DIVORCE and its PROCESS IN INDIA

The divorce process in India is specified by the law. Like the marriage procedure, even the divorce needs to fulfill all the formalities which are specified, otherwise, it shall not be a valid divorce.

The divorce procedure is different in different situations. There is mainly two types of divorce procedure – one is mutual consent divorce and another is contested divorce.

Depending on your situation, your divorce consultant shall file for divorce in the following procedure.

Here are the details regarding each of the procedures are explained below:

MUTUAL DIVORCE

The mutual divorce is explained under Sec. 13B of the Hindu Marriage Act 1955 and Sec. 28 of the Special Marriage Act 1954, where the spouses both agree to separate peacefully. In this, they take their own decision by agreeing with each other and seek the help of the judiciary to give their separation a legal status.

Here, one thing which is required to be mentioned that the divorce procedure must fulfill all the required formalities, otherwise it will bring several hassles in the future, especially in remarriage and inheritance.

The total procedure of mutual consented divorce does not take much time, rather it gets completed within 8-10 months on an average if all the formalities are performed in a prescribed way.

The procedure for mutual divorce can be briefed up in three steps:

  • Petition: Petition means the application which is presented before the court stating the matter and claims in brief. In mutual divorce, the parties have to file a joint petition. Along with the petition, they can file an application in essence of the decision they have taken regarding alimony, property separation, child custody etc.
  • Hearing:The court fixes a date for the hearing, on that date, the couple requires to be present in court. The Magistrate quoting the demands of the couple, asks them whether it is true and they consent to it voluntarily or not.
  • Order: In case the couples have decided on every matter previously, the court passes an order approving them. If certain matters like child custody, alimony or property separation have not been reached to a decision by the couple, the court passes an interim order (temporary till the final order is passed) till it analyzes the facts and circumstances. After analyzing the court passes a final order, and the interim order ceases.

CONTESTED DIVORCE

In comparison to mutual divorce, a contested divorce is a bit more time to consume and complicated too. It is actually the last resort when one party wants to separate but the other party is reluctant to it.

For filing a contested divorce, there are certain grounds which are mentioned under Section 13 of the Hindu Marriage Act 1955 and Section 27 of the Special Marriage Act 1954:

  • Cruelty:Cruelty means both physical and mental cruelty by the wife or her family members. Mental cruelty can be excessive demands, blackmailing, defamatory actions etc.
  • Desertion: If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
  • Conversion:In case either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
  • Mental Disorder:Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.
  • Leprosy: In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
  • Venereal Disease: If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
  • Renunciation:A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
  • Not Heard Alive: If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.
  • No Resumption of Cohabitation: It becomes a ground for divorce if the couple fails to resume their cohabitation after the court has passed a decree of separation.

If your case is falling under any of the above-mentioned grounds, you can go for a contested divorce, which your divorce lawyer shall file in the step by step method mentioned here:

Step 1: Your lawyer shall draft a petition stating the reason for divorce and other relevant matter, and present it before the court, along with vakalatnama,

If you are living separate from your wife, you need to mention that since how long you two are separated.

Step 2: The court shall go through the petition, analyze the points and jurisdiction on which it has been filed, to accept or reject to hear the case. In case, the jurisdiction is not appropriate, the court refers it to the proper jurisdiction, where you require to file a fresh petition.

On acceptance, the court sends a notice to the wife to file a reply to the petition, which is called a written statement. In the written statement filed by the divorce lawyer from your wife’s side, shall reply on each point either accepting or denying, and can add certain extra facts to that relevant to the case to show her side a stronger one.

Step 3: On receiving the written statement, the court gives you another chance to explain your part in the context of the extra fact that has been mentioned on the written statement, but been missing in your petition.

On receiving such reply, the court now prepares to proceed with its operation of hearing the parties.

Step 4: The court fixes a date, on which it questions both the parties personally, and note down the replies.

Step 5: Based on the petition, written statement and the replies to the questions asked by the court, the argument starts.

Here, you can have two motives – to avoid paying alimony and give any share of your property to your wife as it was her choice to cheat on you, and custody of your child, in case you feel the influence of a mother who can cheat on her husband is not good for your child.

While proceeding with the arguments, you can present the evidence supporting your side, and the court shall analyze those pieces of evidence.

Step 6: As divorce is a lifetime decision, moreover when a child is there, the present, as well as the future of the child, is at a risk, the court wishes to solve it in the least harsh manner.

The Court can send the matter for mediation, where both the parties along with their lawyers, or without them, shall sit with a mediator, chosen by them or by the court and decide each and every factor that is causing trouble in the marriage.

The aim of the mediation is to find a way out to save the marriage, and if it is not at all possible then part away the ways agreeing on the facts, not imposing the divorce on any of the parties.

Here the mediator is a professional marriage counselor mainly, who suggests a way trying the best to satisfy each of the parties. If they agree to that, the mediator and the parties sign a report mentioning each of the agreed points and forward it to the court. The court then passes a decree or order attaching the agreed points.

If no solution is out even after the mediation procedure, the court proceeding continues.

Step 7: The court after analyzing all the discussed facts, passes a decree of divorce, explaining each part, whether any alimony is to be paid or not, who shall get the custody of the child and any other relevant factors.

Depending on the situation, the child custody matters are dealt with separately by the court.

In this way, a divorce procedure ends. As it is already been explained that it involves several legal formalities to be completed, it is really important to hire a right divorce lawyer to handle your case for a speedy resolution and handles the situation if your wife tries to complicate the matter more or tries to delay it.

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