Legal Procedure for Divorce in India

In India, marriage is a big deal not only concerned with two people but two families. There are different traditions among people in different communities and religions. Coming to the legal track, there are various personal laws which govern matters related to marriage and divorce. Marriages in India philosophically different from the Westen Scholl of thought where it is more considered to be a contract unlike India. In the Indian subcontinent and typically in India/Bharat marriage is considered as sacred union of two persons and thus till the advent of the modern era the cases of divorce were few and far.

Today the world has changed, and the personal liberty of an individual has become more important that before and therefore if a marriage is found not be working then the spouses prefer to separate away. Even the new world has accepted the fact that it is better to dissolve the marriage than live in a straightjacketed manner with suffocating life. Moreover, the erstwhile stigma hanging around the status of being “Divorcee” has been diluted and the divorcees are finding more acceptability in the society regardless of the gender.

Once a married couple or either of the one spouses decides to move on and end the marital ties then the basic thing it is done is to explore the legal ways of terminating the social cum legal bond existing between the parties. As envisaged in our Indian laws the dissolution of the marital bond can be achieved though the legal process of either divorce or separation. There are different types of divorce in India based on religious laws as well as on the ways and grounds under which the divorce case is initiated by the parties. 

Before we deep dive into the world of divorce lets have clear understanding of the difference between “divorce” and “separation”. When the court grants a divorce decree then the marital bond is completely extinguished, and the parties are no longer husband & wife (spouses) to each other. In case of judicial separation the parties are allowed to stay separately but still they would be related to each other as husband and wife. As said earlier judicial separation and divorce whose rules and regulations vary as per the applicable laws is another way to put a stay on the necessity of staying together in a marital relationship.

Types of Divorces in India

In general, there are two types of divorce, i.e., contested divorce when one of the spouses files a case and the mutual divorce when both parties, i.e. husband and wife are willing to end the marital obligations.

Mutual Consent Divorce: When both the parties have come to the table, discussed and agreed to end the marriage after, generally, settling all the claims and custody of the children and together file a joint petition to the family or district court for getting the marriage dissolved then it is called as MCD or mutual consent divorce. As it sounds the parties have together consented for the divorce and there are less or no heartburns in the process.

Contested Divorce: Many a times only one of the spouses would be seeking divorce and other may not be wishing for the same and thus in such cases the party which is interested to break the marriage will be filing a petition for divorce in the appropriate court. It is important to note here that contested divorce can only be filed on certain grounds which are allowed by the law of the land.

Regarding the procedure of divorce, it is the courts in India who hold the authority to affirm a legal status. Hence, people cannot mutually decide that we will end this civil union of marriage and start living separately. This is not how divorces happen, not in India at least. Religious rites may get you married, but for ending it, conducting the due divorce procedure through court is needed. The blog here throws some light on the process to be followed by couples or spouses thinking of ending their marriage.
 

Things to Remember Before Approaching Court for Divorce

Before you even think about how to get divorce from husband or wife, there are some things which need to be kept in mind and if possible settled well before impulsively ruining the relationship:

• Do not initiate divorce procedure before attempting reconciliation with your spouse. It may deteriorate any hopes remaining for saving such marriage.
• If there is no scope left for saving your marriage, try to convince your spouse for a mutual consent divorce. This way, it becomes easier for couples to part their ways amicably.
• If the other spouse is not willing to divorce and end this marriage while you still wish to part ways, you need to satisfy one of the divorce grounds for a contested divorce. For that matter, collection of evidence is crucial.
• While contesting a divorce, it becomes the petitioner’s duty to satisfy the court regarding any one or more grounds of divorce. Hence, if you are applying for cruelty as a ground for divorce, you need to clarify whether it is physical or mental cruelty and bring proof accordingly. 
• It should be noted that contested divorce procedure in India is a bit time consuming as compared to mutual one. 
• Financial risks always accompany the procedure for divorce. You have to take care of personal expenses and also arrange fees for divorce lawyers which increases based on complexity of a case. Hence, these things also need to be prepared before initiating the procedure for filing for divorce.
• Apart from ending the relationship as a husband and wife, couples also need to decide for child custody in case they have one or more children from this marriage. It is better to settle mutually on this aspect as well. Otherwise, the battle of custody is harmful for children as well, but the same cannot be avoided if parents are divorcing.
  
  

Procedure for Divorce in India

In movies, there is one instance of adultery and couples reach out for a mutual consent divorce very easily. In real life, divorces still remain a nightmare, especially in eastern countries like India where marriage still means ‘forever together’. In such a case, even laws are shaped in such a way that marriages cannot come to an end at the drop of a hat. If one of the spouses is willing to stay in marriage, while the other one wishes to stretch it to a climax, courts take time. In such cases, the person seeking divorce needs to prove one of the grounds for divorce in India, that too beyond reasonable doubt. So, if this person fails to establish the divorce ground before the court, he/ she will have to stay in the marriage against his/ her will. Even in mutual consent divorce, reconciliation is sought unless the situation is grave and beyond any scope for repairs. Thus, the process involved for mutual or contested divorces in India first considers reunion. 

Divorce by Mutual Consent Procedure

As the term suggests, the decision of terminating marriage is mutual. It happens when both husband and wife have realised the lack of spark in their relationship, or some other grave reason because of which, they cannot stay together anymore. Even in such cases, if the court sees some hope, couples are referred to marriage counselling or mediation, whichever suits better. The process followed MCD is as given below:

1. Even if both the parties are willing to end the marital relationship, divorce will still be granted through a court of law. Family courts do not necessarily need a lawyer, for the very reason that family relations are respected above the black ‘n’ white laws. Still, consultation with mutual divorce lawyers may bring a lot of clarity over technicalities.
2. As per law, it is usually required that the couple seeking mutual divorce should be staying separately for at least 1 year. There should not be events of sexual intercourse as well between husband and wife during this period. However, this 1-year separation is not a hard and fast rule since ultimately, the welfare of people is paramount.
3. The process is initiated with a divorce petition by wife and husband filed mutually in the court of suitable jurisdiction. 
4. Both the parties appear before the court and their statements are recorded. It is followed by ‘first motion’, a cooling period of 6 months providing husband and wife a chance for patch-up. 
5. The ‘second motion’ is followed by final hearing and the decree is passed accordingly.
6. Mutual divorce decrees are usually reached through the court with the consent of both the parties. Hence, appeals against the same are not maintainable. 
   
   

Contested Divorce Procedure in India

When one party wants divorce while the other is still willing to end the marriage through divorce, it becomes a contest between the two fighting for their version of facts. One brings to court the reasons why this marriage cannot be continued and proves one of the grounds of divorce. The other one is not necessarily required to prove anything, but it may be proved as to how the allegations of the one seeking divorce are wrong. The procedure of divorce in such cases is as follows:

1. Hire a local lawyer to represent you in the court. If you are in Kolkata, then an experienced divorce lawyer in Kolkata will help bring the matter to court.
2. First, communication is preferred with the spouse before knocking the court’s doors. Hence, a legal notice for divorce is served by the spouse willing to end the marriage to the other spouse. Preference is given to settle things mutually through this notice.
3. If there is no settlement, divorce petition is filed in the court of suitable jurisdiction. As per the Hindu Marriage Act, 1955,  or Special Marriage Act, 1954, such a court may be at a place where the marriage was held, where the matrimonial home is, or where the couple last resided together as a husband and wife.
4. Summons are served to the parties to appear before the court. 
5. When both the parties appear before the court, attempts are made for reconciliation among the parties. 
6. The petitioner’s version is also shared, which has to be answered point wise by the other spouse. Documents and other stuff is discovered to support claims of both the parties. Based on demands of the other party, a chance for mutual settlement is also given.
7. If there is no possibility of settlement, the trial begins. Both parties are examined and cross-examined.
8. The complete proceedings come to an end with this and the court decides the matter accordingly as per applicable laws, facts of matter, and the practices followed. 
9. The court may either uphold the claim and grant divorce for the legal ground sought. If the petitioner seems unable to prove his/ her version in the court regarding any of the grounds of divorce, the application is rejected and the marriage continues. 
10. Any party aggrieved by the court’s decision can appeal to a higher court.

Knowing the process before heading for an action is always better. Divorce is in itself a devastating idea since the world created by two families at the time of marriage collapses with it. Knowing the path ahead in the form of divorce procedure helps people understand what may follow and what needs to be done to make things easier.

FAQs

1. What is the first procedure for divorce?
   The divorce petition is the initial stage in the divorce procedure. The spouse filing for divorce (petitioner) must provide a formal document explaining the grounds for divorce, as well as any supporting documentation.
   
   
2. What are the stages of divorce?
   1. Filing a petition to the court
   2. Sending summons to the other side
   3. Filing of reply (written statement) by the other side
   4. Reconciliation ( if court wishes to)
   5. Evidence of the parties
   6. Argument
   7. Judgemnet
      
      
3. What is the easy process of divorce?
   Mutual Divorce has the easy process of divorce as both the husband & the wife mutually come to a conclusion to put an end to their marriage.
   
   
4. What can wife claim in divorce?
   The wife can claim “Stridhan” and if the wife is separated or abandoned by her husband, she can claim the right to stay in the matrimonial house in addition to the maintenance for herself and the children. Alimony and rights in the property can also be sought as per the applicable law.