From hiring a lawyer to attending court proceedings, divorce can take a toll on the parties if they are unaware of the exact procedure of divorce. It begins with a tough decision to get a divorce. The process is lengthy and financially and emotionally draining. The turmoil of getting divorced increases in case the parties have children.
The legal process of a divorce depends upon the type of divorce parties are opting for. If a divorce is contested, it could take more than a year for the marriage to be dissolved. If it is a divorce through mutual consent, the process will be relatively quicker and easier. Check out this mini-guide to the divorce process in India.
Divorce Through Mutual Consent: When both the parties i.e., the husband and wife mutually agree to obtain a divorce, the courts will grant a decree for divorce with mutual consent. The couple should prove that they have been separated for over a year and that they have been unable to live together. The main characteristic of divorce through mutual consent is that matters such as children’s custody, maintenance and property rights could be agreed to mutually. If the courts believe that there is a chance of reconciliation amongst the parties then it will order a duration of 6 to 18 months between the date the divorce petition is filed and the divorce decree is pronounced. It is important to note that living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period.
Section 13B of the Hindu Marriage Act, 1955 talks about mutual divorce. Divorce through mutual consent is relatively inexpensive and quicker than a contested divorce.
Withdrawal of Consent: Consent given for divorce by ‘mutual consent' can be withdrawn by either the wife or the husband even after the expiry of the stipulated 18-month period and in such cases, a decree for divorce will not be granted.
Contested Divorce: In case of a contested divorce, there are specific grounds listed under Section 13 of the Hindu Marriage Act, 1955 on which the petition can be submitted. The husband and wife are in a conflict when opting for a contested divorce. More often than not, matters such as child custody, maintenance etc are far from resolution. There are 11 grounds for divorce available to both the husband and wife under the law, out of which 5 exclusive grounds are available to the wife against her husband. These grounds are-
1. Cruelty
Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.
2. Adultery
In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offense. The wife may, of course, file for divorce as a civil remedy. If on the other hand, a wife commits adultery, she cannot be charged with a criminal offense, though the husband can seek prosecution of the adulterer male for adultery.
3. Desertion
One spouse deserting the other without reasonable cause (cruelty, for example) is the reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.
4. Conversion
Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before a divorce can be filed.
5. Mental Disorder
If the spouse is incapable of performing the normal duties required in marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.
6. Communicable Disease
If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.
7. Renunciation of the World
If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce.
8. Presumption of Death
If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.
Apart from these grounds, there are additional grounds for divorce available to a wife. They consist of firstly, indulgence of the husband in rape or sodomy, secondly, if a marriage has been solemnized before the Hindu Marriage Act, and the husband has remarried in spite of the fact that the first wife was alive then the first wife can file a divorce petition, thirdly, if a girl has been married before the attainment of 15 years of age and renounces her marriage before she has attained 18 years of age, fourthly, in cases of non-cohabitation for a period of one year and the husband has neglected the judgement of fulfilling the maintenance awarded to the wife by the court. Considering anyone of the above grounds, a wife can how to file a divorce petition.
Factors considered during a divorce: There are three aspects regarding which a husband and wife have to reach a consensus. One is alimony or maintenance issues. As per law, there is no minimum or maximum limit of support. It could be any figure or no figure at all. The second consideration is the custody of the child. This must necessarily be worked out between the parties, as it is inevitably what requires the greatest amount of time in divorce without mutual consent. Child custody in a mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses. The third is the property. The husband and wife must decide who gets what part of the jointly held property or matrimonial home. This includes both movable and immovable property. Right down to the bank accounts, everything must be divided. It is not necessary for it to be fair, so long as it is agreed to by both parties.
Cost of a divorce: Court fees for filing a divorce are low; the cost of a divorce is mainly in the fees you pay your lawyer. Lawyers tend to charge fees for appearing in court and doing any other work. Depending on how intensely it is fought, therefore, a divorce may cost anywhere from the low ten thousand to lakhs of rupees.
Documents required to file for divorce:
- Address proof of husband
- Address proof of wife
- Marriage certificate
- Four passport size photographs of a marriage of husband and wife
- Evidence proving spouses are living separately since more than a year
- Income tax statements for the last 2-3 years
- Details of the profession and present remuneration
- Details of properties and other assets owned by the petitioner
Withdrawing a petition for divorce is one of the easiest things to do, and the law does all it can to encourage couples to reconcile. The parties can simply file an application to withdraw the divorce case in the family court. A counselor meets with the couple to reconfirm their decision in person to protect them and also to ensure that are voluntarily and willingly withdrawing the petition. The counselor's report is then sent to the judge who can pass his or her judgment/decree on the same day. Even if the parties don't have a date withdrawal of Divorce Petition in the court, their lawyer can request for the matter to be heard.
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