DIVORCE PROCEDURE IN INDIA (Divorce in India)

Divorce Procedure in India

What is a Divorce in India which needs Divorce Procedure in India?

Termination of marriage or marital union or dissolution of marriage is known as divorce in India which needs Divorce Procedure in India.

Filing restriction for divorce in India:

If one wants to file petition for divorce in India it can be filed after one year of marriage. The reason behind the restriction is to give full opportunity to both the parties to make their marriage a success. If the petitioner has suffered extreme hardship the court may make an exception to the rule.

Divorce types in India:

The types of divorce are as follows:

1. Contesting
2. By Mutual Consent

Grounds for Divorce in India

The grounds for divorce are not all the same for all religions. The grounds for divorce depend under which marriage act one has got married. The grounds under different acts are as follows:

Acts	Hindu Marriage Act, 1955	Dissolution of Muslim Marriage Act, 1939	Indian Divorce Act, 1869	Special Marriage Act, 1954
Section of Divorce	Section 13	Section 2	Section 10	Section 27
Grounds	1. Adultery 2. Cruelty 3. Desertion which continuous for a period of not less than 2 years. 4. Unsoundness of mind or suffering from mental disorder 5. Converted into another religion 6. Renounced from the world 7. Suffering from communicable disease 8. For a period of more than 7 years a person is presumed to be dead.	1. Husband’s whereabouts are not known for a period of 4 years. 2. For 2 years the husband has failed to provide maintenance for her. 3. The husband is imprisoned for 7 years or more. 4. Insane for 2 years or suffering from venereal disease. 5. Husband has failed to perform marital obligations for 3 years. 6. The husband is impotent.	1. Adultery 2. Conversion of religion 3. Unsoundness of mind which continuous for a period of 2 years. 4. Suffering from leprosy 5. Suffering from communicable disease  6. Deserted for a continuous period of 2 years. 7. Refused willfully to consummate the marriage 8. For a period of more than 7 years a person is presumed to be dead	1. Adultery 2. Desertion which continue for a period of not less than 2 years. 3. Cruelty 4. Unsound mind or mental disorder 5. Suffering from communicable disease. 6. Presumed to be dead for 7 years or more.

*according to Muslim personal law if a wife wants to dissolve her marriage she can dissolve her marriage by filing a petition in court based on the above-mentioned grounds in the Dissolution Of Muslim Marriage Act, 1939. But this is not the case for a Muslim man, he can divorce his wife even without going to court.

Stages in Divorce Procedure in India

There are six stages in divorce procedure in India:

1. Petition to be filed
2. Issuing summons
3. Response from the other side (respondent)
4. Trial
5. Interim orders
6. Final judgement

Divorce Procedure in India:

Step 1 for Divorce procedure in India: Filing of divorce petition: One must draft the petition for divorce in India to be filed before Hon’ble Family Court. The main important thing is that the draft should contain all the details and reasons for filing for divorce in India.

Step 2 for Divorce procedure in India: Jurisdiction: The jurisdiction to file a divorce depends upon:

1. where the husband and wife last resided or
2. ii) where the husband is currently living or
3. iii) where the wife is currently living. The petition should be filed in appropriate court.

Step 3 for Divorce procedure in India: Issuing Summons: After the divorce petition is filed summons are issued to other party i.e. spouse of the person filing petition and sending them notice, informing them about the petition being filed against them. The summons is sent through speed post. The summons issued consist of date and time for the other party to present before the court.

Step 4 for Divorce procedure in India: Response: Once the summons is received by the other party
(respondent) they have to appear before the court on the mentioned date in the summons. If the said party fails to be present before the court, the court may pass an ex-parte order by giving a chance to hear the petitioner. And may pass ex- parte order and end the divorce process.

Step 5 for Divorce procedure in India: Trial: Once the respondent makes his appearance before the court the trial begins. Both the parties have to submit their petition along with evidence and witnesses. Then based on evidence the respective lawyers conduct chief and cross examination of the respective parties.

Step 6 for Divorce procedure in India: Interim Orders: To obtain child custody or maintenance any party can be file the petition to obtain temporary order during the proceedings of the divorce. On hearing both the parties if the court is satisfied it passes interim order.

Step 7for Divorce procedure in India: Final order: Final order is announced based on the arguments made by the advocates for both the parties. The arguments made play crucial role as they have to establish their client’s contentions before the court. On hearing both the parties argument the final order is passed by the court. If any of the party is not satisfied if may move to higher court.

Divorce Procedure in India by Mutual Consent

As per the name, it is where both the parties mutually agree to end their marriage. A joint petition is filed where the husband and the wife both sign the petition. Once the petition is filed a period of six months is given as an opportunity to reconcile their marriage this is also known as cooling phase.

If in the cooling phase there is no reconciliation the parties shall file second motion petition. Once the court is satisfied that both the parties have mutually agreed without any pressure from either of the party and undue influence a decree is passed by the court. The marriage is mutually dissolved with settlement agreement.

How long does it take for divorce proceedings in India?

If the divorce proceedings are contested it takes about 3 to 4 years for the proceedings to end. While for divorce by mutual consent the proceedings take 6months to 1 year.

Reference:

1. https://economictimes.indiatimes.com/wealth/save/divorce-costs-documents-needed-and-steps-involved/articleshow/73608055.cms?from=mdr
2. http://www.legalserviceindia.com/legal/article-711-how-to-get-divorce-in-india.html

Article by- Adv. Prathi Shetty