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What is the Divorce Procedure and Divorce Types in India?

The divorce procedure in India starts from the filing of the divorce petition and ends with the pronouncement of the final order of the divorce. The procedure of divorce is divided into six stages which are - filing of the petition, service of summons, response, trial, interim orders, and final order.
Written by:
Swati Shalini
Published on
12-Sep-19

What is divorce?

Divorce is a dissolution of marriage through a legal process by filing a petition in a court of law. When a court passes a divorce decree, it brings an end to the matrimonial alliance of spouses and therefore terminating all the marriage. Along with the separation of husband and wife, it also involves the division of property, assets, and the issue of custody of the child. Divorce procedures and laws in India vary with each religion.

What are the types of divorce under Hindu law?

                  Divorce under Hindu law is classified into two types –

Mutual Divorce: Under the Hindu Marriage Act, Mutual divorce is governed by Section 13-B. As the name suggests, in mutual divorce, both the parties i.e. husband and wife mutually agree and express their consent for peaceful separation. The husband and wife have to predetermine the issues relating to alimony and child custody if any. There are only two requirements for filing a mutual divorce, one is mutual consent and the other is that they have to live separately for at least one year. 

Contested Divorce: When divorce is initiated by either spouse it is termed as a Contested Divorce. Section 13 of the Hindu Marriage Act, 1955 provides the grounds for filing a contested divorce, some of which are, cruelty, conversion of religion, unsound mind, communicable disease or either spouse is unheard for more than seven year.

Irretrievable breakdown of marriage simply means that the spouses are unable to live happily and comfortably together. When the relationship reaches an extent from where it is impossible to repair the marriage, it is termed is irretrievable breakdown of the marriage. Certain situations like there is no affection between the husband and the wife, the couple are living separately, there are frequent quarrels or either one of a spouse is having an extramarital affair, leading to the breakdown of the marriage. 

As of now, there is no codified law that provides for the irretrievable breakdown of marriage as a ground for divorce. It is different from mutual consent divorce, as it does not depend on the volition of parties but is examined by the court whether the marriage can be saved or not based on facts and evidence. 

The Supreme Court has observed “Divorce cannot be granted just on the grounds of irretrievable breakdown of the marriage if the party seeking divorce on this ground is himself or herself at fault. It can be granted in those cases where both the parties have leveled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together “

What are the grounds for obtaining a contested divorce? 

Section 13 of the Hindu Marriage Act, 1955 expound grounds on which contested divorce can be obtained.

  1. Adultery- It is a criminal offense where either of the spouses is involved in sexual relations with someone out of the marriage.                         

  2. Cruelty- It is defined as a willful act that can cause danger to body, limb, life or to mental health. It can include causing pain, abusing, torturing mentally or physically.

  3. Desertion- When a spouse willfully abandons another without any intention of coming back, it is known as Desertion. Desertion for more than two years could be a valid ground for divorce.

  4. Religion Conversion- In a Hindu marriage, if either of the spouses ceases to be a Hindu then it can be considered as a ground for divorce.

  5. Mental Disorder- Mental disorder includes unsoundness of mind, mental illness, or such mental disorder which makes the person abnormally aggressive.

  6. Communicable Diseases and Leprosy- Leprosy is a contagious and chronic disease that causes lesions on skins and nerve damage.

  7. Spouse not heard of- If either of a spouse is not heard of for more than seven years, then it can be considered as a ground for divorce.

  8. Renunciation of the world- Under the Hindu Law, the “Renunciation of the world” is a ground for divorce, if either of the spouses has renounced the world and has entered a holy order.

Th  There are three other grounds for divorce available only to the wife which are:

  • Husband has been guilty of rape, sodomy or bestiality.

  • The wife was married before the age of fifteen.

  • A decree or order has been given by court awarding maintenance to the wife and they have not been living together for more than one year

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:

  1. the marriage was solemnized, or 

(the place where the marriage ceremony was duly performed.)

  1. the respondent, at the time of the presentation of the petition, resides, or

If both the parties are filing for divorce through a joint petition, then either of them can be respondent, so petition can be filed at either place of residence.

  1. the parties to the marriage last resided together, or

Suppose husband and wife lived 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 must have lived there for a substantial amount of time and not just visited the place for any occasion. in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or

              This sub-section carves out an except to section(iii) providing benefit to the wife. In case the petitioner is a wife then she can file the divorce petition at the place where she is residing 

  1. the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

This is a very 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 Indian courts.

What is the procedure for mutual consent divorce in India?

Following is the procedure to file for mutual divorce in India:

STEP 1: Draft a petition stating the reason for seeking a divorce and both the parties have agreed on it.

STEP 2: File the petition jointly through respective lawyers before the family court.

STEP 3: The court after the examination of the petition along with the documents will pass on the order for the recording of the statement on oath.

STEP 4: After this, a cooling period of six months’ time is given tot he parties in the hope of their reconciliation.

STEP 5: Post 6 months, if there no reconciliation, both the parties need to appear for the final hearing. (Parties have to appear for the second motion within 18 months from the date of filing the divorce petition.)

STEP 6: In the final hearing, the court passes the divorce decree dissolving the marriage

What are the documents required for a mutual consent divorce in India?

Documents required for a mutual consent divorce are:

  • Residence Proof of Husband and Wife

  • Marriage Certificate

  • Photographs of Husband and Wife

  • Proof to show that mediation was unsuccessful and the parties couldn’t be reconciled.

  • Evidence to show that husband and wife have been living separately for more than one year

  • Details of husband and wife profession and present incomes.

  • Income tax statements of three financial years.

  • Information regarding the family background of the couple.

  • Details of the property and assets owned by the spouse.

What is the procedure for a Contested Divorce in India?

The contested divorce is filed by either spouse based on the grounds mentioned above. The following are the steps to file for a Contested Divorce in India.

STEP 1: Draft a petition clearly stating the facts and grounds for seeking a divorce. This petition is filed before a family court having jurisdiction along with affidavits, vakalatnama, and documents relevant to the case.

STEP 2: If the court is satisfied after scrutinizing the petition and decides to move with the case, it sends a notice or summons the other party to appear on a decided date along with his/ her lawyer. 

STEP 3: At this stage, the court will suggest parties for mediation and if the mediation fails to resolve the issue, the court will continue with the divorce proceedings.

STEP 4: On a fixed date, both the parties will appear before the court, record their statements, submit evidence, get cross-examined and will present their witnesses if any. Then the counsels from both sides will present their final arguments.

STEP 5: At last, the court on a fixed date will deliver the verdict and pass a divorce decree. The aggrieved party can appeal to the order passed within 3 months from the passing of such order.

What are the documents required for a Contested Divorce in India?

Documents required for a Contested Divorce in India are:

  • Residence proof of husband and wife

  • Documents related to the financial status of husband and wife like income certificate, tax returns etc.

  • Marriage certificate

  • Documents proving the ground on which divorce is being filed.

What are the grounds and procedures for a divorce under the Muslim Law in India?

There are two processes to seek a divorce under the Muslim Law in India.

  1. Judicial process governed by The Dissolution of Muslim Marriages Act, 1939

  2. Extra-Judicial Process

  1. Judicial Process:

Section 2 of the said Act specifies the following grounds on which the Muslim women can seek a divorce in India:

    • The whereabouts of the husband have not been known for at least four years

    • The husband failed to provide maintenance for at least two years

    • The husband has been sentenced to imprisonment for at least seven years

    • The husband failed to comply with his marital obligations for at least three years without any reasonable cause

    • The husband was impotent at the time of marriage or suffering venereal diseases or have been of unsound mind for at least two years

    • The husband treated his wife with cruelty or was married before the age of fifteen

  1. Extra-Judicial Process:

Divorce by husband

Talaq-e-Sunnat

Talaq-i-ahasan: Under this husband needs to pronounce talaq only once orally during the period of tuhr (period between two mensuration). This talaq can be revoked anytime during the period of iddat.

   

Talaq-i-hasan: Under this, talaq needs to be pronounced by husband three times during three successive period of tuhrs. However, there should be no sexual intercourse during these periods.

 

Ila: 

Here, the husband swears i.e. take an oath of not having sexual intercourse for a period of four months. After four months, the marriage is dissolved.

 

Zihar

In this form, the husband compares his wife with his sister, mother or any other female within the prohibited degree. 

Divorce by Wife

Talaq-i-Tafweez

Also called delegated divorce because here the husband delegates his authority to divorce to his wife permanently or temporarly.

 

Lian

If the wife has been falsely charged of adultery then she is entitled to seek a judicial divorce.

Divorce by Mutual Consent

Khula

If the wife agrees to give consideration to her husband to free her from the marriage, then it is considered as mutual divorce. It is the will of the wife.

 

Mubarat

In this case, the husband and wife both don’t want to continue with marriage. So either of them can put forward the proposal for divorce and if the other party accepts it, it becomes irrevocable and marriage is dissolved.  

  

Is triple talaq a valid form of divorce?

Talaq-e-Biddat or Triple talaq is no more a valid form of divorce. Under Section 3 of The Muslim Women (Protection of Rights on Marriage) Act, 2019, triple talaq is held as void and illegal. Section 2(c) of the same act, defines that talaq under this act constitutes a talaq-e-biddat or similar form of talaq which is instantaneous. Hence, triple talaq oral or written or in electronic form shall be considered an illegal and cognizable and non-bailable offence under this act. 

What are the documents required for a divorce under the Muslim Law in India?

Following are the documents required for a divorce under the Muslim Law in India:

  • Nikahnama

  • Residence Proof of husband and wife

  • Income tax returns of at least two financial years

  • Documents relating to assets owned 

  • Evidence relating to allegations made like medical reports in cases of cruelty or venerable diseases.

What are the grounds and procedures for a Christian Divorce in India?

Under Section 10A of the Indian Divorce Act, 1869, there are two ways to file a Christian  Divorce in India.

  1. Mutual Divorce: If the parties mutually agree that they have not been able to live together peacefully and have been living separately for at least two years then they can file a petition for dissolution of marriage before the district court.

  2. Contested Divorce: A petition can be filed before the District Court either by the husband or wife on the following grounds, 

  • Adultery

  • ceased to be Christian 

  • unsound mind for a continuous period of not less than two years 

  • suffering from a virulent and incurable form of leprosy for least two years

  • not been heard of as being alive for a period of seven years or more 

  • willfully refusing to consummate the marriage

  • failed to comply with a decree for restitution of conjugal rights for a period of two years or more

  • deserted for at least two years

  • cruelty or husband is guilty of rape, sodomy or bestiality.

What are the documents required for a Christian Divorce in India?

Following are the documents required for a Christian Divorce in India:

  • Marriage Certificate 

  • Residence Proof of husband and wife

  • Income tax returns of at least two financial years

  • Documents relating to assets owned 

  • Current employment status and salary

What are the grounds and procedures for divorce under the Parsi Law in India?

Parsi Marriage and Divorce Act, 1936 enumerates the grounds on which marriage can be annulled, dissolved or divorced.

  • Section 30- If there are such circumstances arising out of natural causes making it impossible to consummate the marriage, either party can obtain nullity of marriage.

  • Section 31- If either of the spouses hasn’t heard of his/her husband/wife for more than seven years from persons who would have naturally known of him/her, then the marriage can be dissolved.

  • Section 32- This Section lays down the following nine grounds on which a person can sue for divorce. 

    • The other party willfully refuses to consummate the marriage within one year of ceremony.

    • If the person at the time of marriage was unaware that another party was of unsound mind, then the divorce can be instituted provided it is filed within three years from the date of marriage.

    • If the wife at the time of marriage was pregnant by another person and the husband didn’t know, then the divorce can be obtained within two years of marriage provided that there has been no marital intercourse.

    • If either of the spouses has been treated with cruelty, forced to prostitution, has been willfully hurt or another spouse has committed bigamy, rape, unnatural acts, adultery or is infected with venereal disease, then the divorce can be filed within two years.

    • If the other party is undergoing imprisonment for more than seven years and has already served one year of the sentenced punishment then the divorce can be filed.

    • If either of the spouses has deserted (i.e. willfully left with no intention of coming back and such act is not initiated by the other spouse) the other spouse for more than two years or has given up his religion.

    • Section 32B – This section provides for divorce by mutual consent provided that the consent has not been obtained through force or fraud.

In India, Parsis can initiate divorce only before Special Courts constituted under Section 19 and 20 of the Parsi Marriage and Divorce Act, 1936. Such courts are presided by officials knows as delegates who are Parsi and also it is a must to register the divorce at the registrar office.

What are the documents required for a divorce under the Parsi Law in India?

Following are the documents required for a divorce under the Parsi Law in India:

  1. Photographs

  2. Address proof of both the parties

  3. Income Tax returns

  4. Marriage certificate issued by the registrar 

  5. Financial statements

  6. Details relating to movable and immovable properties owned by the parties

Can a filed Divorce Petition be withdrawn? 

Yes, the divorce petition can be withdrawn at any time. You can either file an application for withdrawal or you can appear before the judge where your divorce has been filed and express your intention to withdraw the case with reason. 

What are some important aspects of divorce?

A divorce settlement often leads to one or all of the following –

1. Child Custody:

After the breakdown of the marriage, child custody is one of the most sensitive cases to be dealt with because in this case, children are the ones who suffer the most. Courts take certain factors like the welfare of children, financial condition, safe environment, education into consideration before granting the custody to either of the party. Custody can be of following types:

  • Physical Custody – The child shall be living with one of the parents, and the other parent can visit and meet the child. This type of custody makes sure that the child has a safe and healthy environment to grow.

  • Joint Custody – Instead of living with one parent, the child can live with both parents in rotation. The time duration can be decided by the parties or the Court. It helps the child to be in touch with both the parents.

  • Legal Custody – The parent who has legal custody means that he/she has the right to take a decision for his/her children. Generally, legal custody is given to both the parents, unless, the court thinks that there will be a conflict between the parents and they would never agree with each other.

  • Third-Party Custody – If neither the father nor the mother is fit to take care of the child, the court can appoint the third party to act as guardian.

Statutory Provision – The legal framework includes the personal law and secular law known as Guardians and Wards Act, 1890. 

2. Maintenance/Alimony

Maintenance or alimony is the financial assistance provided by husband/ wife to his/her spouse. It could be a lump sum one-time payment or paid at intervals and can be either permanent or temporary. Apart from personal law, a person of any religion can claim maintenance under Section 125 of Cr.P.C. 1973. Under this section, an order can be passed directing the husband to provide financial assistance to his parents, wife or his legitimate or illegitimate children.  

“Mere fact that the wife is earning, doesn’t relinquish the husband right to provide maintenance. Husband is still under an obligation to pay maintenance if her income is not sufficient enough to sustain”, says Advocate Sanjay Sandhu.

3. Property Division

Generally, under current law, the wife doesn’t have rights over the husband’s property after the divorce. Under Section 27 of the Hindu Marriage Act, the court is empowered to pass an order with respect to property jointly owned husband and wife. But the law is silent on the disposal of separate property. However, through Marriage Law’s (Amendment) Bill 2013, the government tried to change the position by providing fifty percent share to wife in husband’s property but the bill is still pending. 

Now in cases, where the property has been brought together or has been used by both the spouses, the wife can claim her part of share. It has been observed that Courts have also in order to protect the interest of wife, have made an order wherein the wife has been given claim over her husband’s property whether it was brought before or after the marriage. 

If the property is stridhan or mehr then the husband is obligated to return the same when asked by the wife as she is the exclusive owner of such property.

It is upto the party to prove whether the property is of joint nature or something one has inherited or bought solely from his/her own money. Any sort of contribution from either party over the property is taken into consideration in deciding the division. For example, Supreme Court in line with CEDAW ruling has observed even if the wife has not contributed financially, still, she gives her time and energy as a homemaker and therefore is also entitled to a share in the property.

“If the property has been brought together by husband and wife, where the husband has paid the price and registered in the name of wife. The Court shall regard the wife as the title holder of the property and therefore she can claim her share in the property as well,” says Advocate Sanjay Sandhu.

What are the differences between divorce, judicial separation, and annulment of marriage?

Divorce constitutes an end to the marriage. Once the divorce is obtained parties are free to remarry whereas, in case of judicial separation, they are not living together but still maintaining the status quo of husband and wife. Under judicial separation, they are not allowed to remarry. Annulment, on the other hand, makes the marriage null and void, treating it as if the marriage never existed. 

1. How long does it take to get a divorce in India?

 It takes a minimum of six months in case of mutual divorces. But in cases of a contested divorce, it depends on a lot of factors and can take more than two years. 

2. How much does a divorce cost in India? 

Total cost of divorce could be anywhere from thousands of rupees to lakhs depending on lawyer you hire. However, the minimum charge in cities like Delhi could be anywhere from Rs.25000 to Rs 30,000.

3. How much is the court fee for a divorce?

For filing fresh suit for divorce under the Hindu Marriage act is Rs.50 and under Special Marriage Act is Rs.100. Where the filing of a complaint or appeal under the Parsi Marriage Act is Rs. 500. And if filing a civil suit or petition under Section 125 of Crpc you need to pay a court fee of Rs.50

4. What is the fastest way to get a divorce in India?

The fastest way to get a divorce is to file for Mutual Consent Divorce where both the parties agree and are in favor of divorce.

5. Can the spouse consent for remarriage without getting a divorce from an existing partner?

No, it will be termed as bigamy and shall amount to an offence under Section 17 of Hindu Marriage Act and Section 494 of Indian Penal Code.

6. If either of the spouses is not heard for a long time, should the divorce be applied?

Spouse can file for divorce if he/she or anyone who would have generally known, haven’t heard from either spouse for more than seven years.

7. When can the divorced persons remarry?

In case of mutual consent divorce, there is no time bar on remarrying. However, in case contested divorce, 90 days time frame is provided to parties to file an appeal. If there is no appeal, then the person can remarry.

8. What Happens When the Married Couples Are Living Separately for Many Years?

When marries couples are living separately for many years, it constitutes a valid ground to seek divorce. Also, either party can file for restitution of conjugal rights, wherein, court will order the respondent to live with the applicant.

9. What Happens When Consent To Divorce is Obtained by Force, Fraud or Undue Influence?

The law is very clear, that when parties file for divorce through mutual consent, it should be free from any force, fraud or undue influence; otherwise court cannot make an order or pass decree. In case, if either party feels that decree as been passed when consent was not obtained lawfully, an appeal can be made.

10. Is the Statutory Cooling Off Period of 6 Months Mandatory?

 The six months cooling period is provided so that if there is any hope for reconciliation so that the divorce could be avoided. However, Supreme Court have observed in cases where parties have mutually consented for divorce, this cooling period can be waived off. To quote, the Court observed, “The waiting period will only prolong their agony, and application for waiver of waiting period can be filed in court within a week of their first motion for separation”.