WHAT IS DIVORCE?
Divorce is the process of terminating a marriage or marital union and is also known as dissolution of marriage. Divorce entails the reorganizing or cancelling of legal responsibilities and duties of marriage, thereby dissolving the bonds of matrimony between a married couple under the particular rule of law of the country or state.
WHAT IS THE DIVORCE PROCEDURE AND TYPES OF DIVORCES IN INDIA?
In India, divorce procedure starts from the filing of the divorce petition and comes to an end with the pronouncement of final order of the divorce.
The divorce procedure is divided into six stages which are:-
- Filing of the petition
- Service of summons
- Interim orders
- Final orders
A divorce procedure basically starts with the filing of a divorce petition. The whole procedure of divorce works when the said petition is written by any of the one parties involved in the divorce process and the served to the other party. Once you become aware of the process to file a divorce in India in the respective state court, where either of the one parties resides, the Indian divorce procedure ascends depending on the country. In earlier days, divorce used to be considered as a sin and was looked down upon in an individual’s life and thus despite of lot of marital trouble and issues, spouses were bound to cope up with a painful and failed marital tie.
But, with the time and the evolution of society the views and perception has changed towards life. Perhaps a lot has changed and there is a dramatic increase in divorce proceedings.
As divorce is still considered to be one of the most painful and traumatic experiences for a married couple, there are many researches done on the matter of divorce as of how to get divorce from a husband or how to file a divorce from wife in India. It would create a mess if the procedure is not known properly and can get extremely outrageous and can also be time-consuming. Thus, it is strongly recommended to get instant legal help online or a trusted divorce expert to give proper guidance throughout the entire complicated process in the most easiest and hassle-free way. The Indian Judicial System in respect to other legal proceedings has higher rate of disposal of divorce, considering the fact that all procedures are followed correctly with the help of a competent lawyer and in accordance with law.
On the other hand, the Indian Divorce Procedure can be broadly classified in two different categories:
1. Divorce by Mutual Consent
2. Contested Divorce
Let us now have a look into the statutory laws governing the whole procedure of divorce in India along with some specific guidelines which need to be followed.
STATUTORY LAWS WHICH GOVERN DIVORCE PROCEDURE IN INDIA
Before understanding the details of all the statutory laws, an individual needs to be clear on what is the procedure of divorce in India.
- In India, marriage and dissolution of marriage comes under personal matters and the laws related to marriage and divorce and have been framed on the basis of customs and rights of different religion. Thus, there are specific laws for the process of divorce in India respective of people belonging to specific religions.
- The Hindus, Sikhs, Buddhists and Jains are governed by the Hindu Marriage Act, 1955.
- Muslims by the Dissolution of Muslim Marriage Act, 1939.
- Parsi Marriage and Divorce Act, 1936 for the Parsis.
- Christians by the Indian Divorce Act, 1869.
- The Special Marriage Act, 1956 governs all inter- community and civil marriages.
TYPES OF DIVORCE
Divorce can be obtained in multiple ways. The only thing that one needs to know is how to file a divorce in India i.e. either with the mutual consent or contested divorce.
DIVORCE WITH MUTUAL CONSENT
Mutual divorce is much less time consuming compared to the contested divorce. When both the spouses agree to dissolve their disturbed marriage, they opt for Indian divorce procedure with Mutual Consent. In divorce with mutual consent, with the help of good divorce lawyer, a joint divorce petition is drafted, verified and signed by both husband and wife and then needs to be filed before the appropriate court. After the joint petition is filed, the court gives a period of six to eighteen months to the parties. This time period is known as cooling off phase. Provided that within this time period the spouses do not harmonise then the parties can move towards filing for divorce via filing the second motion.
After filing of the second motion, if the court is satisfied that both the spouses have given their consent for the divorce which is free from any coercion or undue influence, the court will pass a decree of Divorce. When both the parties on the basis of the terms of settlement have agreed and written in their divorce petition, the Indian divorce procedure is then complete under mutual consent. According to Section 13(B) of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple should be separated for over a year or two years in order to file a joint petition of Divorce with Mutual Consent.
There are several rights for the couples who enter into a marital tie. If any of the rights contravene by any of the party then the other has full liberty to file a petition for divorce.
WHAT IS THE DIVORCE LAW IN INDIA?
The rights are enlisted below, though some of them are not applicable to all religions.
THE HINDU MARRIAGE ACT, 1955
3. Domestic Violence,
4. Conversion to another religion,
5. Mental disorder,
6. Communicable diseases
8. Renunciation from the world,
9. Presumption of death etc.
DISSOLUTION OF MUSLIM MARRIAGE ACT
As per the Muslim personal divorce laws, a Muslim man can give divorce to his wife without dragging the matter to the court. But in case if a Muslim woman wants to dissolve a marriage and wants to give divorce, then she either has to take permission from her husband or can file a divorce petition under the Dissolution of Muslim Marriage Act based on the following grounds:-
a) The husband is found missing for a period of last four years,
b) Where husband doesn’t provides maintenance for a period of about two years,
c) The husband is imprisoned for a period of seven years or more,
d) Where a husband fails to fulfill marital obligations for a period of at least three years.
e) Where the husband has been suffering from insanity or leprosy for a period of two years.
f) Where the husband is impotent.
INDIAN DIVORCE ACT
In the Indian divorce act the grounds of divorce for a Christian Couple have been mentioned which are as follows:-
a) Conversion of different religion by the husband and marrying another girl,
c) Bigamy along with adultery,
d) Commitment of sodomy, rape or bestiality by the husband
e) Cruelty along with adultery
f) Adultery along with Desertion for a least time period of 2 years.
SPECIAL MARRIAGE ACT, 1956
Special Marriage Act is different from the customary Hindu Marriage Act. This act specially governs the Civil marriages which is the inter-caste or inter-religion marriages and so is the divorce proceedings of the parties. The grounds of divorce under this ac are as follows:
a) Indulging in voluntary sexual intercourse with any person other than the spouse,
b) Desertion for a period of 2 years or more,
c) Spouse being imprisoned for a period of seven years or more under the Indian Penal Code,
e) Any form of communicable or Venereal diseases,
f) If the spouse is found missing or not heard of being alive for a total period of 7 years or more,
g) Judicial Separation.
THE PROCEDURE FOR DIVORCE
There are few important and vital procedures that need to be followed by every citizen to take divorce in India. The steps are as follow:-
DRAFTING AND FILING OF DIVORCE PETITION:-
The first step in the procedure of divorce is the filing of divorce petition before the respective family court with proper court fees.
Divorce petition can be filed in three territorial jurisdiction of Court
1. The last residing place of husband and wife,
2. Where the husband is presently living,
3. Where the wife is presently living
The party seeking the divorce has to file petition to initiate the divorce procedure in India before the appropriate court. The petition must have the ground of divorce mentioned and substantiated at later stage with evidence. Guidance and advice of experienced and competent divorce lawyer is needed.
SERVICE OF SUMMONS
The following step after filing of divorce petition is service of summons of the other party and giving them a notice that the divorce process has been already initiated by their spouse. The summons are served via speed post with a covering letter written on the letter pad of the Advocate.
After receiving the summons the spouse against whom the divorce is filed has to appear in the court on the mentioned date of summons. In case the other spouse fails to appear on the mentioned date, the judge may give the opportunity of ex-parte hearing to the petitioner and after that the court passes an ex parte order of divorce and put an end to the process of divorce.
Conducting the trial is the next step of divorce procedure in India. After the submission of the respective petitions, the court hears both the parties along with their witnesses and evidence. The respective lawyers will then conduct the examinations in chief and cross-examinations of spouses as well as evidences.
Interim orders is the another aspect of the divorce procedure in India. Petition can be filed by any party to get a temporary order in respect of child custody and maintenance in front of court during the divorce proceeding and after hearing and if the court is satisfied, the court passes interim orders.
This is the most crucial steps of a divorce procedure where the respective advocates argues before the court in order to establish the contentions of their clients on the basis of evidence filed and witnesses deposited. This step matters a lot to win the divorce proceeding.
The last step in divorce procedure is the pronouncement of the final order of the divorce. The court passes the final order after the completion of all the preceding stage which entirely dissolves a marriage. In case either of the party is not satisfied with the final order, then they have the liberty to move before the higher Courts.
IMPORTANT FACTORS IN DIVORCE
The main factors which need to be sorted out at the time of Divorce are:-
2. Custody of child
3. Settlement of property
Alimony is the obligation of the married ties to support each other which exists even after the dissolution of marriage which thereby means that if any of the spouses is incapable of supporting himself or herself is the obligation of another party and claim of alimony becomes stronger when husband or wife is ready to take the custody of the child.
CUSTODY OF CHILD
The custody of child amicably gets settled between parties in case of divorce with mutual consent. Whereas the parenting ability of both husband and the wife is examined in case of contested divorce and if required the court talks to the child in a friendly manner to understand the desire of the child and then the order of custody is passed on the best interest of the child. Moreover, irrespective of anything the mother is the natural guardian of the child till an age of 5 to 7 years and as such the case of custody would go in the favour of the mother without prejudice.
SETTLEMENT OF PROPERTY
The property gets settled according to the ownership of the spouses at the time of divorce.
NECESSARY DOCUMENT FOR DIVORCE
1. Address proof of both the parties
2. Marriage certificate or Invitation card of marriage or Picture of marriage
3. Proof of separate living of the spouses for more than a year
4. Details of earnings
5. Details of assets owned by the petitioner.
Marriage is considered to be a sacred bond by the Hindus. There was no provision for divorce before Hindu Marriage Act 1955. The concept of getting divorce was extremist for the Indian society. The wives had to face all the consequences and were the silent victims of the system. Presently, law provides many ways to get out of an unhappy marriage by seeking divorce procedure in the court. Thus, women have to no longer endure the harassment and injustice by their husbands. But on the other hand it is equally essential for the lawmakers to deal with the process in a very cautious manner as the theory has negative and positive traits.