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

_____________________________________________________

Civil Suit Stages

Stages of a Civil Suit

The Civil Suit is basically a dispute which arises between two people or two organisations wherein a subject for dispute is limited to monetary transaction and dispute related to immovable property. 

The Civil Suit, if it is personal in nature than it is governed under Civil Procedure Code and if it is related to business transaction then Commercial Court Act also plays a great role to set out the procedure. The Parties in the Civil Suit are addressed as Plaintiff and Defendant.

Broadly, a civil suit passes through the following five stages:

• Institution of a Civil Suit (Plaint, Written Statement, Replication, etc.)

• Framing of issues.

• Summoning and attendance of witnesses.

• Hearing of Suit and Examination of Witness.

• Decree/Order and the Judgment.

STAGES OF CIVIL SUIT

There are total 18 stages in a Civil Suit which are mentioned herein below:-

1. Plaint

The document in which the fact of the case is mentioned that document is known as Plaint in legal world. The entire Civil Suit is based on Plaint and the Plaint is starting point or the starting stage for all the Civil Suit. Order VII deals with the contents of Plaint and some of the points mentioned under Order VII is mentioned herein below:-

• Particulars

• Name of the Court

• Details of the Party

• Facts of the Dispute involved between the party

• Relief Sort

• Jurisdiction

• The Documents on which the party is relying upon.

2. Summons

After a Plaint is filed the Court may either accept the Plaint or they may reject the Plaint if the Plaint is accepted the Court may call the Party i.e. Defendant against whom the dispute is filed and Court calls party by issuing Summon. Defendant to whom the summons is issued may appear in person or through the legal representative. If the Summons are addressed within the jurisdiction of the Court than the same is addressed under Section 27 of the Code and if the Defendant doesn’t reside in the jurisdiction of the Court but the same resides in the same Country than the Summons are addressed under Section 28 of the Code but if the Defendant is residing outside the Country than the Summons are addressed under Section 29 of the Code. The Summons is also addressed when Plaintiff or Defendants want to produce a witness in the Court, the procedure relating for calling for witness is mentioned under Section 31 of the Code. The procedure for the Service of Summons is mentioned under Order V of the Code.

3. Appearance of the Party

The Party to whom summon is addressed needs to be present before the concerned court and if the person failed to appear before the concerned Court than as per Order V rule 20 an Ex-parte order is passed by the Concerned Court. If both parties are not present on the concerned date thrn the court after giving due chance ay dismiss the matter.

4. Interlocutory Proceeding

Everyone knows that Suit is a Long process as it has many steps before passing Judgment so before starting the stages of Suit sometime the Court has to intervene in the matter to maintain the position as it prevailed. Such Intervention is known as “STATUS QUO”. The Plaintiff can ask for Status Quo order by filing Notice of Motion in the City Civil Court or by filling Interim Application in respective High Court. Following intervention matter are entertain by the Civil Court:-

• Temporary Injunction (order 39)

• Appointment of Court Receiver (order 40)

• Appointment of Court Commissioner(order 26)

• Arrest and Attachment before Judgment (order 38)

5. Written Statement

In the simple language Written Statement is a Document in which the Defendant mentions his/her side of facts of the case and mentions his defence to the Plaint. Order VIII of the code deal with Written Statement. Before Amendment in 2002, there was no limitation period for filing the Written Statement but after the amendment, it is mandatory to file Written Statement within 90 days, after the limitation period is expired it is at the discretion of the Court whether to accept the Written Statement. Under this discretion, the Court will give additional days to file Written Statement but those days won’t exceed 90 days.

6. Examination of Party

After the Written Statement is filed the Court may ask the parties whether they admit the allegation or they deny the allegations pressed by the Plaintiff and such acceptance or denial should be recorded.

7. Framing of Issues

The Court after the Suit is filed and after the Written Statement is filed by the Defendant then the Court may ask the parties to produce Draft Issues and after examining the draft issues the Court may frame Final issues. Order XIV of code deal with Framing of Issues.

8. List of Document relied by the Party

After the Framing of Issue, the Court will ask the Parties to submit a List of Documents on which they are relying upon. The parties submit the list in the form of Affidavit.

9. Discovery and Inspection

After the Document is produced in the Court the Party can apply for inspection of Document. Order XI of the code deals with the Discovery and Inspection of documents. After taking leave from the court the parties can Inspect the Document.

10. Admission and Denial of Document

After the Party has ascertained the Document they may either Admit the Document or they may deny the Document. The Admission and Denial of the Documents are dealt under Order XII of the code.

11. Production of Documents

After the List of Document is relied upon by the Party and after Admission and denial of the Document, the next stage is to produce the Document in the Court. The Party has to submit all original documents in the concerned court. Order XIII of code deals with the production of the Documents.

12. Hearing and Cross Examination of the Witness (Order XVIII)

After the Production of Document, the next stage of a civil suit is hearing of suits and examination of witnesses commence. The first right to begin is of the plaintiff. The plaintiff has to submit the evidence that was earlier marked if any evidence was not marked earlier then it will not be considered by the court. And the defendant’s advocate will cross-examine the plaintiff and also to the witnesses who are from the plaintiff’s side. And the defendant also presents his side of the story supported by his witnesses and evidence from his side and the plaintiff advocate also cross-examined the defendant.

13. Argument

As soon as the stage of the hearing of suits and examination of witnesses is over then the suit is kept for the next stage i.e. argument. Once the evidence has been submitted and cross-examination is conducted by both parties, then both sides are allowed to present a summary of the case and evidence to the judge in the final session.

14. Judgment

After the concerned court has heard the matter the Court will pass Judgment/Decree. The provision related to Judgment and Decree is in Section 33 read with Order XX of the Code.

15. Appeal, Review and Revision

After the Judgment is pronounced and if the concerned party are not satisfied with the Judgment/Decree passed than they can either apply for Review (Section 114 read with Order XLVII) within Thirty Days from the date of pronouncement of Judgment/Decree or the aggrieved party can apply for Revision (Section 115) to the higher court within thirty days of pronouncement of Judgment, or the aggrieved party can also go for an Appeal (section 96 to 110 along with Order XLI to XLV) to the Higher Court within 60 or 90 days from the pronouncement of the Judgment/ Decree.

16. Execution of the Decree

In this stage, decree-holder compels the judgment-debtor to out the mandate of the decree or decree or order as the case may be. It is the process by which a decree-holder recovers the fruits of the judgment. The execution is complete when judgment creditor or decree-holder gets money or other thing awarded to him by judgment, decree, or order.

The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

17. Appeal, Review, Revision 

A. Appeal :-

An appeal may be an appeal from order or an appeal from decree. All orders are not appealable and complete discretion of the appealable order has been given in order 43 of the code of Civil Procedure Code. The appeal has to be preferred within prescribed limitation period before the appellate court. The limitation period for appeal to High Court is 90 days and appeal to District Court is 30 days. If the period of limitation is expired, then application for condonation of delay also is required to be moved.

B. Review :- 

The right of review is having very limited scope under the Civil Procedure Code

A review application is maintainable only when the following conditions are satisfied,

1. If involves a decree or order from which no appeal is allowed or if allowed it is not preferred.

2. The appellant was aggrieved, on the ground, that because of the discovery of a new and important matter of evidence, which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time of decree or on account of some mistake, apparently on the face of the record, or for any sufficient reason, desires to obtain a review of such decree. The other side will be granted an opportunity to be heard, when any review application has been granted.

C. Revision :- 

The High Court in its revision jurisdiction can interfere in any case decided by subordinate court under certain circumstances.

The High Court may call for the record of any case which has been decided

by subordinate court and in which no appeal lies, if such subordinate court appears -

1. To have exercised, a jurisdiction not vested in it by law, or 

2. To have failed to exercise a jurisdiction so vested, or

3. To have acted in exercise of its jurisdiction illegally; or with material irregularity.

18. Execution of Decree (Order 21) :- 

Execution is the medium by which a decree- holder compels the judgment-debtor to carry out the mandate of the decree or order as the case may be. It enables the decree-holder to recover the fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by judgment, decree or order. 

-  Adv. Sunita Nagpure

___________________________________________________

Relevancy of Judgements

Relevancy of previous judgments to bar a second suit or trial

–– The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.

Relevancy of certain judgments in probate, etc., jurisdiction. 

–– A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof ––

that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;

that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment 1[order or decree] declares it to have accrued to that person;

that any legal character which it takes away from any such person ceased at the time from which such judgment, 1[order or decree] declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1[order or decree] declares that it had been or should be his property.

Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41. 

–– Judgments, orders or decrees other than those mentioned in section 41 are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.

Illustration

A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.

Judgments, etc., other than those mentioned in sections 40, 41 and 42, when relevant. 

–– Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act.

Illustrations

(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.

A obtains a decree against C for damages on the ground that C failed to make out his justification.

The fact is irrelevant as between B and C.

(b) A prosecutes B for adultery with C, A’s wife.

B denies that C is A’s wife, but the Court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. C says that she never was A’s wife.

The judgment against B is irrelevant as against C.

(c) A prosecutes B for stealing a cow from him. B is convicted.

        A afterwards sues C for the cow, which B had sold to him before his conviction. As between

        A and C, the judgment against B is irrelevant.

(d) A has obtained a decree for the possession of land against B. C, B’s son, murders A in consequence.

The existence of the judgment is relevant, as showing motive for a crime.

(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.

(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue.]

Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved. 

–– Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Reproduced from the Indian Evidence Act

- Adv. (Dr.) Darshan Nagpure