1. What is the procedure involved in getting a divorce from start to end?
- The first condition for obtaining divorce is that the couple had lived separately for at least one year, abstained from performing matrimonial obligations and wanted to dissolve their marriage legally.
- If the application for divorce is by mutual consent, consent of both parties to marriage is required. It is always advisable that the couple should come to the conclusion on the custody of child if they had, return of properties prior to the divorce proceedings in mutual consent cases.
- Party should give Vakalatnama to his/her Advocate whom he/she appointing as his/her lawyer to proceed the divorce proceedings in the family court.
- If it is a contested case, the grounds for divorce under Hindu Marriage Act could be cruelty, adultery, desertion, mental disorder, renunciation, communicable disease, conversion of religion, and inability to cohabit, not heard for seven years (for Muslims it is 4 years). Additional grounds for filing petition include, husband living with wife of his previous marriage held prior to enactment of Hindu Marriage Act, if husband found guilty of rape, or anal intercourse or sexual acts with animals, if the wife awarded with maintenance under Hindu Adoption and Maintenance Act, 1956 or under section 125 of the Code of Criminal Procedure, 1975, and despite this if conjugal relationship between parties failed to resume within one year from the date of order of maintenance, or if wife got married before 15 years of her age and rejected marriage not below 18 years. Applicant should prove the grounds quoted in the Petition for grant of decree of divorce.
- Application to be filed before Court along with proof of marriage, income papers, and property documents if required.
- After filing of the application, court may fix the hearing after six months from the date of application as court thinks that issues between parties could get solved amicably during that 6 months period. Application becomes void on that instance if the parties to Application not appeared before court after the six months period. Also, parties are allowed to withdraw the application within six months period.
- Notice will be ordered to the other party (spouse) in the contested divorce cases upon filing the Petition.
- Counseling may be ordered by Court initially in an effort to bring the parties together for the welfare of the family.
- In contested cases, interim Maintenance, i.e., provision of financial assistance may be ordered by the court if required, during the proceedings or even before the divorce proceedings if the application is filed by the wife depending upon the income status of husband and wife. Court may reject the Petition for divorce if grounds for divorce not proved by the Petitioner with substantial evidence.
- In mutual consent cases, alimony a fixed amount will be decided by the parties, whereas in the contested cases, it is fixed by the court on the circumstances of each party. After hearing the parties if the court satisfied the terms of mutual consent agreed between parties in the aspects of child custody, return of properties, alimony etc., court grants mutual divorce decree to the parties.
- Procedure for obtaining divorce is almost the same under the all religious marriage Acts (personal laws) with slight variations.
2. How can I divorce my husband/wife if he/she doesn't agree with divorce by mutual consent?
- There are many laws prevailing in India that govern divorce under personal laws like Hindu Marriage Act 1955, Christian Marriage Act 1872, Dissolution of Marriage Act 1939 for Muslims, Parsi Marriage and Divorce Act 1936 and Special Marriage Act 1954.
- Seeking divorce from only one partner will become more complicated and demanding it from the other, if the other party does not want a divorce. Fastest way to get divorce is by Mutual Consent under Hindu Marriage Act 1955. If we consider your marriage under Hindu Law then Hindu Marriage Act 1955 applies. Since your wife is not willing to give divorce you can take any of the following grounds as stated under Hindu law for divorce. Adultery, Desertion, Cruelty, Impotency, Chronic Diseases any of these reasons can be applied as the case may be as a ground for divorce. Section 13 of The Hindu Marriage Act 1955 explains about grounds of divorce. Section 13(1) (i.e) explains that marriage can be dissolved by decree of divorce if after marriage the wife/husband has treated the petitioner with cruelty.
3. Where to file a DIVORCE PETITION?
- The divorce petition is in the form of affidavit, which is to be submitted to the family court, After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months.
- After 6 months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.
4. What are the documents required for mutual consent divorce?
- Address proof, passport size photograph of petitioner, marriage card if available, marriage certificate, marriage photographs and ID proof etc.
5. How much will it cost?
- If you hire an advocate, it will be somewhere from Rs 30,000 to Rs 1,50,000.
6. Can I claim or seek maintenance in divorce case proceedings?
- As per section 24 of Hindu marriage act, Maintenance Pendente lite and expenses proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband , order the respondent to pay to the petitioner the expense of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may see, to the court to be reasonable.
7. Can I seek child custody or child visitation?
- As per section 26 of Hindu Marriage Act Custody of children, in any proceeding under the Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such, orders and consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such, orders and provisions with respect to the custody, maintenance and education of such children as, might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.
8. Are there different laws of divorce for different religions in India?
- There are different laws of divorce for different religion. Hindus (which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act, 1995. Christians are governed by Indian Divorce Act, 1869 & The India Christian Marriage Act, 1872. Muslims are governed by Personnel Laws of Divorce and also the Dissolution of Marriage Act, 1939 & The muslim Women (Protection of Rights on Divorce) Act, 1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act- 1936. And there is also a secular law call Special Marriage Act, 1954.
9. How much time does the whole process takes from filing the mutual consent petition in the court till the passing of the decree by the court?
- It takes from six months to one year from the date of filing the petition. It varies from case to case & place to place.
10. If either of the spouses is not heard for a long time, should the divorce be applied?
- If there is proof of the absence of spouse with any information to the other spouse about his whereabouts for a continuous seven years period, a petition should be filed in this regard in the court.