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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Alimony in India

Alimony is a very important matter to deal with during the litigation of a divorce case.

The very perception of right to claim the financial support for post-divorce maintenance was not quite a familiar concept among the Indian divorce seekers, especially women few years back. 

Since the rate of divorce is increasing in India at a rapid speed, people are becoming aware of the various details related to divorce laws. The era of feminist campaigns and spread of education among women, have contributed to the growing applicability of alimony in divorce cases.

The alimony or the spouse support is an obligation by laws in almost all the countries of the world. It is expected that both the spouses irrespective of gender must bear the maintenance support during and after marriage.

The concept of alimony came in vogue due to the indissolubility nature of marriage. According to marriage conventions, marriage is a sacred union. Once the knot is tied, the duties and obligations of marriage are to be carried out for the rest of the life even if there is mental disparity or physical separation between the husband and the wife. The husband is bound to take up the responsibilities for the maintenance of his wife in spite of sharing an estranged relationship. As time changed, the laws and education empowered woman and divorce came as a spontaneous solution for an unsuccessful marriage.

The present society treats men and women equal, as a result the burden of alimony can now fall upon either side of the party depending upon the financial circumstances of the spouses. Even though in the present age of equality, both men and women are equal before the law, in practice men are more liable to provide interim support to his ex- spouse during the litigation procedure.

After divorce either of the spouse has the right to claim alimony. Though not an absolute right, it can be granted by the court depending upon the circumstances and financial conditions of both the spouses.

The following are the conditions depending on which alimony is awarded by the court:

Alimony is generally not granted to the seeking spouse if he or she is already receiving support during the time of divorce. Although the rewarding of alimony can be revised in such events based on the arguments for claiming the support.

In case of a contested divorce, often spouses fail to come to any understanding regarding alimony. In such situations, the court takes up the task of making a decision on the amount of alimony to be paid.

Only under certain compelling situations the court steps out to change the already framed alimony. Sometimes the court might even hand over the burden of paying for the maintenance to a public body.

The following are the factors that influence the duration and amount to be paid as alimony:

The amount and duration of alimony generally depends upon how long the marriage existed. Marriages that lasted more than 10 years are entitled to be granted a lifelong alimony.

Age of the spouse is also taken into consideration while awarding alimony. Normally a young recipient of alimony gets it for a short period of time if the court thinks that he or she will soon be able to become financially sound through prospective career excellence.

Alimony is also in vogue in order to equalize the economic condition of both the spouses. The higher earning spouse is entitled to pay a heavy amount as alimony.

The spouse who is projected to be enjoying a prosperous career is liable to pay high alimony amount.

If one of the spouses is suffering from poor health, the other is subjected to payment of high alimony to ensure proper medication and wellbeing of the other spouse.

The terms and conditions of payment of alimony in India vary from one personal law to another. None of the Indian personal laws are spared from criticism due to existence of laws in framing definite rules for granting alimony.

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