The laws and divorce procedure in India are governed by the Hindu Marriage Act for marriages solemnized according to Hindu rites and rituals, the Special Marriage Act for inter-religion marriage, the Indian Divorce Act for marriages performed according to Christian rites and rituals, the Parsi Marriage and Divorce Act, the Dissolution of Muslim Marriage Act, the Foreign Marriage Act and the Muslim Women (Protection of rights on divorce) Act, 1986.
With the passage of time, the number of cases of divorce has significantly increased. The root cause of the increase in litigation relating to matrimonial relations is the increasing intolerance of the spouses towards each other, poor communication skills, lack of respect, wrong advice by relatives, etc. to name a few. As per the statistical report of the Mediation Centre, Tis Hazari Courts, Delhi, 63% of matrimonial disputes are settled meaning thereby that the differences between married couples are sorted out by way of communication and understanding. One can check out the lawyers dealing with divorce who can represent the matter in the family court proficiently.
Stepwise Process to Get Divorce in India
A particular framework is designed to be followed for every legal process. And specifically, when it comes to the dissolution of marriage, a lot of obligations are to be met with. The contested divorce procedure in India differs from the uncontested one to a greater extent. The proceeding will be less hectic and financially draining in case of divorce with mutual consent in comparison to the contested divorce. Without beating around the bush anymore, let us start with the stepwise divorce procedure.
Filing the Divorce Petition:-
The foremost step is to initiate the process with a divorce petition. Things to consider while filing the divorce petition are:
Mutual Consent Divorce:
i. The application for mutual consented divorce will be filed Section 13B of the Hindu Marriage Act, 1955, or Section 32B of the Parsis Marriage or Divorce Act, 1936, Section 10A of the Indian Divorce Act, 1869, or Section 28 of the Special Marriage Act, 1954, depending upon the status of the parties.
ii. While filing a petition for mutual consent divorce, the couple must be separated for at least 1 year and in case of the Indian Divorce Act, the period of separation is 2 years.
iii. A settlement agreement outlining maintenance, property distribution, stridhan, child custody, etc. should be attached to the petition.
iv. After the first statement is recorded, the court gives a time of six months known as the “cooling-off” period. This period can be waived subject to certain conditions.
v. The second statement should be recorded within 18 months of the date of the filing of the petition.
Contested Divorce:
i. When only one party is willing to separate, he/she can initiate the process in the family court by drafting a divorce petition.
ii. A contested divorce can be filed under Section 13 of the Hindu Marriage Act, 1955 or Section 2 of the Dissolution of Muslim Marriage Act, 1939 or Section 10 of the Indian Divorce Act, 1869 or Section 32 of the Parsis Marriage and Divorce Act, 1936.
iii. The petition must be properly drafted with legal grounds mentioned and documents attached.
iv. There should be no condonation of the matrimonial offence.
Documents Required to File a Divorce Petition in India
There are certain necessary documents which one should be prepared with.
1. In case of mutual consent divorce
i. Age, identity proof and address of the petitioners (both husband and wife in case of divorce with mutual consent).
ii. 2 passport size photographs.
iii. Proof of marriage like a Marriage certificate or marriage photographs.
iv. Settlement agreement
v. Proof that the couple has been separated for the time stipulated in the concerned Acts.
vi. Vakalatnama and other affidavits are also submitted along with the petition.
2. In case of contested divorce
i. Identity documents of the petitioner;
ii. Proof of marriage like a Marriage certificate or marriage photographs.
iii. Documents, if any, to substantiate the ground of divorce taken by the petitioner.
iv. Income tax statements (both husband and wife in case of divorce with mutual consent).
v. Profession and remuneration details of the petitioner (both husband and wife in case of divorce with mutual consent).
vi. Property and assets owned by the petitioner (both husband and wife in case of divorce with mutual consent).
vii. Vakalatnama and other affidavits are also submitted along with the petition.
Service of Summon
During a contested divorce, a summon is sent to the other spouse to inform him/her regarding the divorce petition. The respondent on the receipt of the summon can appear either in person or through counsel on the date set out in the summon. The summon delivered to the other party is available with the date on which he/she has to appear in court in response to the divorce petition. In case, the other spouse doesn’t appear in court on the date of hearing, the petitioner is going to enjoy the opportunity of ex-parte. As per this ex-parte hearing opportunity, the divorce decree will be granted to the petitioner by putting the process to end.
Response
The respondent after appearance gets time to file a reply to the petition of divorce. The respondent in reply has to counter the claims leveled by the petitioner and tell his/her side of the story to the court.
Replication
After the respondent files the reply, the petitioner can file a replication which in layman terms is a reply to the reply filed by the respondent. In the replication, the petitioner counters all the claims leveled by the respondent.
Trial
All the accusations and evidence will be addressed in the court during married couples. During the trial, both the parties will present their points and evidence with witnesses with the help of their respective divorce lawyers. Thorough evidencing and cross-examination are done to explore every facet of the case.
Interim Order(s)
An interim order is an additional step in the divorce process which is mostly asked for. The dissolution of marriage in India is not an easy process that one can expect to end immediately. This may end in a 6 month period or can take 3-4 years or even more. So in between that period, issues like physical custody of the child or financial crisis may occur for which interim orders are generated by the court for the applicant or the respondent.
Majorly, an application for interim orders is filed for:
i. Maintenance or financial support till the time of final orders.
ii. Custody of the child until the final order.
Argument
The most crucial step for a divorce lawyer is the argument stage. The lawyers of both parties are going to argue in the court after evidence to prove their client’s point. Various disputes (child custody, alimony, visitation rights, distribution of assets, property) will also be addressed at this stage.
Final Orders
After going through all these steps and convinced with the arguments and evidence, the court will grant the divorce decree. In case, any of the parties is not satisfied with the court’s decision, it can be challenged in the higher court.
So these are the steps followed to get a divorce in India. For more information and professional consultation regarding matrimonial or divorce matters, our expert divorce lawyers in Chandigarh can be contacted from Monday to Friday between 10:00 am to 6:00 pm and between 10:00 am to 2:00 pm on Saturdays.
This article is written by Anjali Bisht. The author can be contacted via email at anjali@bnblegal.com
For more information and professional consultation regarding divorce matters, our expert divorce lawyers in Chandigarh can be contacted from Monday to Friday between 10:00 am to 6:00 pm and between 10:00 am to 2:00 pm on Saturdays.
