How to file for a divorce in India?

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divorce

“Divorce is probably of nearly the same date as marriage. I believe, however, that marriage is some weeks the more ancient.” – Voltaire, French philosopher (1694-1778)

In order to obtain a divorce, it is essential to follow the filing process with due care. Every personal law has different filing procedures. This submission discusses about the various modes of filing for a divorce in India.

Law regulating divorce in India:

Both the Centre and the State can legislate on matters pertaining to marriage and divorce in India since it is a matter covered in the concurrent list.[i] India being a diverse country with varied religions, cultures and customs, the personal law is drafted in such a manner that there are specific legislations for individuals belonging to different religions.

  • Hindu Marriage Act, 1955 – governs marriage and divorce for Hindu, Buddhist, Jain, Sikh.[ii]
  • Dissolution of Muslim Marriage Act, 1939 – governs the divorce procedure for Muslims.[iii]
  • Divorce Act, 1869 – governs the divorce procedure for Christians.[iv]
  • Parsi Marriage and Divorce Act, 1936 – governs marriage and divorce for Parsis in India.[v]
  • Special Marriage Act, 1954 – governs all secular and civil marriages and their dissolution thereof.[vi]

Divorce by mutual consent:

Divorce by mutual consent is governed by S.13B of the Hindu Marriage Act, 1955; S.28 of the Special Marriage Act, 1954; S.32B of the Parsi Marriage and Divorce Act, 1936 and S.10A of the Divorce Act, 1869.

The following are the necessary documents required for obtaining divorce by mutual consent –

  • Birth details, address proof and family details of husband and wife.
  • Marriage certificate or any proof of marriage like marriage invitation.
  • Evidence proving that the spouses are living separately since more than the statutory requirement.
  • Evidence of failed attempts of reconciliation.
  • Details of present income and assets.
  • Income Tax Returns for the last 3 years.

The following procedure has to be adopted for obtaining divorce by mutual consent –

1. Both the parties discuss about their alimony, custody of children and separation of assets after which they file a joint petition before the Court. It is imperative that the statutory conditions to be fulfilled for filing of joint petition are satisfied fully. This presentation of joint petition and filing of statements is known as establishment of the first motion.

2. After the joint petition is filed the Court grants a cooling off period for minimum of six months to a maximum of eighteen months. This time period is given to the couple for reconsidering their decision and reconciliation. During the cooling off period, the couple may withdraw the joint petition if they feel that they can reunite and live happily.

3. After the cooling off period is over, the Court conducts a hearing and examines all the necessary records. The Court considers all the factors right from the custody of the child to the separation of assets.

4. If the Court finds that there is an irretrievable breakdown of marriage even after they have lived together for one/two years, as the case may be, the Court shall grant a final decree of divorce by mutual consent.

Contested Divorce:

As the name suggests, contested divorce is when the parties contest and get a divorce. There is no consent between the parties. This is usually due to the commission of any of the matrimonial offences like adultery, bigamy, desertion, cruelty etc. and is based on the fault theory of divorce. The statutory requirements as laid down in the respective personal laws are to be fulfilled before filing for a contested divorce.

The following is the filing process for a contested divorce:

1. Hire a lawyer who will be able to handle your case tactfully and efficiently. Also, ensure that you fix up the fee with the lawyer during the first couple of meetings.

2. Ensure that the relevant documents are supplied to the lawyer who is handling your case.

The general documents required for all forms of contested divorce include –

1. Address proof of husband.

2. Address proof of wife.

3. Marriage certificate or any other evidence to prove the marriage, like marriage invitation.

4. Four Passport size photographs.

The specific documents are as follows:

1. For Cruelty – Evidence to prove cruel behavior, medical reports to prove that the petitioner has suffered from cruelty, statements of witnesses.

2. For Adultery – Evidence to prove single act of adultery / long term adulterous relationship, DNA evidence to prove adulterous relationship (if any).

3. For Desertion – Evidence to show that desertion was not consented to, Evidence to show that there is complete withdrawal by one spouse to carry out marital duties, evidence to prove desertion to be either constructive or actual.

4. For Unsoundness of mind – Medical certificate to show the mental disorder, evidence to show that the petitioner was unaware of the disorder at the time of marriage, evidence to show that it has been reasonably impossible to live with the respondent.

5. For Leprosy – Medical certificate to prove leprosy, statement of doctors to prove the certificate and that the leprosy was virulent and incurable, medical proof that the disease is incurable and is in a serious condition, evidence t show that the petitioner was unaware of the condition at the time of marriage.

6. For Conversion – Evidence witnessing that there has been a formal ceremonial conversion to another religion, conversion certificate.

7. For venereal disease in communicable form – Medical certificate to show that the respondent had a venereal disease which is communicable to other spouse or child any moment of their daily lives, medical certificate to show that the petitioner he/she hadn’t been suffering the disease at the time of marriage and isn’t trying to blame the other spouse in order to hide their own mistakes.

8. For Entering into new religious order – Evidence to prove that the spouse has renounced the worldly affairs, evidence to prove that he or she is not enjoying any marital life; evidence of certain ceremonial performance or observing certain formalities in order to prove that the respondent has entered a particular religious order.

9. For presumption of death – Evidence to show that the petitioner or any of his/her relative has not heard of the missing spouse for seven years, detailed particulars about the last date of cohabitation with details of place and date where the respondent was last seen, evidence to show that an effective search was made, evidence to prove the special circumstances in order to prove “presumed death” before the lapse of seven years.

10. The lawyer has to file a ‘Vakalatnama’ signed by the petitioner. This is a document which represents the authority given to the lawyer to represent the petitioner in the Court.

11. After that, the divorce petition is filed according to the rules of the relevant state’s High Court or lower courts.

12. The Court receives the petition and summons the respondent asking him or her to appear before the Court on a prescribed date.

13. Response by the other party. In case there is no response, an exparte order may be passed.

14. Conducting the trial by examination of witnesses and inspection of documentary evidences.

15. Interim orders may be passed, if any.

16. Advancing of arguments by the representative counsels.

17. Passing of final order of divorce.

Divorce in Islam:

There are two kinds of divorce in Islam, in India. They are:

1. Extra judicial divorce – Where there is no Court intervention. Hence, there is no filing process involved. This is regulated by the Qazis in the Jamaath of the Muslims or by the elders in the family. This extra judicial divorce may be of various types based on who initiated it. For instance,

2. Initiated at the Instance of the husband – Talaaq, Ila and Zihar.

3. Initiated at the Instance of the wife – Talaaq-i-tafweez and Lian.

4. Initiated by mutual consent – Khula and Mubaraat.

5. Judicial Divorce – Where there is Court intervention. This is pursuant to the Dissolution of Muslim Marriage Act, 1939. The grounds are similar to those laid down in contested divorce. Such relevant documents as mentioned earlier are to be presented before the Court of law and the same procedure as in a Contested divorce ensues.

Conclusion:

The legal procedure of divorce is entirely dependent upon the documents submitted by the petitioner. These documents must be genuine and further elucidate the chances of getting the best possible outcome. Hence it is imperative that the litigant and the lawyer should have a thorough discussion and peruse the documents before formally filing in the Court.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[i] Entry 5, List III, Schedule VII, Constitution of India.

[ii] S.2, Hindu Marriage Act, 1955.

[iii] Preamble, Dissolution of Muslim Marriage Act, 1939.

[iv] Preamble, Divorce Act, 1869.

[v] Preamble, Parsi Marriage and Divorce Act, 1936.

[vi] Preamble, Special Marriage Act, 1954. Uses the word ‘in certain cases’.

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Aishwarya Aishwarya Lakshmi VM
I'm AISHWARYA LAKSHMI VM, pursuing B.B.A., LL.B (Hons) at School of Excellence in Law, the Tamil Nadu Dr. Ambedkar Law University and the Professional program of the Company Secretaryship course. My area of interest not only includes corporate, taxation, commercial and economic laws but also environmental law and human rights. I've participated in several national and international moots and won several accolades. I'm also the Secretary of the Moot Court Association of my college. A firm believer in team work, time management and commitment, I always endeavor to be unique and to carve out a space for myself in whatever I undertake. During my free time, I read fiction, listen to music and experiment my culinary skills

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