The divorce process in India is quite broad because India is a secular country. This includes many religions, like Hinduism, Islam, Christianity and others. The law provides for proper framing of these laws for each religion to protect religious sentiments while maintaining a balance between religion and law. In this article, you will learn all about the divorce procedures in India, including mutual consent and the contested forms of divorce, followed by the legal provisions of different religions.
Before proceeding with the divorce procedure, you need to determine the type of divorce you are seeking. There are two different types of divorce in India. Here they are explained:
- Divorce by Mutual Divorce: When a man and a woman decide to end their relationship and divorce by mutual consent, they can apply for a divorce by mutual consent. In simple terms, a divorce by mutual consent is when the couple separates by mutual agreement.
- One-Sided (Contested) Divorce: When one spouse opposes to a mutual divorce or when there is a disagreement between them about property, children, or alimony, the divorce is referred to be contested. To learn more, read a comprehensive guide on one-sided divorce in India.
Legal Procedure for Divorce in India
The legal procedure for divorce in India involves specific steps, which vary based on the type of divorce sought. Below, we outline step-by-step procedures for obtaining both mutual consent divorce and contested divorce.
Divorce Procedure in Case of Mutual Divorce
Here are the steps you need to follow to apply for a divorce by mutual consent:
Step1: Filing the petition with the family court
Both spouses file a joint petition for dissolution of marriage and decree of divorce with the family court, claiming that they are unable to resolve their differences and live together. They have therefore decided to end their marriage by mutual consent or have been living apart for a year or more. The parties must sign this application.
Step 2: Filing the first divorce petition before the judge of the family court
Both parties appear in court together with their legal counsel. The family court judge examines all the documents submitted to the court, including the content of the divorce petition. If the parties are unable to resolve their differences, the court may attempt to mediate them; otherwise, the case will proceed.
Step 3: Combined affidavit
Once the court has considered the application, it may order that the parties' joint statements be taken under oath. Once the parties and their respective attorneys have signed the joint divorce affidavit, the first motion will be granted.
Step 4: First motion and second motion
The first motion is granted and the second motion must be filed within six months. The court issues an order on the first application. Both parties to the divorce are then granted a six-month cooling-off period before they can submit a second application. A second application can be filed no later than eighteen months after the date on which the divorce application was filed with the family court.
Step 5: Final judgment and hearing on the second application
After the parties have decided to continue the proceedings, the final hearing takes place and they appear on the second application. This involves the parties being present and making a joint statement to the family court.
Divorce Procedure in Case Contested Form of Divorce
Here are the steps you need to follow to apply for a contested form of divorce:
Step 1: Filing a petition with the court
In India, for a contested divorce, an application has to be filed with the required documents. The family court in the respective district will receive this petition. The other party, the husband or wife, is then served with the divorce notice.
Step 2: Response to the notice
Now the spouse or other party who received the Notice of divorce must write a response addressing all the allegations made against him/her. If the spouse fails to do so, it is assumed that all allegations are accepted and the decision is made.
Step 3: Court proceedings
After all responses and rebuttals have been presented, the court will set dates for the examination of witnesses, cross-examination of witnesses, and presentation of evidence. The divorce lawyers for both parties present their final arguments at the conclusion of the evidence.
Step4: Final pronouncement
Regardless of whether the divorce is granted or not, the court issues the final divorce decree after hearing all arguments and documents.
Understanding the legal framework and Divorce laws
All religions have their own different legal frameworks and divorce laws. The different religions and their divorce laws are explained below:
Hindu
Depending on the specifics of the situation, a divorce can be filed under a number of sections of the Hindu Marriage Act, 1955. Below you will find the relevant sections and laws:
- Section 13(1): Grounds for divorce include adultery, cruelty, desertion, religious conversion, and mental disorder.
- Section 13(2): Provides additional grounds for divorce exclusively for the wife, such as bigamy or certain sexual offenses by the husband.
- Section 13(1A): Allows for divorce by mutual consent after one year of separation.
- Section 13B: Outlines the procedure for divorce by mutual consent.
- Section 14: Lists grounds for divorce and specifies circumstances for filing a petition.
- Section 15: Details extra justifications for divorce available to wives, promoting gender equality.
Muslim
Sharia law, which differs widely throughout Islamic schools of thought, essentially regulates divorce. Nonetheless, there are certain laws that govern Muslim personal law in various countries, including India. One such law is the Muslim Personal Law (Shariat) Application Act, 1937.
Below is an overview of the pertinent portions and legal provisions regarding divorce under Indian Muslim law:
- The Islamic word for divorce, or talaq, can be pronounced by the husband.
- The Supreme Court of India ruled in 2017 that the practice of "Triple Talaq," which is the practice of getting a speedy divorce by uttering "talaq" three times, is unconstitutional, even though it is still widely practiced.
- The practice of triple talaq is declared unlawful and criminalized by the Muslim Women (Protection of Rights on Marriage) Act, 2019.
Types of talaq:
Talaq-e-Ahsan: A one-time divorce decree followed by a waiting period ('Iddah', often lasting three menstrual cycles) during which no sexual relations are allowed.
Talaq-e-Hasan: Three separate pronouncements of divorce, each occurring during the woman's Tuhr (purity) period, and then a waiting period.
Talaq-e-Bid'ah: Immediate divorce by way of a letter, email, text message or other method, after three consecutive talaq pronouncements made in one sitting. In India, this type of divorce is now prohibited.
Legal requirements:
Muslim Personal Law (Shariat) Application Act, 1937: This Act gives Muslims in India access to Muslim personal law relating to inheritance, marriage, succession and charity.
Muslim Marriage Dissolution Act, 1939: This law gives Muslim women the right to file for divorce in some situations, such as cruelty, abandonment, failure to fulfill marital duties and more.
The Muslim Women (Protection of Rights on Divorce) Act, 1986: This law protects Muslim women's rights to maintenance (mahr), maintenance during 'iddah' and other benefits when their husbands file for divorce.
Christian
The Indian Divorce Act of 1869 deals with divorces related to Christianity. Under Christian law, the grounds for divorce were amended and reformulated. The Act was amended by adding a new Section 10-A and replacing Section 10 with a new clause. Part III of the Act, which deals with dissolution of marriages and divorces under Christian law, and Part IV of the Act, which deals with nullity of marriages, were amended as a result of the Amendment Act, 2001.
Parsi
For a Parsi marriage to be considered genuine, it must also undergo a religious Ashirvad ritual. The term "Ashirvad" means "blessing", a request in prayer or a divine injunction to fulfill the obligations of the partners in the marriage. The Parsi Marriage and Divorce Act of 1936 is a special law that regulates marriage and divorce for Parsis.
Frequently Asked Questions Regarding the Divorce Process in India
Q. Where should I file for divorce?
For mutual divorce, the couple can apply in the Family Court of the city where they last lived together, such as their marital home, where the marriage was solemnized, or where the wife currently resides.
The family court in the city where they last resided together, such as their marital residence, the location of the marriage ceremony, or the wife's present residence, is where the petition for a contested divorce may be submitted.
Q. Can you outline the documentation required for initiating divorce proceedings?
A petition for mutual divorce must have specific supporting papers when it is filed. The following paperwork must be submitted in order to file for a mutual consent divorce:
- Address Proof - Husband and Wife.
- Identity Proof of both Husband and Wife.
- Two Passport Size Photographs- Husband and Wife.
- Four Photographs of Marriage.
- Marriage Card.
- Memorandum of Understanding.
- Evidence of Staying separately for a year.
- Marriage Certificate (If registered).
Documentation requirements have to be met when submitting a petition for a contested divorce. The following paperwork must be submitted in order to file for a disputed or unilateral divorce:
- Photos of the couple together or proof of marriage.
- The husband and wife's Aadhaar cards.
- Marriage Invitation Card Proof of One Year of Separation.
- Evidence of the unsuccessful attempts at reconciliation.
Q. What are the grounds recognized for divorce during the legal process?
In India, there are various grounds for divorce under different laws, such as Hindu, Muslim, Parsi, etc. Some common grounds for divorce in India are:
- Cruelty: A marriage may be dissolved on the grounds of cruelty if one spouse treats the other in a way that makes the other reasonably fear that living with the former would be damaging or hurtful.
- Adultery: It is considered adultery when one spouse engages in consensual sexual relations with someone other than their spouse
- Desertion: A party may file for divorce if the other has been unfaithful to them for a continuous length of time that is at least two years before the filing of the divorce petition
- Mental Disorder: Divorce may be granted if one spouse has been rendered permanently insane or has suffered from a mental illness of a sort and severity that makes it unreasonable for the other spouse to cohabitate with them.
- Religious Conversion: If one spouse leaves the marriage and becomes a follower of a different faith, the other spouse may petition for divorce on this basis.
- Communicable Venereal Diseases: A marriage can be dissolved if one spouse contracts a communicable venereal disease, posing a reasonable fear in the other spouse of potential harm or damage to their health or well-being.
Q. How long does the divorce process typically take in India?
The duration of the divorce process varies depending on the type of divorce:
- Mutual Divorce: Typically takes between 6 months to 3 years. This timeframe includes the mandatory waiting period after filing the joint divorce petition.
- Contested Divorce: Minimum duration is around 3 years, but it can extend up to 10 to 15 years if the case escalates to higher courts such as the High Court (HC) or Supreme Court (SC) due to disagreements or legal complexities.
Q. Can I get a divorce without going to court in India?
Yes, in certain circumstances, such as mutual consent divorce, you can obtain a divorce without going to court. However, in the case of one-sided divorce, the spouse seeking divorce must file a petition in the family court, requiring both parties to attend court proceedings.
Q. Are there any specific waiting periods or mandatory counseling sessions involved?
Yes, in mutual consent divorce cases in India, there used to be a mandatory waiting period of six months, but it is no longer mandatory as per recent legal amendments.
Conclusion
Navigating a divorce can be overwhelming emotionally and legally. Seek support to maintain your well-being and find a trustworthy legal advisor to guide you through this pivotal moment. Protect yourself by ensuring you have expert counsel by your side as you transition through this significant life event. Rest the Case can help you with any legal assistance, including finding a qualified divorce lawyer nearby you.
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