When Can You Apply For Divorce After Marriage?

An individual taking the decision to divorce is, of course, one of the most emotionally trying and dramatic choices faced by a human being. The need to know some law about divorce becomes paramount at such a time. One of the first amongst many questions that people usually ask is how long after marrying can they legally file for a divorce. The matter is far more complicated than it seems at first instance. Various factors come into play in determining the timeline within which one can commence a divorce application, one of which is the law in force in that area. The jurisdiction that is competent, affects eligibility, and waiting periods. Furthermore, these granted grounds, on which the divorce is being applied for, can sway the timeline on which the divorce can be applied for.

While reading this blog, you would get to know about

• Legal Requirements and Exceptions to apply for divorce after marriage.
• Types of Divorces as per Hindu Law and their timelines
• Case Laws.
• Relevant FAQs.

Is There A Minimum Time To Apply For Divorce After Marriage?

The Hindu Marriage Act prescribes a minimum period that must elapse after the marriage ceremony before a divorce petition can be laid before a court. The provision is made with the oblique intention of compelling couples to make a genuine effort to reconcile their differences and prevent rash decisions based on a passing bout of marital discord.

Legal Requirement

According to Section 14 of the Hindu Marriage Act, 1955, in India, a law that governs marriage and divorce among Hindus, the waiting period before filing a divorce petition is stipulated by the law itself. The Section states that a petition for divorce is not decreed in the court until the expiration of one year from the date of marriage until the presentation of the petition.

The provision mentions that a petition for divorce can only be filed after the expiry of one year from the date of the marriage ceremony. The intended purpose is to ensure that the marriage has had sufficient time to settle down and that the newly married couple has resolved initial conflicts and problems. Thus, the societal interest in the maintenance of the institution of marriage and discouragement of hasty dissolutions is also reflected by it.

Exceptions And Rare Circumstances

Although the one-year rule serves as a general guide, in exceptional and truly dire situations, the exception rule requires that the application of the waiting period be set aside in order to exclude the oppression or injustice that would otherwise result from such strict adherence.

Section 14(1) of the Hindu Marriage Act of 1955, however, allows for a very important exception to this rule as it states that: Provided that on an application made to the court in accordance with rules made by the High Court in that behalf, divorce petition may be presented within a year of marriage on the ground that it is a case of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.

Section 14(2) adds further consideration in that, in disposing of any necessary application under this section for leave to present a petition for divorce within a year from the date of the marriage, the court has regard to the interest of any children of the marriage and whether there is, at present, a reasonable probability of reconciliation between the parties before the expiration of such period.

Understanding The Divorce Types And Their Timelines

The estimated amount of time until the divorce is finalized may vary because of the specific type of divorce the parties choose to pursue.

Mutual Consent Divorce

Mutual consent divorce occurs when both spouses willingly agree to divorce. The spouses have also reached a consensus regarding all relevant issues for the divorce, including alimony, child custody, and division of property. Mutual consent divorce is usually quicker and less contentious than a contested divorce.

One-Year Marriage Requirement

The fundamental one-year rule from the date of marriage still applies before a petition for mutual consent divorce can be filed under Section 28 of the Special Marriage Act, 1954, and so too with similar principles typically in place for other forms of personal law, in terms of the fundamental purpose to give the marriage some time to settle.

While the Hindu Marriage Act itself does not provide a one-year rule for mutual consent in the same manner as contested divorce under Section 14, in practice and interpretation, the one-year principle is akin to the process that a court of law could reach reflecting the aim of the legislation to promote the longevity of a marriage.

6-month cooling-off period (can be waived in some cases)

• Once the initial petition for mutual consent divorce is filed jointly by both spouses, the next step is usually a statutory cooling-off period of six months. The purpose of this cooling-off period is to enable the couple a final opportunity to reconsider their decision, preferably with a hope of reconciliation.
• During this time, the court does not proceed with the final decree of divorce. However, if there is no reconciliation, after the six-month term (and no later than eighteen-months from the date of the first motion), the court may pass the decree of divorce if both parties file a second joint petition confirming that reconciliation is not in prospect.
• However, cooling-off periods are not absolute, and under certain conditions, the court may exercise discretion to waive the six-month period.
• Grounds that are typically considered for waiver include an absence of any chance of reconciliation, significant hardship would be caused to one party, or the cause for delay would cause undue suffering. Courts often require heavy reasons and evidence before granting a waiver.

Also Read : Step-By-Step Guide On Mutual Consent Divorce Procedure in India

Timeline Breakdown With Example

• On the day of the marriage, Day 1, the marriage is formalized.
• After one year (Day 366), the couple can file the first petition for mutual consent divorce.
• Then, after about six months (in the vicinity Day 549), if both parties still agree, they can file the second joint petition, confirming their wishes.
• The court will receive the second petition if the court is satisfied on reviewing the petition, and is satisfied that both parties were consenting without any coercion, the decree of divorce may be granted.

Contested Divorce

A contested divorce occurs when one spouse files for divorce on a particular legal basis, and the other spouse either does not agree to the divorce or disputes the terms of the divorce (such as spousal support or child custody). This is usually more complicated and lengthy than divorce by mutual consent.

One-year Rule

It is still applicable with respect to the important basis of the one-year waiting period from the date of marriage before being enabled to file a petition for divorce under Section 13 of the Act (dealing with grounds for contested divorce).

Timeline Based On The Complexity Of The Case

The timeline for a contested divorce is highly variable and depends on numerous factors, including:

• The specific grounds for divorce are alleged.
• Whether the other spouse contests the divorce and the nature of their defense.
• The complexity of issues related to alimony, child custody, and division of assets.
• The workload and efficiency of the court.
• The cooperation (or lack thereof) of the parties and their legal counsel.

Is It Possible To File For Divorce Before One Year?

While the general rule prescribes a one-year waiting period awaiting response, at the same time, it is expected that enforcement be required to relax its requirements under exceptional circumstances.

Some valid reasons for divorce within one year of marriage are:

• Severe Cruelty: If one spouse has exhibited very serious incidents of physical or mental maltreatment against the other spouse, who has made the marital relationship unsafe or completely unbearable to remain in.
• Desertion: If a spouse has abandoned the other spouse for an unbroken duration of time, and it is apparent that it is intended to be a permanent abandonment of the marriage, which occurred soon after the marriage commenced under very deplorable circumstances.
• Adultery: If a spouse has committed an act of sexual intercourse with another person outside of the marriage, soon after the marriage commenced, and that act has caused further damage to the marital relationship.
• Unsoundness of the mind: If during the time of the marriage one spouse was not of sound mind or develops an extreme and incurable disorder of the mind shortly after the marriage, therefore cannot lead a normal marital life.
• Venereal Disease: If one spouse was already a virulent, incurable sufferer of some form of venereal disease at the time of marriage and did not reveal that to the other spouse.
• Bigamy: If a spouse has been previously married at the time of the current marriage, making the current marriage void ab initio.
• Rape, sodomy, or bestiality: If the husband, after the marriage has committed a rape, sodomy, or bestiality.

Exceptions Where A Divorce Can Be Filed Earlier In Cases Of Exceptional Hardship Or Depravity

As stated in Section 14(1) of the Hindu Marriage Act, the main legal ground to file for divorce within one year is the existence of exceptional hardship to the petitioner or exceptional depravity of the respondent. The examples listed above usually fall under these broad categories.

Real-Life Examples

• Case of severe and continuous domestic violence immediately after marriage
• Case of the husband discovering his wife was fraudulently induced into the marriage and continues to be subjected to severe emotional distress.
• Case of one spouse engaging in shocking and morally reprehensible conduct shortly after marriage.

Case Laws

A few case laws based on divorce after marriage are as follows:

Priyanka Maity (Ghosh) vs. Sabyasachi Maity

In the Priyanka Maity (Ghosh) vs. Sabyasachi Maity case, the High Court of Calcutta stated that Section 14(1) prohibits courts from entertaining petitions for divorce made within one year of marriage unless the party demonstrating exceptional hardship or depravity is shown. The wife's petition was also considered under the proviso as it did recite hardship immediately after the marriage. While the motion to dismiss the wife's petition was denied, the court did indicate that for hardship to justify early intervention, the hardship must be exceptional. The court. recognized that from the drafting of the proviso, the legislature was intent on encouraging reconciliation during the first year of marriage.

Indumathi vs. Krishnamurthy

The Madras High Court in Indumathi vs. Krishnamurthy case, ruled that while Section 14(1) prohibits entertaining divorce petitions before one year, the latter part permits presenting such a petition before one year with leave of the court based upon exceptional hardship or depravity. The Court explained that "entertaining" means to adjudicate a petition, but the clear use of both "entertaining" and "presentation" means that, absent leave, the one-year period must generally have encompassed the date of filing.

Tips For Couples Considering Early Divorce

For a couple thinking about divorce in just one year of marital life, it is very important to deal with it with a great deal of circumspection, bred in informed decision-making.

Seek Professional Legal Advice Immediately

Seek out an experienced divorce attorney to learn about your rights, the relevant laws in your situation, and what processes to follow if you need to have an early divorce. They can tell you whether your situation might qualify for one of the exceptions to the one-year rule, and advise about what steps to take.

Gather evidence

If you think your matter involves extreme hardship or extreme depravity, then you should start to collect any evidence you think would support your claims. This can include medical reports, police reports, communication logs, witness statements, etc.

Attempt reconciliation

Though you may be contemplating divorce, you should consider making a reasonable effort (unless there are safety issues) to repair the relationship through counseling or mediation. This may help show the court that you explored all alternative options.

Be prepared for a rigorous legal processē

When an application for early divorce is founded on exceptions, the proceedings often become more technical if not scrutinized. So be ready with your evidence and prepare to counteract any possible offering by the other spouse.

Conclusion

Unlike property settlements that have no time limit, divorce petitions are granted to exclude those who are more likely to disrupt the stability of a family formed by marriage. While the sweeping provision in many jurisdictions (including the HMA in India) is for a period of a year from the date of marriage, exceptions can be made if the petitioner suffers exceptional hardship or if the respondent exhibits exceptional depravity. A divorce can only be granted on an application to the court, with ample particularity including documentary evidence, and will always be in the courts discretion, taking into account the welfare of any children and the possibility of reconciliation.

FAQs

A few FAQs are as follows:

Q1: How soon after marriage can I file for divorce in India?

Ordinarily, a one-year waiting period applies under the Hindu Marriage Act from the date of marriage before a divorce petition is filed. However, if proved before the court that the petitioner has been experiencing exceptional hardship, or the respondent's behaviour has been exceptionally depraved, the Court may grant leave to file before a year has elapsed.

Q2: Can I get a divorce before one year of marriage in India?

Yes, it is achievable to file for divorce in India before completing one year of marriage, as long as you can prove extraordinary hardship or extraordinary depravity to the court and get the permission of the court to do so.

Q3: How long does a mutual consent divorce take after marriage?

Usually, in India, you must be married for at least one year (with respect to actual practice), and then there is a compulsory six-month cooling-off period after filing the first petition. The courts sometimes relieve you from this six-month cooling-off period.

Q4: How long does a contested divorce take after marriage?

A contested divorce usually requires that you have been married for one year before filing. The timeline of a contested divorce varies drastically, and can easily take a year to several years depending on the complexity of the case and other factors.

Q5: Should I consult a lawyer if I'm considering divorce within the first year?

If you're thinking about a divorce within the first year of marriage, it's advisable to consult an experienced divorce lawyer at once to understand your legal rights and options.

Disclaimer: The information provided here is for general informational purposes only and should not be construed as legal advice. For personalized legal guidance, please consult with a qualified family lawyer.