Under the Hindu Marriage Act, Mutual consent divorce procedure in India is governed by Section 13-B. The process involves the following steps
Draft a petition stating the reason for seeking a mutual consent divorce and both the parties have agreed on it.
Appearance before the court by both parties:
File the petition jointly through respective lawyers before the family court. The court will inspect the petition and if necessary, may also try to bring reconciliation between the spouses.
Order to record statements on oath:
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.
First motion and 6 months cooling period:
Once the statements are recorded, an order on the first motion is passed by the court. After this, a cooling period of six months’ time is given to the parties in the hope of their reconciliation.
Second motion and final hearing
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.)
In the final hearing, the court passes the mutual consent divorce decree dissolving the court marriage
Documents for divorce procedure in india – Mutual consent divorce
Contested divorce procedure in india have some grounds
“Just another of our many disagreements. He wants a no-fault divorce, whereas I would prefer to have the bastard crucified.”
J. B. Handelsman
Section 13 of the Hindu Marriage Act, 1955 expounds grounds on which contested divorce procedure in India can be obtained.
Sexual relations with someone out of the marriage.
wilfully abandoning another without any intention of coming back for more than two years
If either of the spouses ceases to be a Hindu
Unsoundness of mind, mental illness, or such mental disorder which makes the person abnormally aggressive.
Communicable Diseases and Leprosy
Leprosy is a contagious and chronic disease that causes lesions on skins and nerve damage.
Spouse not heard of
If either of a spouse is not heard of for more than seven years
Renunciation of the world
If either of the spouses has renounced the world and has entered a holy order.
There are three other grounds for divorce procedure in India available only to the wife which are:
Husband has been guilty of rape, sodomy or bestiality.
The wife was married before the age of fifteen.
A decree or order has been given by court awarding maintenance to the wife and they have not been living together for more than one year
Contested divorce procedure in India
Draft a petition clearly stating the facts and grounds for seeking a contested divorce procedure in india along with documents relevant to the case.
Notice to the other party by the court
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.
Suggestions for mediation
The court will suggest parties for mediation and if the mediation fails to resolve the issue, the court will continue with the divorce proceedings.
Recording of statements and submitting evidences
Both the parties will appear before the court, record their statements, submit evidence, get cross-examined and will present their witnesses if any and present the final arguments
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 for divorce – Contested Divorce
Where to file a petition for the divorce procedure in india:
1. The court can be one where couple seeking divorce last lived.
2. The court can be one where the marriage was solemnized.
3. The court can be one where the wife is residing as of present.
Custody of child after divorce in India
So glad that mom and dad got their revenge on each other by holding out on my child support
Said no child ever!
It is a very important and sensitive aspect of a divorce and the court for the divorce procedure in India looks into several factors like:
Safe keeping of the child
Ethical upbringing of the child
Good education to be imparted
Economic well-being of the guardian
Physical Custody Of child
The child shall be living with one of the parents, and the other parent can visit and meet the child making sure that the child has a safe and healthy environment to grow.
Joint Custody of child
Instead of living with one parent, the child can live with both parents in rotation. The time duration can be decided by the parties or the Court. It helps the child to be in touch with both the parents.
Legal Custody of child
The parent who has legal custody means that he/she has the right to take a decision for his/her children. Generally, legal custody is given to both the parents, unless, the court thinks that there will be a conflict between the parents, and they would never agree with each other.
Third-Party Custody of child
If neither the father nor the mother is fit to take care of the child, the court can appoint the third party to act as guardian.
What is the cost involved for divorce procedure in india?
You know why divorces are so expensive? Because they’re worth it.
The court fee of a divorce procedure in India is nominal at Rs 15, but the bulk is taken up by lawyer’s fees. While women can avail of free legal services by getting an advocate from the legal aid cell, private lawyers’ fee can vary from Rs 10,000 to Rs 1 lakh, depending on the type of divorce and duration involved.
Advocates can charge on the basis of each hearing or as a lump sum on an annual basis. Women can also ask for litigation expenses from husband via court, but the amount granted by the court is usually less.
FAQs for the divorce procedure in India
What Happens When the Married Couples Are Living Separately for Many Years?
It is a valid ground for divorce procedure in India but, there is no provision under the Hindu Marriage Act which provides for automatic dissolution of marriage. The dissolution of marriage as per custom and usages is one of the modes of dissolution of marriage recognized under the law. In general, the marriage can be dissolved only by recourse to the provisions contained in the Hindu Marriage Act.
What Happens When Consent To Divorce is Obtained by Force, Fraud or Undue Influence?
The provisions of section 23(1)(bb) of the Hindu Marriage Act require the Court to satisfy itself that consent for divorce under section 13-B has not been obtained by force, fraud or undue influence.
It is court’s duty to figure out the reasonableness of the case and to ensure while looking at the facts that the consent is not viciously obtained. An appeal against the decree of divorce is allowed as there can be situations where even court fails to ensure that consent given for divorce is not free.
What is the minimum time period required to file divorce case?
A divorce petition can be filed even within a week after marriage if there is extreme hardship which has to be pleaded specifically. In the absence of extreme hardship a petition for divorce is not maintainable before a year from marriage. What constitutes extreme hardship depends upon the peculiar facts and circumstances of the case
Are there different laws of divorce for different religion in India?
There are different laws of divorce for different religion.
Hindus (which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.
Christians are governed by Indian Divorce Act-1869 & The Indian 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 called Special Marriage Act,1954.
Can the spouse consent for remarriage without getting divorce from existing partner?
Remarriage without getting divorce is a punishable offence with seven years imprisonment.
Can I get a divorce if I have not has a registered court marriage?
1)Non registration does not affect validity of marriage
2) marriage invitation cards , wedding photos are sufficient to prove marriage