Legal Guide

Know the Divorce Procedure in India

by Bhavya Choudhary · 3 min read

divorce procedures

Introduction

  • The divorce procedures in India begin with filing the divorce petition and end with issuing the final divorce order after following all the divorce procedures.
  • Divorce procedures are divided into six stages: petition filing, summons service, response, trial, interim orders, and final orders.
  • Divorce is the legal dissolution of a marriage through the filing of a petition in a court of law followed by other divorce procedures.
  • When a court issues a divorce decree, it ends the matrimonial alliance of the spouses and thus ends the marriage.
  • Along with the divorce procedures, it also involves the division of property and assets, as well as the issue of child custody. Divorce procedures and laws in India differ according to religion.

What are the Different Types of Divorce in Hindu law?

Divorce is classified into two types under Hindu law:

  • Mutual divorce: Mutual divorce is governed by the Hindu Marriage Act. As the name implies, both parties, i.e., husband and wife, mutually agree and express their consent for peaceful separation in a mutual divorce. 

The husband and wife must take legal advice from a lawyer and predetermine alimony and child custody issues if any. There are only two requirements for filing a mutual divorce: mutual consent and living separately for at least one year.

  • Contested Divorce: A Contested Divorce occurs when either spouse initiates the divorce. Hindu Marriage Act of 1955 specifies the grounds for a contested divorce, which include cruelty, conversion of religion, insanity, communicable disease, or either spouse’s absence for more than seven years.

Mutual consent divorce procedures:

The divorce procedures for filing for mutual divorce in India are as follows:

  • STEP 1: Create a petition outlining the reasons for the divorce and ensuring that both parties agree on it.
  • STEP 2: File the petition in family court jointly through respective divorce lawyers.
  • STEP 3: Following an examination of the petition and accompanying documents, the court will issue an order for the recording of the oath statement.
  • STEP 4: Following this, the parties are given a six-month cooling period in the hopes of reconciling.
  • STEP 5: If there is no reconciliation after six months, both parties must appear for the final hearing. (The parties must appear for the second motion within 18 months of filing the divorce petition.)
  • STEP 6: At the final hearing, the court issues the divorce decree, effectively ending the marriage.

Contested Divorce Procedures in India

The contested divorce is initiated by either spouse on the basis of the aforementioned grounds. The divorce procedures to file for a Contested Divorce in India are as follows.

  • STEP 1: Create a petition that clearly states the facts and grounds for divorce. This petition is filed in a family court with jurisdiction, along with affidavits, Vakalatnama, and relevant documents by a divorce lawyer.
  • STEP 2: If the court is satisfied after reviewing the petition and decides to proceed with the case, it issues a notice or summons to the opposing party to appear on a set date with his or her lawyer.
  • STEP 3: At this point, the court will recommend mediation to the parties, and if mediation fails to resolve the issue, the court will proceed with the divorce proceedings.
  • STEP 4: On a set date, both parties will appear in court, record their statements, submit evidence, be cross-examined, and present any witnesses. The attorneys for both sides will then present their closing arguments.
  • STEP 5: Finally, on a set date, the court will render its decision and issue a divorce decree. The aggrieved party has three months from the date of the order to file an appeal.

What are the basis and divorce procedures in India under Muslim law?

Divorce procedures Under Muslim Law in India

The said Act specifies the following grounds on which Muslim women in India can seek divorce:

  • The husband’s whereabouts have been unknown for at least four years.
  • For at least two years, the husband failed to provide support.
  • The husband was sentenced to at least seven years in prison.
  • The husband failed to meet his marital obligations for at least three years without justification.
  • The husband was impotent at the time of marriage, was suffering from venereal diseases, or was mentally ill for at least two years.
  • The husband was cruel to his wife or married before the age of fifteen.

Christian Divorce Procedures in India

There are two ways to file a Christian divorce in India under the Indian Divorce Act of 1869. 

Mutual Divorce procedures: If the parties agree that they have not been able to live peacefully together and have been living separately for at least two years, they make take legal advice from a professional lawyer and file for mutual consent divorce.

Contested Divorce procedures: Either the husband or wife can file a petition in the Court on the following grounds:

  • Adultery
  • Stopped being a Christian
  • If he/she is of unsound mind for a minimum of 2 years
  • Suffering for at least two years from a virulent and incurable form of leprosy
  • No whereabouts of husband/wife for 7 years
  • Refusing to consummate the marriage on purpose
  • Failed to comply with restitution of conjugal rights decree for two years or more
  • Abandoned for at least two years
  • Husband is guilty of rape, sodomy, or bestiality

We hope this blog has helped you understand the divorce procedures in India. Different religions have different divorce procedures and laws. Along with the divorce procedures, it also involves the division of property and assets, as well as the issue of child custody.

Conclusion

Marriage has lost its holy-communion nature somewhere between modern laws and an ever-growing society. Most Indian laws are based on English laws, with little regard for the nature and vulnerability of Indian culture. However, the current state of affairs in the country necessitates divorce procedures. When one is granted the right to life as a fundamental right, he or she gains the ability to choose whether or not to live with someone, and this cannot be denied.

The quickest way to get a divorce is to file for Mutual Consent Divorce, in which both parties agree and support the divorce. To know about the procedure, take legal consultation.

Bhavya Choudhary

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Bhavya Choudhary

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