Divorce procedure in India

Usually, there are two types of divorces in India - Mutual Consent Divorce and Contested Divorce. During divorce negotiations, both parties (husband and wife) must express their desire to separate with their own will, which is referred to as a divorce with mutual consent, and in this procedure, the couple can mutually apply for a divorce. Whereas, the other type of Divorce is called a contested divorce or divorce without mutual consent, which is filed without the consent of the other person which can be the husband or wife.

Divorce under such a circumstance is generally sought on grounds of cruelty, adultery, desertion, conversion, mental illness, communicable disease, renouncing the world, or the presumption of death. Following is the step-by-step procedure to file both types of divorces below.

Know what are the common reasons for taking a divorce in India.

Contested Divorce Procedure

Depending on the grounds stipulated in the Hindu Marriage Act, of 1955, a contested divorce can be filed (if one party wishes to divorce but the other party does not consent). Consulting a divorce attorney before filing for a contested divorce is the first step.

Step 1: Preparing of Divorce Petition

In a contested divorce, as said earlier, a single party files for a legal notice for divorce explaining all the facts and circumstances leading to the divorce. Relevant documents should be attached to the petition along with the affidavit and vakalatnama.

Step 2: Filing of Divorce Petition

The petition will be filed in the appropriate family court after it has been prepared and all formalities have been completed.

Step 3: Scrutiny of Petition of Court

When the petition is heard on the first date of the hearing, a court will review the petition and hear the lawyer's opening argument (pertaining to the allegations and grounds).

Step 4: Appearance of the opposite party

Post satisfaction of the court about the petition, a summon is sent to the opposite party for the next date of hearing and the opposite party has to file a reply to the divorce petition.

Step 5: Direction for Mediation

In the initial stages of a dispute, the Court may direct the parties to attend mediation, so that a peaceful resolution can be accomplished. In the event that mediation does not result in a successful or fruitful settlement, the court would continue with divorce proceedings. Learn more about the mediation process in India here.

Step 6: Framing of issues

Issues will be framed and evidence shall be recorded by both parties which will be cross-examined and witnesses produced.

Step 7: Submission of Arguments

In the end, both parties would be required to give their final arguments before the judge once the lengthy process of recording/producing evidence and cross-examination has been completed.

Step 8: Final Decision

A final decision would be made by the judge and, if necessary, a divorce decree would be issued. Depending on the facts and circumstances of each case, a verdict will be rendered. In the event the verdict is not accepted by either party, an appeal can be filed by the party with the assistance of an attorney.

Know what are the grounds and procedure to file a Contested Divorce.

Mutual Consent Divorce Procedure

The most important element in the mutual consent divorce procedure is the will to get separated. Additionally, there are certain elements that should be ensured while filing for a divorce:

• Husband and wife should be living separately for a minimum time of 12 months;
• Mutual consent for divorce should be there;
• Their unwillingness to stay together;
• There should be a period of 12 months since their marriage.

Following are the steps to file a mutual consent divorce:

Step 1: Submission of Divorce Petition

A drafted application for a divorce should be submitted at a family court along with the applicable court fees. A divorce lawyer can help you in the drafting of a divorce petition.

Step 2: Court Notice

A formal notice which is legally known as a summons is issued by the family court to the second or opposite party, through speed post. Summons are sent to let the other party know that their spouse has initiated the divorce process.

Step 3: Response to Court Notice

The party who has received the court notice has to appear before the court on the date mentioned in the summons and if they fail to attend the hearing, the court will give them another chance hearing. On recurring failure, the court will pass an ex-parte order and declare the judgment of divorce.

Step 4: Initiation of Trial

During this step, the court will hear both parties and proper evidence will be submitted along with the testimony of witnesses. As a rule, the opposing lawyers are responsible for cross-examining and examining witnesses and evidence in front of the court.

Step 5: Arguments Submitted

Both the Parties and their lawyers submit their arguments on the basis of the evidence submitted and when the court is convinced about it, the decision is declared.

Step 6: Completion of the process

As soon as all the stages mentioned above have been successfully completed, the court will pass the final order. In case any party is unhappy with the final order, they can appeal it to a higher court.

Learn in detail about the various conditions, processes, and documents required to apply for Mutual divorce.

Document Needed:

A divorce petition requires the following documents, and our expert lawyers help you prepare them if anything is missing:

1. Address proof of husband
2. Address proof of wife
3. Photographs of marriage between the husband and wife
4. Certificate of marriage
5. Evidence supporting the ground on which divorce is sought (cruelty, adultery, desertion, lunacy, leprosy, the presumption of death, conversion to another religion, etc.)
6. Professional and Financial proofs

Cost Involved in Divorce Procedure

The cost involved depends on lawyer to lawyer basis, but a decent lawyer would charge Rs. 15,000 - 25,000 for divorce proceedings.

FAQs

How long does Procedure take to get a divorce after marriage in India?

The procedure can take 8 months to 18 months in India.

Is automatic divorce possible to get in India?

There is no such thing as an automatic divorce, but there are some laws related to automatic divorce you can read here.

What is the minimum time to file for divorce after marriage in India?

There is a minimum statutory requirement of one year since marriage for filing a divorce case in court. A petition can be moved before the one-year time limit in some exceptional circumstances, but that is only in exceptional cases that the petition can be heard before the statutory deadline.

One-sided Divorce is Possible in India?

Yes, you can read more about it in our articles named One-Sided Divorce in the Knowledge depository of Rest the Case.

Who pays for a divorce?

Each party bears their own expenses in the divorce proceedings.

Can Both Parties Use the Same Lawyer in A Divorce?

No, parties cannot use the same lawyer in a divorce case.

Is it possible to file for divorce online in India?

In addition to the new divorce law, the parties are also able to apply for a divorce online.