Divorces, when they happen, are inherently heartbreaking. While the majority of Indian society, especially in the middle class, considers divorce as something of a taboo, they are still a reality in any society. However, we can all agree that separation is better than living in a relationship that has not been working out for a long time. Hence, the rising popularity of the number of divorce petitions in our country.
Still, not all matrimonial disputes end in divorce. There are provisions in our divorce laws too that offer alternative outcomes other than divorce. However, you never know how south a relationship between two people can go so it’s always a good idea to have a basic knowledge about how to go about filing for a divorce in our country. This blog details the divorce procedure for different types of divorce in India, so read on to know more.
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Types of Divorce
Before we go about the divorce procedure, it is important to know about the two divorce types in India that all divorce cases fall under. These are contested and uncontested divorces.
Contested divorces are those in which one partner files for a divorce but the other partner is opposed to it. There are several grounds for filing a contested divorce in various marriage laws in our judicial system. These divorces can only be taken forward if they are based on valid grounds, which we will discuss in more detail later.
Uncontested divorces, on the other hand, imply those divorces in which both parties are in agreement for the dissolution of their marriage. These require less expense and hassle than contested divorces and are thus also known as divorce by mutual consent.
Grounds for Divorce
To file a contested divorce, various grounds need to be cited as reasons. These grounds for divorce are more or less the same across the various laws that govern divorce in India, including the Indian Divorce Act of 1869, the Hindu Marriage Act of 1955, and many more. Here are the grounds for filing a divorce:
- Adultery – Either of the partners has been involved in voluntary sexual relations with a person other than his or her spouse.
- Cruelty – Either of the partners has been abusive to their spouse. This includes both physical and psychological abuse.
- Desertion – Has deserted their partner, or has been willfully neglecting them without their consent or against their wishes, for a period of two years or more before the divorce petition is presented in court.
- Conversion – Has converted to another religion.
- Mental Disorder – Has been suffering from any psychological disorder that makes them unable to function reasonably and maintain a marriage and requires medical care.
- Venereal Disease – Either partner suffers from any kind of sexual disease that is communicable (includes Leprosy too).
- Non-resumption of cohabitation – The couple has not lived under the same roof for a period of at least 1 year after filing for a judicial separation.
- Non-restitution of conjugal rights – Cohabitation has not been restored even after a judicial decree has been passed in a previous proceeding or has wilfully refused to consummate the marriage.
- Presumed Dead – The whereabouts of the spouse of the complainant have been unknown for over 7 years.
- Renouncement – Either partner has renounced the world after entering a religious sect, order, or cult.
Mutual Divorce Procedure
The procedure of mutual or uncontested divorce in India involves the following steps:
- The first step starts with a joint petition for dissolving the marriage which has to be signed by both parties.
- After the petition has been filed, the two parties must appear before the court for the first hearing. The court may try to reconcile the spouses by giving additional time to reconsider but if that doesn’t work, the divorce proceeds.
- After the statements of both parties agreeing to the divorce are recorded, the first motion is passed. The court will reconvene after 6 months for the second hearing.
- After the court reconvenes after six months without finding any discrepancies in the statements of the parties or without having them change their minds about the decision, the final hearing happens.
- The final verdict is passed and there can be no further differences regarding alimony, child support, custody, or division of property.
Contested Divorce Procedure
Since contested divorces involve a drawn-out court battle, most spouses filing them involve a divorce lawyer. A professional divorce lawyer, like the ones you can get from LexSolutions, can help a lot to minimize the stress caused by divorce by taking over many of the legal requirements. Let us now take a look at the steps involved in a contested divorce:
- The first step involves filing the divorce petition by either the husband or the wife. This is usually done by the divorce lawyer after they have explained the facts and circumstances regarding the case.
- After the petition is filed, the divorce laws in India property mandate the family court to issue a summons for the other spouse.
- When the other spouse responds, the first hearing is scheduled in which the court would hear the petition for the first time. The court may even suggest the party reconcile at the first hearing after listening to the lawyer’s opening arguments.
- The next step involves the court sending a notice to the opposing party which they have to attend with their counsel. There, witnesses and evidence are cross-examined.
- The court attempts to mediate the dispute failing to do which it will listen to the last arguments from the lawyers of both parties.
- The final step involves the court issuing the divorce decree after cross-examining the evidence and supporting witnesses of both parties.
Now you know about the basic steps you have to follow in case of a matrimonial dispute that is hinging towards divorce. Even with this guide though, we would advise taking the advice of a trained divorce lawyer first before filing a divorce petition in family court. This is because a lawyer can really go deep into the minute of the legal implications of a divorce case after hearing the facts and advice on the best course of action for you.
- Can I file for a contested divorce if my husband was already married?
Yes. There are special provisions for a wife to file a divorce under the Hindu Marriage Act of 1955, one of which is that the wife can file for divorce in case the husband has or had another wife before marriage with the aggrieved party. This is even valid in case he married after the commencement of their marriage.
- Can I file for divorce within 6 months of my marriage?
No. Indian divorce laws maintain that a divorce petition can only be filed after the couple has been living together for a period of at least one year.
- Why is triple talaq not valid anymore?
The Supreme Court of India has declared the practice of triple talaq as unconstitutional to the rights of women and hence it is not valid anymore and is a punishable criminal offence.
- Do I have other options than to wait for 6 months between the first and second hearing?
Yes. In the case of a mutual divorce there have been many recent hearings where the court has deemed the 6-month reprieve period as unnecessary when both the court and the parties are convinced moving forward is the best solution.