Divorce Laws: Everything you need to know

A divorce is among the most traumatic occurrences for any couple. To add to this, it can also be a long-winded and costly affair in India if divorce is contested. Divorce is essentially the dissolution of marriage. It is a term used for the termination of the marriage. In India, just like marriage laws, divorce laws can be personal laws, depending upon the religion of the parties.

Divorce under Hindu law is classified into two types :

Mutual divorce: Under the Hindu Marriage Act, Mutual divorce is governed by Section 13-B. As the name suggests, in mutual divorce, both the parties i.e. husband and wife mutually agree and express their consent for peaceful separation. The husband and wife have to predetermine the issues relating to alimony and child custody if any. There are only two requirements for filing a mutual divorce, one is mutual consent and the other is that they have to live separately for at least one year. 

Contested Divorce: When divorce is initiated by either spouse it is termed as a Contested Divorce. Section 13 of the Hindu Marriage Act, 1955 provides the grounds for filing a contested divorce, some of which are, cruelty, conversion of religion, unsound mind, communicable disease or either spouse is unheard of more than seven-year.

Grounds of divorce

A divorce will be granted on the ground that the other party had the following action:

1. After the solemnization of the wedding, had voluntary sexual intercourse with any person other than his or her spouse
2. After the solemnization of the marriage, treated the petitioner with cruelty
3. Deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition
4. Ceased to be a Hindu by conversion to another religion
5. Incurably of unsound mind, or suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably expect to live with the respondent
6. Suffering from leprosy or other such diseases, or disease in a communicable form
7. Suffering from venereal disease in a contagious way
8. Renounced the world by entering any religious order 
9. Not heard of being alive for seven years or more by those persons who would naturally have heard of it.

What is the procedure for mutual consent divorce in India?

Following is the procedure to file for mutual divorce in India:

STEP 1: Draft a petition stating the reason for seeking a divorce and both the parties have agreed on it.

STEP 2: File the petition jointly through respective lawyers before the family court.

STEP 3: The court after the examination of the petition along with the documents will pass on the order for the recording of the statement on oath.

STEP 4: After this, a cooling period of six months time is given to the parties in the hope of their reconciliation. In January 2020, the Supreme Court has waived off the statutory cooling period of 6 months, provisioned earlier in the Hindu Marriage Act of 1955, before granting a divorce.

STEP 5: Post 6 months, if there is no reconciliation, both the parties need to appear for the final hearing. (Parties have to appear for the second motion within 18 months from the date of filing the divorce petition.)

STEP 6: In the final hearing, the court passes the divorce decree dissolving the marriage

There are three aspects regarding which a husband and wife have to reach a consensus. One is alimony or maintenance issues. As per law, there is no minimum or maximum limit of support. It could be any figure or no figure. The second consideration is the custody of the child. This must necessarily be worked out between the parties, as it is inevitably what requires the greatest amount of time in divorce without mutual consent. Child custody in a mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses. The third is the property. The husband and wife must decide who gets what part of the property. This includes both movable and immovable property.

As per the Hindu Marriage Act, the couple should be living separately for at least one year before divorce proceedings can begin. However, as per Section 10A of the Divorce Act, 1869, the couple is to be separated for at least two years. Do note that living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period.

What is the procedure for a Contested Divorce in India?

The contested divorce is filed by either spouse based on the grounds mentioned above. The following are the steps to file for a Contested Divorce in India.

STEP 1: Draft a petition clearly stating the facts and grounds for seeking a divorce. This petition is filed before a family court having jurisdiction along with affidavits, vakalatnama, and documents relevant to the case.

STEP 2: If the court is satisfied after scrutinizing the petition and decides to move with the case, it sends a notice or summons the other party to appear on a decided date along with his/ her lawyer. 

STEP 3: At this stage, the court will suggest parties for mediation and if the mediation fails to resolve the issue, the court will continue with the divorce proceedings.

STEP 4: On a fixed date, both the parties will appear before the court, record their statements, submit evidence, get cross-examined, and will present their witnesses if any. Then the counsels from both sides will present their final arguments.

STEP 5: At last, the court on a fixed date will deliver the verdict and pass a divorce decree. The aggrieved party can appeal to the order passed within 3 months from the passing of such order.

Documents required 

1. Address proof of husband

2. Address proof of wife

3. Photographs of marriage between the husband and wife

4. Certificate of marriage

5. Evidence supporting the ground on which divorce is sought (cruelty, adultery, desertion, lunacy, leprosy, a presumption of death, conversion to another religion, etc.)

6. Professional and Financial proofs

Steps to begin with:

1. Legal Notice: Before anything, you should be aware to produce a divorce notice to your spouse. This is to clarify the emotions and a platform to initiate your thoughts on discontinuing the relationship. Legal notice for divorce will bring in clarity to the other spouse about the future relationship which you want to hold.
2. Alimony: When two people are married, they have an obligation to support each other. This does not necessarily end with divorce. Under the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage. This will include, therefore, either spouse, dependent children and even indigent parents.
3. Property matters: It seldom matters whether you or your spouse own the property. If you are married – irrespective of the fact that a divorce petition has been filed – you have the right to occupy the property.
4. Child custody: Many assume that the mother always gets custody of her children. This is not the case. While the courts usually agree to the decision of the parents in a mutual consent divorce, the courts will look into the best interest of the child.

How much does the whole process cost?

Cost is dependant on multiple factors like Court fees and expenses. Lawyers tend to charge fees towards the drafting of Notice, Petitions, and for Appearance. 

For any further queries, clarifications, and suggestions, please feel free to contact the undersigned author or write to us at protalkz03@gmail.com.