What is the Divorce Procedure and divorce types in India?
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. Read the blog to know the procedure of divorce in detail.
By Abhishek Thakkar in Divorce
Nov. 22, 2018, 7:35 p.m.
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In Law, a divorce procedure or process basically starts off with the filing of a divorce petition. The way this whole procedure of divorce in India works is when the said petition is written by either one of the parties involved in the divorce process and then served to the other party.
Once you know how to file for divorce in India in the respective state court, depending on the country where either one of the parties resides, the Indian divorce procedure ascends.
There was a time in the Indian society where divorce used to be considered as a sin or was looked down upon in one’s life and as a result even after bearing a lot of marital trouble and issues spouses used to cope up with a failed and painful marital tie.
Nowadays, with time as the society has evolved views and perception towards life, a lot has changed on this front showing a dramatic increase in divorce proceedings.
Since divorce is considered to be one of the most traumatic and painful experiences for any married couple, there are many searches done on how to get divorce from husband in India or how to file for divorce from the wife in India. It would add salt to the injury if the procedures are not properly followed, as it can get extremely exorbitant as well as time-consuming.
In the Indian judicial system with respect to other legal proceedings, the rate of disposal of divorce cases is much higher, considering the fact, if all procedures are followed correctly with the help of a competent lawyer and in accordance with law.
The Indian Divorce Procedure, on the other hand, can be broadly classified into two different categories:
- Divorce by Mutual Consent
- Contested Divorce
Let us take a look into some of the statutory laws governing the whole procedure of divorce in India along with specific guidelines which need to be followed.
Table of Content:
Consult: Top Divorce Lawyers in India
Statutory laws which govern divorce procedure in India
Before getting into the details of all the statutory laws, one needs to be clear on what is the procedure of divorce in India.
In our country, marriage and dissolution of marriage come under most personal matters and the laws related to marriage and divorce have been framed mostly on the basis of customs and rights of different religion. Therefore, there are specific laws for the procedure of divorce in India binding on people belonging to specific religions.
The Hindus, Buddhists, Sikhs, and Jains are governed by the Hindu Marriage Act, 1955.
Muslims by the Dissolution of Muslim Marriages Act, 1939.
The Parsis are governed by the Parsi Marriage and Divorce Act, 1936.
The Christians are governed by the Indian Divorce Act, 1869.
The Special Marriage Act, 1956 is known to govern all inter-community and civil marriages.
Types of Divorce
Divorce can be obtained in a couple of ways. What one needs to know first is how to file divorce in India. Either with the mutual consent or, where either of the spouses sends another, a notice for divorce, which is also known as contested divorce.
Before filing for the finality of the divorce, the concerned parties need to be aware of what is the procedure for divorce along with the different divorce types in India.
Divorce with Mutual Consent
In India, mutual consent procedure of divorce in India is much less time consuming than the contested divorce process. When both the spouses agree to dissolve a disturbed marriage they can pursue the Indian divorce procedure with Mutual Consent.
In this process with the help of good divorce lawyer, a Joint divorce petition will be drafted, signed and verified by both husband and wife which then needs to be filed before the appropriate court.
After filing of the joint petition the court will give a period of six to eighteen months to the parties. This time period is called the cooling off phase. If within this time frame the spouses do not reconcile then the parties can move towards filing for divorce via filing the second motion.
After filing the second motion, if the court is satisfied that both the parties have given their consent for the divorce, free from any coercion or undue influence then the court will pass a decree of Divorce. On the basis of the terms of settlement which both the parties have agreed and written in their divorce petition, Indian divorce procedure is then complete under mutual consent.
Point to be noted that according to law (Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954) to file a joint petition of Divorce with Mutual Consent the couple should be separated for over a year or two years (as per the relevant statute) Often, it has been seen that even when either of the couples is reluctant, they still agree to such a divorce because it is relatively less expensive and not as traumatic as a contested divorce.
Several legal rights have been provided to the couples who enter into a marital tie. If any of those rights get infringed by any party then the other has the liberty to file a petition of divorce.
Related Read: How to file for mutual & contested divorce online
What is the Divorce Law in India?
The rights are as follows, although some of them are not applicable to all religions.
The Hindu Marriage Act, 1955
- Domestic Violence,
- Conversion to another religion,
- Mental disorder,
- Communicable disease,
- Renunciation from the world,
- Presumption of death etc.
Dissolution of Muslim Marriage Act:
According to the Muslim personal divorce laws, a Muslim man can give divorce to his wife without dragging himself to court but on the other hand if a Muslim woman to dissolve the marriage through divorce then permission either has to be taken from her husband to give her divorce or can file a divorce petition under the Dissolution of Muslim Marriage Act on the basis of the following grounds -
- The whereabouts of the husband are not known for a period of at least four years,
- Cases whereby no form of maintenance is provided by the husband for a period of around two years,
- The husband being imprisoned for a period of seven years or more,
- Failure on the part of the husband to fulfil marital obligations for a period of at least three years,
- If the husband has been suffering from leprosy or has been insane for a period of two years.
- Cases whereby the husband is impotent.
Indian Divorce Act:
The grounds of divorce for a Christian couple have been mentioned in the Indian Divorce Act which is as follows:
- Converting into a different religion by the husband and marriage with some other girl.
- Bigamy with Adultery,
- Husband has committed rape, sodomy or bestiality,
- Cruelty with Adultery,
- Adultery with Desertion: Timeframe for at least 2 years.
Parsi Marriage and Divorce Act:
A Parsi spouse can obtain a divorce by filing a Divorce petition on the ground mentioned in the Parsi Marriage and Divorce Act, which are as follows:
- Marriage not being consummated even after a year has passed.
- When either one of the spouses was of unsound mind during the time of marriage or this fact was hidden during the time of marriage.
- When either one of the spouses is suffering from leprosy or some form of mental disorder.
- In cases whereby the wife is pregnant with another man’s child during the time of marriage.
- The wife started practising prostitution.
- Whereby the spouse has been imprisoned for a period of seven years or more,
- If any of the spouses has deserted for a period of two years or more.
- If either one of the Spouse has converted into a religion and has ceased to be a Parsi.
Special Marriage Act, 1956:
This Act differs from the customary Hindu Marriage Act. One needs to have an idea of what is process of divorce in this scenario. Civil marriages i.e. the inter-caste or inter-religion marriages are governed by this Act and so is the divorce proceedings of the parties. The grounds of divorce to initiate the divorce process under this Act are as follows:
- Firstly having voluntary sexual Intercourse with any other person other than the spouse,
- Secondly in the matters relating to desertion. The period being around 2 years or more.
- Thirdly the spouse being imprisoned under the Indian Penal Code for a period of 7 years or more,
- Fourthly in cases related to Cruelty,
- Any form of Venereal or Communicable disease,
- If the spouse has not been heard off being alive for a total period of 7 years or more and lastly.
- Judicial Separation.
Suggested Read: Guide on Divorce laws In India
What is the procedure for divorce?
How to take divorce in India has few important and vital procedures which need to be followed by every citizen. The steps include:
Drafting and Filing of Divorce Petition -
In India, the first step in the divorce process is the filing of divorce petition before the appropriate family court with proper court fees.
The divorce petition can be filed in three territorial jurisdictions of Court
- Where the couple was last residing as husband and wife,
- Where the husband is presently living;
- Where the wife is presently living
The party who seeks the divorce from another has to file the petition before the appropriate court to initiate the divorce procedure in India. The grounds of divorce must be mentioned in the petition and the grounds must be substantiated with evidence at a later stage of the proceeding i.e. at the time of trial. You must need the advice and guidance of a competent and experienced divorce lawyer for the drafting of the petition.
Service of Summons -
The next step after successfully filing a divorce petition is the service of summons on to the other party and informing them that the divorce process has been initiated against them by their spouse. The summons can be served via speed post along with a covering letter written on the letter pad of the Advocate.
After receiving the summons the party against whom the divorce has been filed has to appear before the court on the date mentioned in the summons. if the other party against whom the divorce petition is filed doesn’t appear even after receiving the Summons the judge can give the opportunity of ex-parte hearing to the petitioner and after the hearing, the court will pass an ex parte order of divorce and put an end to the divorce process.
The next step of divorce procedure in India is conducting the trial. After submission of their respective petitions, the court will hear both the parties along with their evidence and witnesses. And the examinations in chief and cross-examinations of parties as well as witnesses will be conducted by their respective lawyers.
Interim Orders –
Another aspect of the divorce procedure in India is interim orders. Any party can file a petition to get a temporary order in respect of maintenance and child custody before the court during the pendency of the divorce proceeding and after hearing and after perusal of document if the court is satisfied the court will pass interim orders. This interim order stays in force till the disposal of the divorce proceeding.
For Example: section 24 of The Hindu Marriage Act, 1955 : if the situation is such that either the wife or the husband has no independent income which is sufficient for her or him to support her or his livelihood and the necessary expenses of the proceeding then during the pendency of the divorce procedure in India a relief of maintenance can be claimed. In this scenario, the claimant has to satisfy the court that he or she doesn’t have any independent income to support him or her and the other party has sufficient income.
This is one of the crucial steps of a divorce procedure after the trial. In this step, the respective advocates will argue before the court to establish the contentions of their clients on the basis of the documentary evidence filed and depositions of the witnesses. In this step, the conduct of the lawyer matters a lot to win the divorce proceeding.
Final Order -
The pronouncement of the final order of the divorce is the last step in a divorce procedure. After the completion of all the preceding stages, the court will pass a final order which will dissolve the marriage entirely. If any party is not satisfied with the final order of the trial court then they will have the liberty to move before the higher Courts.
Most important factors in Divorce
There are mainly three important factors which need to be sorted out at the time of Divorce. They include
Custody of Child
Settlement of property
Alimony: It is the obligation of the married couple to support each other which subsists even after the dissolution of marriage through divorce. Husband or wife whoever is incapable to support himself or herself it is the obligation of another party to support him or her and this claim of alimony gets stronger when the husband or wife is ready to take the custody of the child.
Custody of child: In case of divorce with mutual consent, the custody of the child gets amicably settled between the parties. But in case of contested divorce the court examine the parenting ability of both the husband and wife and after that if necessary the court talk to the child in a friendly environment(mainly at his/her chamber) to understand the child’s desire and usually the order of custody passed on the best interest of the child. Practically it has been seen in most of the divorce cases that the non-working mothers get the custody of the child and the father bear the expenditure of the child.
Settlement of property: At the time of divorce the property gets settled according to ownership of the spouses.
Exclusive right of a woman over Stridhan: movable (jewellery or other expensive articles) or immovable property which a woman has received from her parent or parental relatives or from her in-laws or matrimonial relatives at the time of marriage or after marriage is known as Stridhan property and she has the exclusive right over those properties which remains with her even after the marriage.
Necessary documents for divorce
The necessary documents include:
Address proof of both the spouses
Marriage certificate in case of non-availability of Marriage certificate invitation card of marriage or picture of marriage.
Evidence proving spouses are living separately since more than a year
Details of the profession and present earnings.
Details of movable and immovable assets owned by the petitioner.
Further Read: Child Custody Laws in India
How long does it take to get a divorce in India?
Usually, the time duration for divorce proceedings in India varies and differ from place to place and from case to case. Contested divorce matters usually take around 18 to 24 months. On the other hand cases of mutual divorce vary from around 4 weeks to 7 months.