Divorce is among the most painful event for any married relationship. As Divorce is a matter of family law, it relates to religion. Divorce is a complex process in India, and therefore, divorce lawyers must be consulted.
The action of officially dissolving a marriage by the Court or other competent body can be termed as Divorce. It means to separate or dissociate oneself from his or her spouse, usually with an undesirable effect.
Firstly, a joint petition for termination of marriage is to be presented to the family court by both spouses. The petition must be signed by both parties. Both the parties will have to be seen before the family court after the filing of the petition. After the petition is examined by the Court and the Court is satisfied, it may order the party’s declarations to be recorded on oath. If the Court is convinced, it may grant the Decree of Divorce.
Divorce Vs. Annulment
The main purpose of Annulment is to declare a marriage void which means it was never a valid marriage. However, in Divorce, the party asks for Divorce to end a valid marriage. After the Annulment, the party becomes single or unmarried, but after Divorce, the parties become divorced.
Divorce Vs. Legal Separation
Judicial separation can also be termed as legal separation. Judicial separation gives freedom from marital responsibilities and commitments for a certain period of time, while Divorce ends the marriage eternally. Under judicial separation, the parties can rethink their marriage and resolve it, but under Divorce, one cannot reunite their marriage.
Divorce Laws in India
Divorce among Hindus, Buddhists, Sikhs, and Jains is regulated by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936, and Christians by the Indian Divorce Act, 1869. All other civil and inter-religious marriages are regulated by the Special Marriage Act, 1956.
Types of Divorce
Divorce with Mutual Consent
When husband and wife both agree to a divorce, the courts will think about Divorce with mutual consent. For the petition to be acknowledged, however, the couple should be living separately for over a year or two years and be able to prove that they have not been able to survive together. Matters such as children’s guardianship, alimony, and property rights must be decided mutually.
Without mutual Consent, Divorce will have to be argued. Either party can file for Divorce by quoting causes such as – Adultery, Conversion, Leprosy, Venereal disease, Cruelty, Mentally unstable, Renunciation of death, Non-resumption of cohabitation by a spouse, etc.
Divorce Rules in India
The only prerequisite for Divorce by mutual consent is that the parties should have been living separately for a period exceeding one year or more.
- Address proof both husband and wife
- Certificate of marriage
- Four passport size photographs of the marriage
- Evidence proving spouses are living independently for more than a year
- Proof relating to the failed attempts of reconciliation
- Income tax statements for the last 2-3 years
- Details of work or business and present salary
- Data relating to family background
- Details of properties and other holdings owned by the petitioner
The claim of either spouse depends on the husband/wife having adequate means. While determining the payment on the maintenance, the Court will consider the earning ability of the husband and his ability to rejuvenate his fortune and his responsibilities.
A spouse can send a legal notice for Divorce to the other spouse to convey his/her intent to take legal steps further covering the marriage relationship. It is a formal interaction that is the first step to end the ‘husband and wife’ connection.
Divorce can be filed online if both parties mutually agree through the online firms. For filing an Online Divorce, both parties must agree on all the matters. One of the benefits of an online legal service is that it is convenient as against the physical filing procedure of Divorce. However, the parties will need to be physically present before the magistrate, who will hear the Divorce arguments of both parties.
If the Court is convinced after hearing the parties to the petition that the claims in the petition are true and that there cannot be any likelihood of resolution and living together, it can pass a decree of Divorce announcing the marriage to be dissolved.
It should always be the priority of the Court and the lawyer to conciliate between the parties in the matters of Divorce. However, it is recommended that it is better to separate than to not be happy. If the marriage is not working out, one should take legal recourse and move on in their respective lives.