Legal Guide

How to File for Divorce: Divorce Procedure in India?

by Nikky Jha · 4 min read

Divorce Procedure

As per the legal system, a divorce procedure in India initiates the filing of a divorce petition. The divorce petition is filed by one of the parties, and the notice of Divorce is served to the other party. However, as per the divorce procedure in India, divorce laws can be personal laws depending upon the religion of the parties, like in marriage laws.

If the circumstances between the spouses are not ideal and they are unable to carry on the marriage like it is supposed to be, and they end up mutually deciding to part their ways legally, then they may file for mutual Divorce under Hindu Marriage Act, 1955. 

However, in an instance where one of the parties is unwilling to get a divorce, it is possible to file for Divorce in the aforementioned circumstances. In this case, the procedure will be followed for a contested divorce. 

What is Divorce? 

Before we move further into the prescribed divorce procedure in India, it is important to know what Divorce is. A divorce is the process of termination of a marriage. It’s the process that results in the dissolution of a marital union, which in turn results in the cancellation or reorganization of the duties and liabilities of a marital union. Thereby ending a marriage/ marital relationship. 

Kinds of Divorce 

Following are the two kinds of Divorce, both following different circumstances and having a distinct divorce procedure in India. The two kinds are as follows: – 

  1. Mutual Divorce – Mutual Divorce is where both parties, upon mutual consent, decide to proceed with the divorce procedure. They, as per their mutual consent, will present a petition jointly before the honorable court of law. 
  2. Contested Divorce – Contested Divorce is where one or both parties have a conflict upon some aspect of their Divorce. In this kind of procedure, they contest some aspects of their Divorce. This is done under circumstances where mutual consent is absent. The following are the grounds for a contested divorce.
  • Cruelty
  • Adultery
  • Desertion 
  • Lunacy
  • Leprosy
  • Communicable Venereal Diseases
  • Conversion to another religion 
  • Renunciation of the world 
  • Presumption of Death etc.  

Divorce Procedure in India for Filing for Mutual Divorce

  1. Filing of a Petition –the first step of the divorce procedure in India in case of mutual Divorce is a joint petition for the termination of marriage may be submitted before the family court by both the husband and wife on the grounds that they have been residing separately for a time span of one year or more. 

Additionally, they may also submit that they haven’t been able to compatibly live together, and hence they’ve mutually decided to file for Divorce and end the marital bond. This petition is to be signed by both parties to the case.

  1. Scrutiny of the Petition before the Court – Post filing the petition for Divorce, both spouses have to appear before the family court with their counsels. The petition will be scrutinized and examined along with all the relevant documents filed.

Following this, the court may initiate the reconciliation process, and if the parties are irreconcilable, then the matter proceeds. This is the second step of the divorce procedure in India.

  1. The passing of orders for the recording of statements on oath – After the documents and the petition is examined, and if the court is satisfied, then it may order the spouses to record their statements on oath. This is the third step prescribed in the divorce procedure in India.
  1. Order on first motion and passing of 6 months period before second motion –The recording of the statements by both the parties is followed by the order on the first motion being passed by the court. After this, a six months period is allocated to both the parties before filing for the second motion. 

Eighteen months is the maximum period given for filing the second motion. This begins from the date of presentation of the petition in court unless it’s withdrawn. 

  1. Second motion and final hearing of the matter – If, within the timeframe stipulated, the parties decide to carry on with the divorce procedure in India and appear before the court for the second motion, they may do so and proceed toward the final hearings.

However, the Supreme Court has held that the period of six months may be waived off at the discretion of the court. Hence, in the cases where the court is of the opinion that prolonging will only add to their sufferings, the six months duration can be waived off. 

Nevertheless, it’s established law that at any time before the decree is passed, any of them may withdraw their consent to divorce. Additionally, if the second motion is not passed within the timeframe of 18 months, the court will not pass any decree for Divorce. 

  1. Decree of Divorce – As per the divorce procedure in India, in the case of a mutual divorce, the parties mutually give their consent to legally separate from each other. There are no differences between the parties. Differences in regards to the alimony, maintenance, property, custody of a child, if any, etc.

It requires complete agreement between the parties for the dissolution of marriage. Following this, if the court is a satisfying post, all the arguments have been submitted, and the allegations are found to be true, there exists no possibility of any reconciliation. The court may pass a decree of Divorce, ending the marital relationship.

The finality of the Divorce is based upon the decree passed by the court. This concludes the divorce procedure in India in case of a Mutual decision to separate.

Documents Required for Mutual Divorce 

As per the divorce procedure in India, the following documents are relevant and required to be submitted along with the petition: – 

  • Address proof of the Parties
  • Professional Details of the Parties
  • Financial Statements of the Parties 
  • Certificate of Marriage
  • Wedding photographs of the husband and wife
  • Evidence that may prove that the parties have been living separately for more than a year
  • Family Background Details
  • Evidence showing the failed attempts at reconciliation 
  • Income Tax Statements of both Parties 
  • Details of the Property and Assets.

Procedure for Filing Contested Divorce 

The divorce procedure in India, in case of a contested divorce, is as follows: – 

  1. Preparation of the Petition- The first stage of the contested divorce procedure in India. Contested Divorce is where one party approaches the lawyer. The aggrieved party seeking the termination of marriage would require to explain and elaborate on the facts that have led them to the decision. 

The lawyer would prepare the petition subject to the circumstances stated by the party seeking a divorce. The petition would require the relevant documents supporting the allegations made by the party. 

Post finalization, the petition, along with the affidavits and vakalatnama would be attested by the contesting party in front of a notary/commissioner. 

  1. Filing of the Petition –  Once the petition is made and all the compliances have been taken care of, the petition is required to be filed before the family court, subject to the appropriate jurisdiction. This is the second step of the contested divorce procedure in India. The second step of the contested divorce procedure in India.
  1. Scrutiny of the Petition by Court – The court, on the basis of the allegations and grounds provided by the contesting party on the first date of the hearing, would scrutinize the petition.
  1. Opposition’s appearance in the Court – The following step of the contested divorce procedure in India is dependent upon the satisfaction of the court as to whether the matter shall be adjudicated or not; a notice would be served upon the non-contesting party. 

Following this, a copy of the petition and the notice would be sent to the opposite party.

Following this, on the next date, the opposite party would appear in court with their lawyer and address the allegations made against them. They are required to file a reply to the divorce petition and any other application, if any. 

  1. Direction for Mediation – In the beginning, the court would try to reconcile and resolve the matter. However, it may also direct the parties to mediation in order to reach an amicable solution. In the case where the mediation process fails, the court would continue with the divorce proceedings.
  1. Framing of issues and recording of evidence by the court – The court, while processing the matter, will frame the issues and record evidence. Both sides will be required to submit evidence and be ready for cross-examination and produce appropriate supporting witnesses. 
  1. Final Arguments of the Parties – Post the completion of the process of submitting evidence and cross-examinations, the lawyers for both parties would be required to conclude their arguments. Following this, the date for pronouncement will be given. 
  1. Decree of Divorce – The Judge will make the decision based on their discretion. Upon satisfaction and if deemed fit, a decree for Divorce would be given. The decision is given on a case-to-case basis. 

If the verdict is not accepted by either party, they can file an appeal. However, it is subject to a limitation period of 3 months from the date of the decree. This concludes the contested divorce procedure in India.

Documents Required for Contested Divorce 

Following are the documents required for the Contested Divorce procedure in India: – 

  • Address proof of the parties
  • Photographs of Marriage of the Parties. 
  • Certificate of Marriage
  • Evidence supporting the ground of Divorce.
  • Financial Statements of the Parties
  • Professional Details of the Parties

Conclusion

Marriage is a sacred unity of two people, and preserving the sanctity of this sacred relationship is the duty of both the man and wife who decide to be united by way of marriage, however in circumstances where it’s impossible to carry on this relationship. 

The law provides ways to step out of an unhappy marriage. However, lawmakers must always try to preserve a marriage to safeguard its sanctity and must be cautious when a circumstance of Divorce arises. To know more about the divorce procedure in India, get a divorce lawyer consultation now. 

A divorce is the process of termination of a marriage. It’s the process that results in the dissolution of a marital union. To know more about the process and clarifications on how to file it, consult a divorce lawyer.

Nikky Jha

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Nikky Jha

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