What is Divorce?
Divorce in law is a “dissolution of marriage” or “termination of Marriage” or “termination of marital union” between a married couple, who living their lives in marital relations. It is a legal process that ends the marriage before the death of either spouse and can seek under the Hindu Marriage Act, 1955 or Dissolution of Marriage Act, 1939 or Indian Divorce Act, 1869 or under Parsis Marriage and Divorce Act,1936
Types of Divorce in India?
Divorce in India under Hindu Laws can seek by two forms and its totally depends upon the circumstances and by the marriage couple or in other sense “Parties to Divorce”
Divorce by MUTUAL CONSENT – When both are the married couples are just as annoyed with one another and decide for good to dissolve their marriage, a mutual consent divorce can be obtained under section 13-B of Hindu Marriage Act 1955.
Here the word “Mutual Consent” itself suggests that both the parties are mutually agreed with consent and predetermined their issues relating to alimony and child custody etc.
There are mainly two major elements to seek the Divorce by mutual consent.
- There must be Mutual Consent between the parties to divorce.
- They are living separately for at least one year.
How long it does take?
Divorce by Mutual Consent is much easier than others but it is also a legal procedure and consumes time in a legal-proceedings and hence consumes time. The Process of divorce ends up in 2 hearings also referred to as “motions”. The Law prescribes a mandatory period of 6 months before granting the order and after recorded the first statement of divorce in relation to observation between the parties to divorce, with a hope that if there’s any chance to make amends and work the marriage out, the period shall help.
Therefore, the total time to seeking divorce by mutual consent is estimated 7 months including counselling, settlement, documentation, and two motions.
Contested Divorce –When either of party want to seek divorce but another doesn’t want, then the wanted party to divorce files a petition against another with the grounds mentioned under section 13 of Hindu Marriage Act,1955. It is called Contested Divorce when both the parties contest before the court. Grounds for filing a petition under section 13 are as follows –
- Mental Disorder
- Venereal Disorder
- Renunciation of Death
- No Resumption of Cohabitation
- Non- restitution of Conjugal Rights
- Not heard to be alive for more than 7 years
Out of above mention grounds, a petition for divorce can be filled in India. The divorce totally depends upon the clear evidences produced in court. Both the parties has to appear in court with their evidences. On the other hand the woman entitled for several rights like maintenance, child custody, property distribution etc.
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Divorce Petition in India
Petition filing under Mutual Consent Divorce –
Applicable Laws for seeking Divorce
Parties to divorce can file an application for divorce under mutual consent in the following laws, as depends upon the status of the parties—
- Under section 13B of the Hindu Marriage Act,1955,or
- Under section 32B of the Parsis Marriage or Divorce Act,1936, or
- Under section 10A of Indian Divorce Act,1869, or
- Under section 28 of the Special Marriage Act,1954
Other Important Points keeping in mind before filing an petition
- A “settlement agreement” has been drafted and prepared which outlines about child custody, maintenance to wife and children, property distribution etc.
- Before filing a petition of divorce, both the parties must have been elapsed of separation time of at least 1 year or 2 years (in case of petition filed under Indian Divorce Act).
Petition filing under Contested Divorce –
Any party willing to divorce can file a petition before the family court with the well draftedlegal grounds and with proper documents attachedas mentioned under section 13 of Hindu Marriage Act,1955 or section 2 of the Dissolution of Muslim Marriage Act,1939 or section 10 of the Indian Divorce Act,1869 or section 32 of the Parsis Marriage and Divorce Act,1936.
- Drafting of Divorce Petition
- Drafting of Settlement Agreement
- Filing Petition of Divorce to Court
- Drafting of Affidavits and other required documents
Documents Required when divorce filled under Mutual Consent-
KYC (like Adhaar or Voter ID, PAN, 2 Photos) of both the parties i.e. Husband & Wife
Proof of Marriage i.e. Marriage Certificate or Marriage Photographs
Well drafted Settlement Agreement (to be drafted by VK expert)
Any proof of Separation period as specified in Laws.
Any Income Proof like Income Tax Statements or copy of Return showing Income.
Source of Income Details i.e. business or profession details, where he or she is earing.
Other Important Documents & Proof Of Legal Grounds (Required, when petition filed under contested divorce)
Vakalatnama in favour of an Advocate and other Affidavits.
- Filing a petition in Family Court by Petitioner
- Service of Summons to Respondent
- Filing of Reply to the petition by Respondent
- Filing of Replication by Petitioner by counter all the claims of Respondent.
- Trial with evidences.
- Interim Order
- Final Orders
- Appeal (can be filled by un-satisfied party to divorce)
The Divorce is not an easy process in India, it may end in a 6-7 month period or it can take 4-5 years or more as it is depends on matters or settlements.