Divorce is the formal dissolution of a marriage by the filing of a petition with a court of law. When a court issues a divorce judgment, it dissolves the marital union between the parties and, by extension, the whole marriage.
In addition to the separation of husband and wife, it entails the division of property and assets and the question of child custody. The divorce process in India differs according to the religion of a particular person. This blog discusses the divorce process in India for Hindu Law and Muslim law.
What sorts of Divorce exist under Hindu law?
Hindu law classifies Divorce as one of two types:
Section 13-B of the Hindu Marriage Act governs mutual Divorce. As the term implies, in a mutual divorce, both parties, i.e., the husband and wife, express their permission for a peaceful separation.
The husband and wife must resolve in advance any difficulties with alimony and child custody. There are just two conditions for filing a mutual divorce:
- mutual agreement and
- at least a year of living apart.
When Divorce is initiated by either partner, it is referred to as a Contested Divorce. In accordance with Section 13 of the Hindu Marriage Act of 1955, the reasons for obtaining a disputed divorce include cruelty, change of religion, insanity, contagious illness, or the absence of either spouse for more than seven years.
What is the divorce process in India for Divorce with mutual consent?
The divorce process in Indiafor filing for mutual Divorce in India is as follows:
- The first step of the divorce process in Indiais to draft a petition detailing the grounds for Divorce, with the consent of both parties after taking legal consultation.
- To file the petition jointly with the family court via respective attorneys is the second step of the divorce process in India.
- After examining the petition and supporting papers, the court will issue an order for the recording of the sworn statement.
- After this, the parties are allowed a six-month cooling-off period in the hopes of their reconciliation.
- After six months, if no reconciliation has occurred, both parties must attend the final hearing. (Parties must present for the second motion within 18 months of the divorce petition filing date.)
- At the conclusion of the last hearing, the court issues a divorce judgment terminating the marriage.
What papers are necessary for the Divorce Process in India for Divorce by Mutual Consent?
The divorce process in Indiainvolves the following documents necessary for Divorce by mutual consent:
- Proof of Residence for Husband and Wife
- Marriage Certificate
- Photographs of the Spouse and Spouse
- Evidence demonstrates that mediation was ineffective, and the parties were unable to reconcile.
- Proof that the husband and wife have lived apart for over a year
- Information on the professions and current salaries of the couple.
- Last three years’ Income Tax return
- Information detailing the couple’s matrimonial history
- Information on the property and assets possessed by the spouse.
What is the Divorce Process in India for a Contested Divorce?
Either spouse may seek a disputed divorce based on the aforementioned reasons. The divorce process in Indiafor Contested Divorce is outlined below:
- The step of the divorce process in India is to draft a petition that clearly states the facts and reasons for Divorce. This petition is submitted with necessary affidavits, vakalatnama, and documents before a family court with jurisdiction.
- If the court is pleased with the petition and chooses to proceed with the case, it issues a notice or summons to the opposing party, together with his or her attorney, to appear on a certain day.
- At this point, the court will offer mediation to the parties, and if the mediation fails to address the dispute, the divorce process will continue.
- Both parties will come before the court on a predetermined day, record their remarks, submit evidence, undergo cross-examination, and present their witnesses, if any. The attorneys on both sides will next make their closing arguments.
- Fifthly, the court will issue a divorce order and verdict at a certain date. Within three months after the issuance of the order, the aggrieved party may file an appeal.
What paperwork is necessary for a Contested Divorce process in India?
The following documents are necessary for a Contested Divorce process in India:
- Proof of residence for husband and couple
- Documents pertaining to the financial position of the husband and wife, such as a certificate of income or tax returns.
- Marriage certificate
- Documents establishing the grounds for filing for Divorce
What is the Muslim Divorce Process in India?
In India, there are two ways to get a divorce under Muslim law:
- The Dissolution of Muslim Marriages Act of 1939 governs the judicial procedure
The following reasons are specified in Section 2 of the aforementioned Act for Muslim women to file for divorce process in India:
- The husband’s whereabouts have been unknown for at least four years.
- The spouse failed to give support for a minimum of two years.
- The spouse has been sentenced to at least seven years in jail.
- The spouse failed to fulfill his marital duties for at least three years without justification.
- The spouse was impotent at the time of marriage, was afflicted with venereal disease, or was mentally unfit for at least two years.
- The husband was harsh to his wife or married before the age of fifteen.
The aforementioned reasons can lead to the filing of a divorce.
2. Extra-Judicial Process
There are certain kinds of Divorce that are mentioned under Muslim Law. Both the spouses have the right to file for Divorce.
What are the documents required for starting a divorce process in India under Muslim Law?
Following are the documents required for starting a divorce process in India under Muslim Law:
- Proof of residence
- At least two years of tax returns
- Documents pertaining to assets owned
- Evidence pertaining to accusations, such as medical records in situations of abuse or endemic illnesses
The blog discusses the divorce process in India. India’s personal law pertaining to marriage and Divorce is sufficiently developed, with an adequate number of statutes and case laws. However, these rules must also adapt to a changing culture, and the Indian family courts have done an outstanding job of understanding this.
One must consult a divorce lawyer to get a divorce. A divorce lawyer guides you in the best possible way and helps you to get a divorce within a reasonable time. Therefore, it is advisable to go for legal consultation in such cases.