ALL ABOUT DIVOCRE IN INDIA

Vinod Kumar
Jan 18, 2022
5 min read

Updated: Jan 19, 2022

WHAT IS DIVORCE?

Divorce is a process of legal separation or dissolution of one’s marriage with other spouse by an order of court. Our India is a land of different religion, culture, etc., so the law relating to divorce are different to each religion for an example Hindus are governed under Hindu Marriage Act, in case of a Muslim by Muslim Dissolution of Marriage Act, for the Christians are governed under the Indian Divorce Act, etc., because Hindu's treat marriage as sacred and other religion (Muslim) consider marriage as a contract. Therefore, Indian Government has enacted separate law for respective religion.

HOW TO GET DIVORCE?

In Hindu Marriage act, either wife or husband can seek Divorce by filing a petition before Jurisdictional court (in Bengaluru/Bangalore a separate family court has been established for speedy adjudication of a matter), upon adjudication of the matter the Hon’ble Court may dissolve the marriage under following grounds: -

after the solemnization of the marriage, the other spouse had voluntary sexual intercourse (Adultery) with any other person, other than his or her spouse
the other spouse treated the petitioner with cruelty
One spouse deserted the other spouse for a continuous period of not less than two years immediately preceding the presentation of the petition.
The other spouse has ceased to be a Hindu by conversion to another religion.
The other spouse became unsound mind, so that the petitioner could not able to live with him or her.
Suffering from virulent and incurable form of leprosy or venereal disease.
The other spouse has renounced the world by entering any religious order.
The other spouse has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it,
That there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.
That there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
A wife may also present a petition for the dissolution of her marriage: -

If the husband remarries again without divorcing the legal wife.
that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards
that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

WHAT IS JUDICIAL SEPARATION?

The Divorce is the last step to put an end to marital relationship of the parties, whereas the Judicial separation does not put an end to the marriage. It temporarily allows the parties to the marriage to live separately and sufficient time can be available to both the spouses to think over, so that each of the such parties may realize his or her fault.

WHAT IS MUTUAL CONSENT DIVORCE?

Where both the parties agree to dissolve their marriage by mutual consent on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and their marriage is irretrievably broken. Most of the case the parties themselves agreed/settle with maintenance, child custody and any other issues.

WHAT ARE THE CONDITION TO FILE A DIVORCE?

That the both the parties should be married as per their custom and culture.
No petition for divorce to be presented within one year of marriage.

WHAT ARE THE DOCUMENTS REQUIRED FOR DIVORCE?

Marriage photos, Wedding card
Marriage Registration certificate if any
Address proof as last residing together
Documents supports to your grounds Ex;- Adultery- Photos, chats etc., Cruelty- Photos, witness etc.,

WHAT ARE THE PROCESS AND DURATION OF DIVORCE?

Well, this is the toughest question faced by all the advocates who are practicing in India. The duration of the process is subjected to the scope of the case also it requires adjudicate in detail, where one party make accusation and another party deny and it take considerable time to adjudicate the matter.

In contested divorce it takes two to five years and in Mutual consent six to eighteen months, it is pertinent to mention here that rarest Mutual consent case got decreed within a month.

The process or stages are: -

Upon filing a petition for dissolution of marriage, the Hon'ble Court will issue the Summons or Notice to the Respondent.

SUMMONS After serving the Summons/Notice, the Respondent will appear before the court by in-person or through an Advocate.
WRITTEN STATEMENT the Respondent will file a written statement by accepting or denying each allegation by support of his documents.
ISSUES: The Hon'ble Court after perusing the Petition and written statement will form some questionnaires which need to be adjudicate.
CROSS EXAMINATION The Petitioner should file an affidavit in written form and the Respondent counsel will cross the Petitioner, likewise after completion of cross of petitioner the Respondent would file an Affidavit and the Petitioner counsel would cross examine the Respondent.
ARGUMENT & JUDGEMENT The Hon'ble Court will pass the Judgement after hearing from both side.

CAN PARTIES SEEK MAINTENANCE ALONG WITH DIVORCE?

Yes, on application made to it for the purpose by either the wife or the husband, as the case may be, the Hon’ble Court may order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondents own income and other property, if any, the income and other property of the applicant.

LEGAL EXPENSES FOR DIVORCE?

The Professional fees of an Advocate and other expenses are not standard, however there are few offices which offer free services if any person who is economically backward and one such office is ADVOCATE V.

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