, desertion, unsound mind, communicable diseases, or leprosy, either spouse is unheard of for more than seven-year or has renounced the world.
Where is the petition of divorce to be filed?
According to Section 19 of the Hindu Marriage Act, 1955, the petition of divorce can be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:
- The place where the marriage was solemnized- This means the place where the marriage ceremony was duly performed.
- The place of the resident of the respondent at the time of the presentation of the petition, or if the divorce is filed by both the parties through a joint petition, then either of them can be a respondent, which means a petition can be filed at either place of residence.
- The place where the parties to the marriage last resided together, or suppose a husband and wife cohabited together at a different place other than their initial residence then they can file a petition in a court having jurisdiction over that place. Last resided means that they need to have lived there for a considerable amount of time and not just visited the place for any occasion.
- In case the wife is the petitioner, the place of jurisdiction is where she is residing on the date of presentation of the petition or can file the divorce petition at the place where she is residing.
- If the respondent, at the time of the presentation of the petition, is cohabiting outside the territories to which this Act extends or has not been heard of as being alive for seven years or more by those persons who would naturally have heard of him if he were alive, then in such case the place of the petitioner residing at that time will be the place of jurisdiction for court. This is a crucial ground as it gives liberty to either spouse to file a petition at his/her place of residence in case their spouse has deserted them or is beyond the jurisdiction of the courts in India.
How to File a Divorce Petition for mutual consent in India?
Following is the procedure for filing a mutual consent divorce petition:
- The first step is to draft a joint petition for dissolution of marriage which has to be presented by the family court by both the spouses. The ground for seeking divorce must be mutual consent and reasons must be stated on both the parties have agreed on it. This petition must also be signed by both parties.
- After drafting the joint petition, it should be filed before the family court (if there is a family court) or original court of civil jurisdiction through respective lawyers. Then the parties represented by respective lawyers have to appear before the court. The court would critically examine the petition along with all the documents bestowed in the court. The court may even endeavor to conduct reconciliation between the spouses, however, if this is not feasible, the matter proceeds for further follow-ups.
- After the scrutinization of the petition along with the documents, the court will pass the order for the recording of the party’s statement on oath.
- Once the statements are recorded, the court will pass an order for the first motion. After this, a cooling period of six months is given to the parties in the hope of their reconciliation before they can file the second motion. The maximum limit to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.
- After the expiration of 6 months, if there is no reconciliation, both the parties need to appear for the final hearing.
- When the court is satisfied after hearing the parties that the allegations in the petition are true and there is no possibility of any reconciliation or cohabitation, it can pass a decree declaring the marriage to be dissolved. Since the dissolution is on mutual consent, there shall not be any differences left related to contentions regarding alimony, child custody, maintenance, property, etc. The divorce is final once the decree of divorce has been passed by the Court.
What are the documents needed for a mutual consent divorce petition?
- Documents required for a mutual consent divorce are as follows:
- Residence Certificate of Husband and Wife.
- Original Marriage Certificate.
- Photographs of Husband and Wife.
- Proof to confirm that mediation was unsuccessful and therefore, the parties couldn’t be reconciled.
- Any evidence which proves that husband and wife have been living separately for more than one year.
- Particulars of husband and wife profession and present incomes.
- Income tax statements of both spouses for three financial years.
- Any information regarding the family background of the couple.
- Full details of the property and assets owned by the spouse.
How to file a divorce petition for a contested divorce in India?
Following is the procedure for filing a contested divorce petition:
- The first step is to draft a petition for dissolution of marriage clearly stating the facts and grounds for seeking a divorce. The grounds for contested divorce have been mentioned under section 13 of the Hindu Marriage Act, 1955. The petition is presented before a family court having jurisdiction to move the petition. The petition must be filed along with affidavits, vakalatnama, or other documents relevant to the case.
- After filing the petition, the court would critically examine the petition along with all the documents bestowed in the court. Once the court is satisfied after scrutinizing the petition, the parties to the petition are summoned by a notice and they have to appear on a decided date along with their respective lawyers.
- The court may even give suggestions to the parties for mediation, however, if the mediation is not feasible and fails to resolve the dispute, the matter proceeds for further follow-ups.
- The parties will then, on the fixed date appear before the court to record their statements, submit evidence, get cross-examined, and will present their witnesses if any. Then the counsels from both sides will deliver their final arguments.
- At last, the court on a fixed date will deliver the verdict after being satisfied with the arguments of the parties, passes a divorce decree. If not satisfied with the decision of the court, an aggrieved party can appeal to the order passed within 3 months from the passing of such order in the higher court.
What are the documents needed for a contested divorce petition in India?
Documents required for a Contested Divorce petition in India are as follows:
- Residence certificate of husband and wife
- Documents describing the financial status of husband and wife like income certificates, tax returns, etc.
- Original Marriage certificate.
- Proof to confirm that mediation was unsuccessful and therefore, the parties couldn’t be reconciled.
- Documents verifying the ground on which divorce is being filed.
What is the court fee for a divorce petition?
When a fresh suit is filed for divorce under the Hindu Marriage Act, the fee is Rs. 50, and under the Special Marriage Act is Rs. 100. The fee for the filing of a petition or appeal under the Parsi Marriage Act is Rs. 500. If filing a civil suit or petition under Section 125 of CrPC i.e. for maintenance you need to pay a court fee of Rs. 50
Important points to keep in Mind while filing for a Divorce petition
- The fastest way to get a divorce is to file a petition for Mutual Consent Divorce where both the parties agree and are in favour of divorce.
- The disposal of a case takes at least six months in case of mutual divorces. But in cases of a contested divorce, it depends on a lot of different factors and may take two years.
- The total cost of divorce could range from thousands of rupees to lakhs depending on the lawyer you hire. However, the minimum charge in metropolitan cities like Delhi or Mumbai might be anywhere from Rs.25,000 to Rs 30,000.
- A spouse can file for divorce if he/she or anyone has known the person, hasn’t heard from either spouse for more than seven years.
- In the case of mutual consent divorce, there is no time-bar on remarrying. However, in case of a contested divorce, 90 days limitation time is provided to parties to file an appeal. If no appeal is made, then the person can remarry.
- When parties file for divorce through mutual consent, they ought to be free from any force, fraud, or undue influence; otherwise, the court cannot make an order or pass a decree. In case, if either party believes that decree has been passed when consent was not obtained lawfully, an appeal can be made.
- The six months cooling period is provided to create a possibility for reconciliation so that the divorce could be avoided. However, the Supreme Court has witnessed that cooling period can be waived off in cases where parties have mutually consented for divorce.