Divorce, legally?

Divorce in India, Legally?

Divorce, also known as dissolution of marriage, is the process of ending a marriage or marital partnership. 

Divorce implies the re-organisation or cancellation of legal responsibilities and obligations of marriage, therefore severing the bonds of matrimony between a married couple under the country’s or state’s unique rule of law.

A divorce is a traumatic experience to go through, be it any stage of life. It can be a long-winded and costly affair with respect to the divorce process in India. 

This article provides a step-by-step procedure of how to file a Divorce in India!

The rules of divorce in India are connected to religion and in this article, how to file a divorce in India is spoken about. 

1. Hindus, Sikhs, Buddhists, and Jains are governed by the Hindu Marriage Act, 1955. 

2. Muslims are governed by the Dissolution of Muslim Marriages Act, 1939. 

3. Parsis are governed by the Parsi Marriage and Divorce Act, 1936. 

4. Christians by the Indian Divorce Act, 1869 

5. Marriages between two religions are governed by the Special Marriage Act, 1956. 

The divorce in India started with the Hindu Marriage Act, 1955. Under this act, both the husband and wife have been given a right to get their marriage dissolved on more than one ground, specifically with regards to Section 13. 

How to file a divorce in India? 

Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, also provide for divorce of Mutual Consent. Please note for worst-case scenarios, if the concept of consented divorce is not feasible then ‘Contested Divorce’ is the last resort, this is when the other party is not agreeing for divorce. 

There are conditions that have to be followed and the procedure for Divorce in India falls under Section 13B of the Hindu Marriage Act, and they are as follows: 

1. The partners have been living separately for a minimum period of a year 

2. They are unable to reconcile their differences and live together 

3. The partners have mutually agreed that the marriage has come to an end, and must be dissolved. 

A mutually consented divorce can be filed. 

The divorce process in India begins with the filing of a divorce petition. 

Now, if your questions are: 

How to file a divorce petition? 

The process:

The entire process of filing a divorce starts with the divorce petition by the parties associated with the matter. The divorce process and notice of the same are served to each stakeholder. 

According to the Hindu Marriage Act, 1955, a petition filed under ‘mutual divorce’ can be carried forward if the two parties have decided to bid adieu and part their ways, legally. 

If not, and one member wishes to part their ways with another (who isn’t willing to give consent) – it falls under ‘Contested Divorce’. 

Produce a divorce notice to your spouse, this is towards clarifying the emotions, a legal and binding platform to initiate your thoughts on discontinuing your marriage. 

Legal notice for divorce will bring clarity to the future of the relationship. The legal notice is towards the communication of current feelings and is a formal one to break the marriage. 

How much time does it take to get a Divorce in India?

Within six months, divorce by mutual consent can be achieved, although no petition in such a case can be submitted within the first year of marriage. Between the first and second motions, there must be a six-month break. In rare situations, the court may waive the cooling-off period. So, in the event of mutual agreement divorce, it normally takes 18-24 months.

Because of the complexity and likelihood that either spouse might remarry, the duration of a contentious divorce is longer, ranging from three to five years.

The procedure for mutual divorce in India is as below: 

Step 1: Petition to file for a divorce

If you are wondering ‘How to get a divorce in India from wife’ or ‘How to get a divorce from husband’ – it starts with a joint petition for disbanding the marriage. It will be presented to the family court by the parties concerned, stating that they are unable to follow the conditions and they have come to terms to part their ways. 

The parties sign the petition. 

Step 2: The parties must appear before the court

After the procedure has been initiated, the parties appear before the court and the entity shall do its due diligence. The court may try to reconcile the spouses, if in vain, the divorce process proceeds. 

Step 3: Record statements under oath 

After the petition is scrutinized and satisfied by the court, the statements of all concerned parties will be recorded under oath.

Step 4: The first motion will be passed 

The statements are recorded, an order is passed, and six months of time is provided for the second motion to be passed. 

Step 5: Final hearing of the petition 

After the parties appear for the second motion, and if everything is a smooth sail, they can proceed with the final hearings of the case. 

Step 6: Verdict on the Divorce

When it comes to a mutual divorce, both parties have given consent, and there will not be any differences regarding alimony, custody of children, maintenance, property, etc 

A harmonious agreement where the spouses are on the same page is important to dissolve the marriage. If the court is satisfied after hearing the allegations and if there is no means of reconciliation and cohabitation, the verdict shall pass on as ‘marriage dissolved’. 

If you are concerned about ‘how to file a divorce online’ – it is feasible. Lawyers, presenting your arguments in Family Court, and recurring meetings to stick to the process is crucial. 

The procedure for Contested Divorce in India is as below: 

Step 1: The petition is filed by the husband or wife:

As previously indicated, in a contentious divorce, only one side is necessary to contact a lawyer. The husband or wife seeking divorce would be expected to clarify the facts, and the lawyer would be obliged to create the petition based on the facts and circumstances as stated and narrated by the husband or wife requesting divorce.

Step 2: The court issues a summons and asks the other spouse to respond:

Once the petition has been prepared and all formalities have been fulfilled, it would be filed before the appropriate family court, depending upon the jurisdiction.

Step 3: The court may advise that the parties reconcile:

On the first day of the hearing, the court would examine the petition and hear the lawyer making the petition’s opening arguments (concerning the claims and reasons).

Step 4: Witnesses and evidence are examined and cross-examined:

Once the court is satisfied that the case should go to adjudication, it will issue a notice to be served on the opposing party. After then, the other party would receive a copy of the petition and the notice, and he or she would be required to attend in court with their counsel on the next hearing date. The opposing party would be required to respond to the divorce petition as well as any further applications that may be filed.

Step 5: Both sides attorneys make their last arguments:

To begin, the Court will attempt to mediate the dispute between the parties and may order them to attend Mediation in order to achieve an acceptable agreement. After appearing in front of a mediator for mediation, if the mediation is unsuccessful or fruitless, the court will proceed with the divorce procedures.

Step 6: The court issues a divorce decree:

The court would next proceed to formulate issues and record evidence in the case. Both parties would have to present evidence, be cross-examined, and provide supporting witnesses. This is the most important component of the entire process since it determines the case’s outcome.

During the discussions between both parties, there are three aspects one must consider to reach a consensus: 

i) Alimony and maintenance issues. As per law, there is no minimum or maximum amount. It could be no money or any money. 

ii) Custody of their young ones is a crucial aspect the spouses must consider. This must be spoken to amongst the stakeholders and they must come to a consensus on shared or exclusive custody of the children. 

iii) Property is the next issue. Husbands and wives should integrate their assets and distribute them accordingly. This includes movable and immovable property. It must be agreed by both parties – even to the minute of the decisions – which includes bank account(s). 

Documents that are required to successfully continue the divorce process:

1. Address proof of the spouse
2. Certificate of marriage
3. Passport size photograph (4) of husband and wife
4. Evidence to support the claim that husband and wife have been living apart for more than one year.
5. Evidence to support the failed attempts to pacify each other and reconcile the marriage.
6. Income tax statements for 3 years
7. Professional details
8. Family background details
9. Details of properties that are owned by both parties

- Adv. Sunita Nagpure

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What is a will?

A will is a legal document that dictates the handling of all the assets and their distribution among the children or other parties on the event of death of a person. 

The document is a clear conveyer of your wishes after the incident of passing away.

How to make a property will in India?

To make a will of property in India, you can either consult a lawyer or follow the below given process:

Start with a declaration stating that this is your last will and you are creating it in your senses, free from any pressure. Additionally add name, age and address here.

List down your assets along with its value and details of the necessary documents for those assets. The assets may include property, bank deposits, shares and other funds among other assets.

Now make a list of beneficiaries who shall inherit the assets after your death. Make all the provisions and carefully make the list to eliminate any ambiguity.

You’ll have to carefully lay down provisions for your children as well if they are below 18 years of age. Mention the guardianship and people responsible for them in your absence.

It is important to mention the executor of the will in this legal document. This person will be responsible to execute the will after your death.

If you wish to mention anything in particular or any other wishes, mention them in the will

Now that you have documented everything, sign the will and get two adult witnesses to sign it as well at the time of registration of the will.

I know notarising and registering your will is not mandatory according to Indian law but it is highly advisable to do so in order to avoid any conflicts or frauds; and to ensure that the will is executed properly.

Now that you know how to write will for property, here is what you should know about who can make the will.

Who can make the will?

According to the Indian Succession Act 1925, Section 59, the maker of the will must be of sound mind and above 18 years of age.

What is the format of a will?

There is no prescribed form of a will. In order for it to be effective, it needs to be properly signed and attested. It must be initialed by the testator at the end of every page and next to any correction and alteration. 

Is handwritten will legal in India?

Yes, the handwritten Wills are legal in India. However, they need to be legible and should also follow the criterions or the essentials of a valid will. What is a valid Will in India? If any Will has the essentials mentioned in it along with the proper intention of the testator, it is valid.

What is will registration?

The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity. In India, the registration of wills is not compulsory even if it relates to immovable property. The non-registration of a will does not lead to any inference against the genuineness of a will.

Does a Will need to be registered in India?

In India, registration of Wills is not compulsory. Once a Will is registered, it is placed in the safe custody of the Registrar and cannot be tampered with, destroyed, mutilated or stolen. However, non-registration of a Will does not lead to any inference against its genuineness.

Can a will be registered anywhere in India?

Will is to be registered at the office of Sub-registrar of Assurances which is in the jurisdiction of the residence of the person who made the Will. There are no government fees for registration of a Will except scanning and photocopy charges which is very nominal.

Who can witness a will in India?

Witnesses should be adults, i.e. above 18 years of age. While choosing the witness you must keep in mind that they should survive you as they may need to testify the Will after your death. It is important to ensure that your witness does not have any potential bias or conflict of interest.

How long is a will valid after death India?

Once the contents of the will are carried out the will is considered to be executed. There are no specific laws regarding longevity/ period of time for the will in Indian law. Once the period of 12 years is passed, the will is said to be Permanent.

Can a beneficiary be a witness to a will in India?

Inheritor Witnessing Will

As per the Indian Succession Act, an inheritor mentioned in the Will or his or her wife or husband cannot be a witness to the Will. Hence, it is important that any person mentioned as an inheritor or beneficiary in a Will not witness or attest the Will.

Which will is valid in India?

The Will of the testator must be written by people with sound and clear mind means any person under a state of intoxication, illness or any similar cause cannot make a Will; Either the Will is registered or the probate proceedings have the authority if the Will has been made with due process of the law.

by- Adv. Sunita Nagpure

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