Although divorce is not a welcome decision, sometimes people have to decide to end the marriage through a divorce so that many troubles can be avoided. let’s see in detail how to file a divorce and the procedure for divorce in India.
In India, there are two types of divorce and the process is different for each type. Let’s learn about them before we get into the procedure.
1. Mutual divorce.
2. Contested Divorce.
1. Mutual divorce.
This means that both parties want a divorce and agree to get it (mutual consent). According to Section 13B of the Hindu Marriage Act, 1955, a divorce petition can only be filed if the parties have lived separately for a year or more.
As a basic principle, marriage can only function if both partners want to live together. If a partner is not willing to live together, it should be mutually ordered rather than filling out a contested divorce application and a mutual decision to live or end the marriage.
In this mutual divorce petition we have the simple representation that confirms the marriage, but after marriage, we find that we can not live together, we try our best to save the marriage, but all efforts go in vain. So we decide for each other to end the marriage. Details of permanent alimony to be paid by one partner to another partner.
2. Contested divorce.
Of these, only one party, the spouse, wants a divorce and can obtain it on such a basis as:
Voluntary sexual intercourse with another person, i.e. outside of marriage.
Abuse of his / her partner (including abuse of spouse’s parents).
Deliberate abandonment of a wife in a reasonable manner without the consent of others Or reasonable cause for more than 2 consecutive years.
4. Religious conversion;
Has stopped being a Hindu by converting to another religion.
5. Unsoundness of mind;
Is suffering continuously or incessantly with an incurable mental disorder, or similar mental disorder, and cannot reasonably expect the petitioner to live with the respondent.
Suffered from leprosy and incurable form.
7. Venereal disease;
Suffering from venereal disease in transmissible form.
8. Relatives and acquaintances who have not heard of a spouse for 7 years or more would naturally have heard of this if they had been alive;
9. If any marriage had taken place before the commencement of this Act, the husband had remarried before the commencement of any other wife of the husband had remarried before such commencement was alive at the same time as the marriage of the petitioner.
10. The husband, since the solemnization of the marriage, is guilty of rape, sodomy or bestiality.
11. Her marriage was separate (whether completed or not) before she reached the age of fifteen, and she rejected that marriage after reaching that age but before the age of eighteen.
In short, most of the contested divorce petitions are filed based on points 1 and 2, i.e. sexual intercourse is voluntary with a person other than his / her partner and treating the partner with cruelty.
So filing a contested divorce application is never good. It will only take valuable years of your life and money.
Procedure for mutual divorce in India;
Condition of Section 13 (B) of Hindu Marriage Act;
A mutual divorce application can be filed only after one year of marriage. In short, a divorce application cannot be filed within one year of marriage. Briefly, he/she has to wait till the completion of one year of marriage (as per Section 14 of this Act).
1. Filing a joint divorce petition in the family court of the district (where the marriage took place, or where the husband and wife last lived together or where the wife lived) through the husband and wife’s attorneys.
2. After the petition is filed, the husband and wife appear in court to record the statement.
3. The court examines the petition documents, seeks conciliation, and records the reports.
4. The court issues the order on the first motion
5. The couple was given six months (Cooling-off period) by the court to reconsider the decision.
Cooling off period:
According to the new guidelines of the Supreme Court order, “a 6-month waiting period is not mandatory under Section 13B of the Hindu Marriage Act for divorce by mutual consent.”
If the 6 months is waived, there is no need to wait 6 months to start the second operation.
6. The filing of the second motion is done within 18 months of the first motion.
7. Divorce order passed by the court.
Documents needed for mutual divorce;
1. Proof of address of husband and wife.
2. Income details of husband and wife.
3. Marriage certificate.
4. Information about family background.
5. Wedding photos.
6. Husband-wife testimonials have been living separately for more than a year.
7. Income tax statement.
8. Details of property and assets.
Other documents are required depending on the circumstances of the case.
This method of getting a divorce will save you time. It helps to resume your life after a short period. After this process, you will be free to make your decision.
Procedure for a contested divorce in India;
1. Filing a divorce petition in the family court of the district where the wife resides, the place where the marriage took place, or both spouses. If the petitioner’s wife lives outside India, the place of residence of the petitioner.
2. If a petition is examined and satisfied by the court it will summon the respondent, i.e. another party.
3. Recommendation for court mediation by both parties.
4. . If the arbitration fails, the court will proceed with the divorce proceedings and grant the divorce after hearing from both parties.
But the court gives judgments/judgment based on proven evidence and if you do not have strong evidence, a contested divorce application filed under section 13 will take more time. Minimum 1.5 years to maximum 10 years.
How much time does it take to get a divorce in India?.
Divorce cases are the most critical cases in India. Sometimes the decision takes a lot of time to finalize.
The duration of the divorce case depends on the type of situation. Sometimes both parties accuse the other party.
They demand property, money and a full and final settlement. Judges will take time to deliver any decision.
For contesting the divorce, It can take up to 2 years or an infinity (depending on the court decision).
Divorce by mutual contest: 6 months to 1 year after 1-year separation. Contested divorce: God knows how much time will it take.
Simplest and quickest way to get a divorce in India.
The simplest and quickest way to get a divorce is to divorce by mutual consent. A couple decides and wants a division.
The simplest way to legally dissolve by mutual consent divorce. Mutual consent is mentioned under the Hindu Marriage Act 1955 13 (B). The only requirement is the consent of both husband and wife.
This is the best way to get a divorce even if you are losing a little money. If you mutually agree on matters such as child custody and alimony, the number of court hearings will be reduced and the process of obtaining a divorce order from the court will be expedited.
It saves you from a lot of drama and traumatic experiences.
Usually, when a party refuses to turn up during multiple divorce proceedings and does not appear regardless of multiple summonses, the court treats that party as an Ex-parte, i.e. the civil case continues without the missing party and is called an Ex-Parte Decree.
This is for civil cases only, not for criminal cases.
Ex-parte order once issued may be appealed by the missing party within a specified time, otherwise, they are as good as the ordinary order.
How much time does it take for an ex-party divorce case in India?
The Ex-parte divorce in India takes the time to follow the full procedure of the Divorce Family Court, such as sending a court summons to the party/respondent, if any is completed or the service rendered for notification/court summons sent to the opposing party/respondent.
The family court will proceed with the ex-parte proceedings against the respondent only if it is satisfied that no response has been given to work with the court notice/summons. After proceeding ex-parte the evidence of the petitioner recorded and the divorce petition decided.
This whole procedure is always 6 months – 1 year, depending on where the court is to be sent to the opposite party/respondent and how that party reacts or responds or withdraws from the court proceedings, in some cases even the alternative service of the court notice is ordered by the press release, where the respondent Deliberately avoids serving the court summons.
Sending court notice through email and WhatsApp messaging process is also used by some courts.
By section 29 (2) of Hindu Marriage Act,
Nothing in this Act shall be deemed to infringe upon any right recognized by the Right or any other special law for the dissolution of a Hindu marriage, whether before or after the commencement of this Act.
Definition of custom is provided in Section 3 A of The Act.
The expression “custom” and “usage” refer to any rule that has long been consistently and uniformly observed and has gained the force of law among Hindus in any local area, tribe, community, group or family.
The rule is definite and not unreasonable or contrary to public policy;
It has also provided that in the case of a rule applicable only to a family it is not terminated by the family;
Therefore, families/spouses can file for divorce by mutual consent and mutually adjust the amount of permanent alimony by writing on the stamp paper and signing the document to end their marriage. The divorce certificate must have a reasonable practice of terminating the marriage by mutual consent of their family/cast and the prevailing practice is as defined under Section 3 (a) of the Hindu Marriage Act, and this divorce section is subject to Section 29 (2) of the Hindu Marriage Act.
In short, the condition of Section 13 B does not apply to customary divorce. Hence couple does not require to wait till 2.5 Year.
This answer is for informal assistance only does not intend to represent any legal stance and does not assume any responsibility. Seek the advice of an accredited legal instructor.